MOUSSA v WESTRAY ENGINEERING PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, CLARKE and COLE JJA 30 November 1994, 30 November 1994 [1994] NSWCA 211 Cole JA The appellant, Amira Moussa, was injured on 4 November 1981 whilst employed by the respondent. She sought and obtained a workers compensation award. Subsequently she sued for damages. In a judgment delivered 9 February 1990, Armitage DCJ found negligence by the respondent employer was established but entered a verdict for the defendant. Armitage DCJ found that the appellant was entitled to the following damages: 1. General damages: (a) Past 17,000.00 (b) Future 3,000.00 2. Economic loss: (a) 4 November 1981 - 12 February 1982 2,100.00 (b) 12 February 1982 - 8 April 1988 NIL (c) 9 April 1988 and thereafter NIL 3. Out of pocket expenses 12,092.09 Total 34,192.09 In addition his Honour held that the appellant was entitled to interest on the past general damages and economic loss, awarded at the rate of 7.5 per cent per annum. The interest was not quantified. The respondent claimed by way of defence an offsetting benefit pursuant to the Workers Compensation Act 1926, s63(5) in respect of payments made to the appellant. Those payments totalled $52,760.04. Once offset, the appellant's entitlement from the respondent pursuant to his Honour's findings was reduced to nil. In those circumstances a verdict was entered far the defendant. The appellant has appealed on grounds that the general damages awarded were "manifestly inadequate", that past economic loss should not have been restricted to the 12th of February 1982 and that future economic loss should have been awarded. In addition the appellant has argued that his Honour erred in failing to adjourn the proceedings to enable a Dr Guigiris to attend to give oral evidence and that his Honour erred in determining he had no discretion to admit the reports of Doctor Guirgis notwithstanding his unavailability. The final ground of appeal was that his Honour misunderstood and misapplied Agri and Anor v DRG Australia Ltd! in relation to concepts of issue estoppel arising from the workers compensation award. 1. (1988) 19 NSWLR 600 2 UNREPORTED JUDGMENTS It is convenient to dispose at once of the grounds of appeal relating to the failure to adjourn the proceedings to allow Doctor Guirgis to be called. Doctor Guirgis had seen the appellant on a number of occasions. His evidence had been important in the findings of the Compensation Court. After his reports had been served upon the respondent, proper notice was given requiring Doctor Guirgis to attend for cross-examination as there was a significant medical issue relating to the condition of the appellant's knee. The appellant's legal advisers were aware that Doctor Guirgis was available to give evidence only on Mondays yet had agreed to the matter being set down for hearing on a Thursday. They had known for three months that Doctor Guirgis would be required. There was no suggestion he had been subpoenaed to appear. Indeed at the time the application for adjournment was made, no contact had been made with Doctor Guirgis regarding his court attendance. It was in those circumstances that on Thursday 9 November 1989, towards the close of the plaintiff's case, an application was made to adjourn the matter indefinitely to a date suitable to Doctor Guirgis. It was not known whether he would be available the following Monday and no application for adjournment to that date was made. His Honour declined to receive Doctor Guirgis' reports unless he was available for cross- examination. His Honour was prepared to adjourn until Friday 10th November, but it was not known whether Doctor Guirgis would appear at that time. Apparently, notwithstanding a luncheon adjournment, the appellant's legal advisers made no contact with Doctor Guirgis presumably because it was know that he would not attend otherwise than on Mondays. In those circumstances his Honour declined to adjourn the matter indefinitely and declined to receive Doctor Guirgis' report. In my view his Honour was clearly right to do so. The appellant's legal advisers had know for three months that Doctor Guirgis was required for cross-examination. They should have ensured that the matter was listed on a date when he was available, or otherwise taken appropriate action by way of subpoena to secure his attendance. Stressing the importance of Doctor Guirgis to the appellant's case, as Counsel for the appellant did in the adjournment application, was self defeating: knowing the importance of Doctor Guirgis to the appellant's case and knowing that he was required for cross-examination should have resulted in appropriate steps being taken to ensure he was available for the hearing. Similarly, no question of power to admit Doctor Guirgis' reports in circumstances of his unavailability arises. His Honour was entitled to, and in my view was correct to reject Doctor Guirgis' reports in circumstances where he was an important witness on a contested medical issue and where his attendance had been required months before for cross-examination. The grounds of appeal relating to non-admission of Doctor Guirgis' reports, or failure to adjourn the matter to permit him to attend, fail. ISSUE ESTOPPEL In his judgment of 8 April 1988 Gibson J, sitting in the Compensation Court, noted that the appellant was paid compensation from 4 November 1981 until 12 February 1982. He found that "it appeared likely that the payments were terminated because of the applicants late stage of pregnancy". His Honour found that: URJ MOUSSA v WESTRAY ENGINEERING PTY LTD (Cole JA) 3 "There are competing medical opinions as to her condition and fitness for work and her degree of incapacity depends to a large extent on an acceptance of her subjective symptoms."2 His Honour thought the appellant "can be accepted as a genuine and reliable witness". However in denying her the benefits of the provisions of s11(2) Workers Compensation Act, his Honour found: "She has not made sufficient efforts to obtain suitable work to persuade me that she is bona fide available and willing to perform suitable light work'".3 Gibson J found that since 12 February 1982 the appellant had been fit "only for selected work not requiring stresses to her right leg". He made an award in her favour pursuant to s11(1) for $65.00 per week from 13 February 1982 and continuing. His Honour also awarded the sum of $9,475 pursuant to s16 in respect of 50 percent loss of efficient use of the lower part of her right leg.4 Both the appellant and the respondent contended before Armitage DCJ that, in various respects, the workers compensation award judgment gave rise to estoppel. Armitage DCJ, relying upon Ex parte Amalgamated Engineering Union v Jackson5 held that the essential ingredients of the decision of Judge Gibson were: (a) the plaintiff was then not bona fide available and willing to perform suitable light work; (b) that on 4 November 1981 she sustained injury to her right knee by way of retro-patellar chondritis; (c) that from 12 February 1982 until 8 April 1988 she was fit only for selected work not requiring stresses to her right leg; and 4. the within the terms of s16 Workers Compensation Act 1926 she suffered a 50 percent loss of the use of the lower part of her right leg. Contrary to the view formed by Judge Gibson, Armitage DCJ was of the opinion, having seen and heard the appellant in the witness box, that: "Tn my view the plaintiff was an unreliable witness, prone to exaggeration and determined to avoid answering what she regarded as difficult questions.''6 In respect of the claim for economic loss from 12 February 1982 to 8 April 1988, his Honour found that the appellant: "Was fit for light work only but that she made no real effort to get it. In my view she did not want to work and was content to remain unemployed for reasons other than her physical ability to perform her duties."7 His Honour also held that: "In my view although injury (to the knee) may well have caused some discomfort in the months immediately following the event which occasioned it its major effects have now long since passed."8 In relation to the claim for economic loss after 9 April 1988, Armitage DCJ found that: "Since that date she has been capable of performing her pre-accident duties and that she has made no real effort to get work." In respect of the economic loss claim for the period 12 February 1982 to 8 April 1988, the period during which Judge Gibson had awarded $65.00 per week for patrial incapacity, Armitage DCJ, in rejecting that claim because he found that Appeal Book, at 58 Appeal Book Appeal Book, at 58 (1937) 38 SR 13 Appeal Book, at 141 Appeal Book, at 141 Appeal Book, at 141 SIAM RYWN 4 UNREPORTED JUDGMENTS the appellant was fit for light work only but had made no real effort to get such work but was content to remain unemployed "for reasons other than her physical ability to perform her duties", stated: "My findings in this regard are made quite independently of any restrictions by way of estoppel which may be imposed by the findings,made by his Honour Judge Gibson."9 In reliance upon the decision in Egri and Anor v DRG Australia Ltd!0, the appellant contended that his Honour erred in the following respects: "(a) In holding that a previous finding in the Compensation Court of New South Wales that the Appellant was not bona fide available to perform light work founded an issue estoppel. (b) In failing to award the Appellant damages for past economic loss from 13th February 1982. (c) In holding that the Appellant was an unreliable witness prone to exaggeration. (d) In holding that "although the injury may well have caused her discomfort in the months immediately following the event which occasioned it, its major effects have now passed. (e) In accepting and relying upon the medical opinions of Dr Scarf and Dr Berns which had previously been rejected by the Compensation Court and whose opinions were not based upon correct assumptions, namely the estoppel arising from the Compensation Court findings. (f) In failing to assess damages on the basis of the estoppel, namely on the basis that: (i) the Appellant suffered an injury to her right knee by way of retro pattellar chondritis. (ii) The condition was continuing as at the 8th April, 1988. (iii) The condition was permanent and result in a 50 percent permanent loss of use or of the efficient use of the lower pan of the Appellant's right leg. (iv) As a result of her injuries, the Appellant has been partially incapacitated for work from 13th February, 1982 to date and continuing. (v) By reason of her injuries and resulting incapacity the Appellant sustained an economic loss of no less than $65.00 per week from 13th February, 1982 to 8th April, 1988. (vi) In view of the respondents conduct of the trial in not adducing evidence or making submissions that the Appellant's condition had altered and in view of the finding of a 50 percent permanent loss of use of the lower part of the right leg in failing to make an award of damages for economic loss between 9th April, 1988 and 9th February 1990 and for the future." In my opinion in relation to each of these asserted errors of the trial judge, the position is as follows: (a) His Honour did not find that there was an issue estoppel arising from the award that "the appellant was not bona fide available to perform light work". His Honour found that from 12 February 1982 to 8 April 1988 "she was fit for light work only but that she made no real effort to get it"!!, but that finding was made "independently of any restrictions by way of estoppel which may be imposed by the findings made by his Honour Judge Gibson".!2 9. Appeal Book, at 141 10. (1988) 19 NSWLR 600 11. Appeal Book, at 141Q 12. Appeal Book, at 141S URJ MOUSSA v WESTRAY ENGINEERING PTY LTD (Cole JA) 5 (b) The question whether from 12 February 1982 to 8 April 1988 the appellant suffered a total or partial or no reduced capacity to work as a result of the accident was a matter "legally indispensable to the conclusion" of Judge Gibson. The appellant claimed a continuing total or partial incapacity pursuant to s9, s11(1) and s11(2) Workers Compensation Act 1926.!3 The respondent by its defence asserted that "the appellant is not and was not incapacitated for work as alleged".14 Judge Gibson found partial incapacity during that period and awarded compensation at the rate of $65.00 per week "until the same be ended, diminished, increased or redeemed in accordance with the provisions of the Act". The issue of total or partial incapacity for work was thus before Gibson J and he found partial incapacity stating: "Since 12th February 1982 she has been fit only for selected work not requiring stresses to her right leg". In accordance with Egri there was an issue estoppel between the appellant and the respondent operating to require a finding by Armitage DCJ of partial incapacity to work during that period. His Honour recognised that estoppel and so found. It does not follow, however, that the appellant was entitled to recover damages for that loss of earning capacity during that period. As Dixon CJ, Kitto and Taylor JJ said in Graham v Baker!5: "To be more precise, however, an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution in his earning capacity is or may be productive of financial loss."!6 There would be no financial loss if, for a reason unrelated to loss of or diminution of capacity to work, an injured plaintiff had decided not to work for some definite or indefinite period in the future after an accident. Armitage DCJ found in relation to the period 1982 to 1988 that: "In my view she did not want to work and was content to remain unemployed for reasons other than her physical ability to perform her duties."!7 His Honour was thus entitled to decline to award economic loss for that period. There is nothing to suggest any change in the appellant's attitude to the desire to obtain employment unrelated to any incapacity between April 1988 and the date of the trial before Armitage DCJ in December 1989, or judgment in February 1990. It is clear that at the hearing of the negligence claim it was for the trial judge to determine at that date whether then, and in the future, the appellant had any incapacity to perform work, and whether any such incapacity would result in financial loss. His Honour held that at that time there was no incapacity to work!8, It follows that his Honour did not err in failing to award damages for economic loss from 13 February 1982 in consequence of any applicable estoppel. (c) The fact that Gibson found in respect of the appellant: "I think she can be accepted as a genuine and reliable witness."!9 does not give rise to an estoppel preventing Armitage DCJ from holding that the appellant was an unreliable witness prone to exaggeration. As McHugh JA said Egri?° (at 603): 13. Appeal Book, at 62 14. Appeal Book, at 64 15. (1961) 106 CLR 340 at 347 16. See also Todorovic v Waller (181) 150 CLR 402 at 465, per Brennan J 17. Appeal Book, at 141Q 18. Appeal Book, at 182B 19. Appeal Book, at S8K 20. supra 6 UNREPORTED JUDGMENTS "No estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue." A finding upon credit is not a finding upon an ultimate issue which is legally indispensable to the conclusion. (d) The appellant claimed a s16 lump sum payment of $9,475 in respect of the 50 percent loss of use of the lower part of her leg (right knee). Gibson J ordered the respondent to pay that sum "as lump sum compensation... in respect of 50 percent diminution of the full efficient use of the lower part of the applicant's right leg". The passage in the judgment of Armitage DCJ referred to in this ground of appeal has, however, been taken out of context. Armitage DCJ said: "Tn my view although that injury may well have caused her some discomfort in the months immediately following the event which occasioned it its major effects have now long since passed. Having regard to the view I have taken in relation to estoppel the finding by his Honour Judge Gibson that she suffered injury to her right knee by way of retro-patella condtritus must stand as must the finding that within the terms of s16 of the Workers Compensation Act 1926 she suffered a 50 percent loss of the use of the lower part of her right leg." His Honour thus adopted Gibson J's finding in that respect and took that disability into account in determining general damages. (e) For the reasons referred to by McHugh J in Egri, quoted above, no estoppel can arise to require a second court to adopt the findings of a first court in relation to medical opinions, as such opinions are merely evidentiary facts in the process of proof or reasoning concerning the decision on an ultimate issue. (f) (i) Armitage DCJ so found.?! (ii) See (d) above. (iii) Armitage DCJ so found.?2 (iv) See (b) above. (v) See (b) above. (vi) See (b) above. Armitage DCJ took into account the loss of use of the lower part of the right leg in assessing general damages. Each of the grounds of appeal thus fails. GENERAL DAMAGES The remaining question is the adequacy of general damages. Armitage DCJ awarded a total $20,000 apportioned as to $17,000 for past damages and $3,000 for future general damages. The only injury to the plaintiff was to her knee. The Compensation Court found that she had a 50 percent diminution of the full and efficient use of the lower part of her right leg in consequence. The injury to her knee was a condition described as retro-patello condtritus. Whilst the finding of the Compensation Court is not open to challenge, the evidence accepted by the trial Judge, in accepting the evidence of Doctor Berns and Scarf was that any restriction in knee movement was conscious, that her knee required no further investigation, and that any discomfort or effects from the knee injury had now long since passed. His Honour found that the plaintiff was prone to exaggeration in describing her injuries. The appellant treated her assertedly painful knee with tablets and creams but, apart from an arthroscopy for investigative procedure involving a brief hospitalisation, no other treatment save some physiotherapy has been required. 21. Appeal Book, at 141F-141J 22. Appeal Book, at 141G-141H URJ MOUSSA v WESTRAY ENGINEERING PTY LTD (Clarke JA) 7 In my view it has not been established that the trial Judge's award of general damages is inadequate. I would propose that the appeal be dismissed with costs. Gleeson CJ I agree with the orders proposed by Cole JA and his Honour's reasons. Armitage DCJ gave judgment in this matter on 9 February 1990. In considering the appellant's claims for past loss of wages and loss of future earning capacity his Honour was both entitled and bound to make his own findings of fact on the evidence before him concerning the medical condition of the appellant at various relevant times. He was, however, as he recognised, also bound to give effect to certain estoppels which flowed from the determination of the Compensation Court in 1988. The effect of such estoppels was itself governed in some respects by the findings of fact made by Armitage DCI. I see no demonstrated error in his Honour's findings on the evidence before him, or in the manner in which he approached the question of the operation that was to be given to the estoppels flowing from the determination of the Compensation Court. As I indicated, I agree that the appeal should be dismissed with costs. Clarke JA I also agree and wish only to add two comments: first in my opinion his Honour Armitage DCJ expressed the estoppels which were binding on him too widely, particularly in relation to the finding by Gibson J of a loss under s16 of the Workers Compensation Act 1926. In my opinion the finding made under that section provided no basis for an estoppel inhibiting Armitage DCJ as to the degree of disability suffered by the appellant at any relevant time. However, that finding favoured the appellant and the fact that I think his Honour went too far provides no basis for allowing this appeal. If anything, it supports his honour's ultimate conclusion. My second observation relates to a submission made by Mr Toomey QC that, as there was no evidence of a change in the appellant's condition since the determination by Gibson J, the inference hat was open and should have been drawn was that her condition remained as it had been in 1988 when Gibson J handed down his judgment, and the Judge should accordingly have assessed damages as though her disabilities remained as Gibson J had determined them. I would expect that in some cases the inference upon which counsel relies could, and perhaps should, be drawn; but whether the inference is drawn or not depends very much upon the judge's evaluation of the actual issues conducted before him in the light of the inhibitions imposed by binding estoppels. In my opinion there was plenty of evidentiary material in this case which supported the trial judge's ultimate conclusion and entitled him to decline to draw the inference upon which Mr Toomey relies. I would therefore conclude that there was no basis upon which the judge's conclusion should be rejected. For those reasons, and those given by Cole JA and the learned Chief Justice, I agree with the orders proposed. Gleeson CJ: The orders of the Court will be that the appeal is dismissed with costs. Counsel for the Appellant: B Toomey QC/M Daley Instructed by: Colin Daley Quinn 8 UNREPORTED JUDGMENTS Counsel for the Respondent: A Hewitt Instructed by: Bruce and Stuart Turton