NSW INSURANCE MINISTERIAL CORPORATION v TUCKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLY, MEAGHER and HANDLEY JJA 13 October 1994, 13 October 1994 [1994] NSWCA 220 DAMAGES — quantum — general damages interest on past general damages — no question of principle. DAMAGES — quantum — interest on past general damages — whether such interest should have been awarded — held: it should not — accident occurred after s35D(1) of the Motor Vehicles (Third Party Insurance) Act 1942 came into force. Motor Vehicles (Third Party Insurance) Act, 1942, s35D. ORDERS 1. Appeal allowed. 2. Verdict below set aside and in lieu thereof judgment for $107,139.68 substituted. 3. Appellant to pay the respondent's costs. Priestley JA Mr Justice Handley will give the first judgment in this matter. Handley JA This is an appeal by the defendant from the decision of Judge Mahoney given on 31 May 1993. The only issue in the appeal relates to his Honour's award for general damages. His Honour entered judgment for the plaintiff for $114.339.68, which included $85,000 for general damages, $40,000 for the past and $45,000 for the future. His Honour included $7,200 for interest on the past component of general damages but since the accident occurred after s35D(1) of the Motor Vehicles (Third Party) Insurance Act had come into force interest on the past general damages should not have been awarded. His Honour's judgment must be revised in any event to exclude this allowance. The challenge to the assessment of general damages was directed at his Honour's acceptance of the opinion of Doctor Dent, an expert psychiatrist. The plaintiff had a remarkable accident history which his Honour set out which I need not repeat. The problem arises from the fact that on 26 June 1984, a little over three weeks before the accident which has given rise to these proceedings, the plaintiff was involved in another motor vehicle accident at Miami, Queensland, which caused a whiplash injury and led to some medical treatment. The accident giving rise to the present proceedings, which involved the respondent's Porsche car, was a serious one. His Honour said that the impact was violent and that the plaintiff was severely jolted. His Honour found that the accident had exacerbated the plaintiffs existing cervical sprain and had caused soft tissue sprains to almost the whole of his spine. Although these injuries were described by his Honour as "relatively trivial," the plaintiff was predisposed to an unusually severe reaction to any further trauma. This was the result of the plaintiff's fragile personality and the effect of his earlier injuries. As a result of those earlier injuries the plaintiff was already receiving the invalid pension at the time of the Porsche accident. This explains the absence of any claim or allowance for economic loss. 2 UNREPORTED JUDGMENTS Doctor Dent diagnosed the plaintiff in March 1990 as suffering from major depression with some added elements resembling a post-traumatic stress disorder, although the latter was very much secondary or subservient to the former. There was no real dispute as to the nature and severity of the plaintiff's condition. The dispute was rather as to whether that condition was causally-related to the Porsche accident and, if so, to what extent. The plaintiff's accident history reveals two other possible causes. The first was the injury in Queensland on 26 June about three weeks before the Porsche accident and the second is a later injury on 26 December 1989 when the plaintiff sustained a severe blow to the face during an assault in a carpark. The evidence about the accident in Queensland is, to put it mildly, modest. There are passing references to it in the report of Doctor Dent, although there are some relevant discrepancies in the history he received from the plaintiff. There is also a reference to it in the report of Doctor Pepper, one of the plaintiff's treating doctors, in his report of 23 December 1986, and the plaintiff also gave some brief evidence about it in cross-examination. In my view a fair reading of this material as a whole indicates that the impact in Queensland was relatively minor and less likely to be stressful for the plaintiff because it did not involve his beloved Porsche. The blow to the head during the physical assault in December 1989, occurred only some three months before the interview with Doctor Dent and it is reasonably plain that the plaintiffs psychological condition had supervened prior to December 1989. Needless to say the incident in the carpark would not have helped. The principal challenge by the appellant to Doctor Dent's opinion was that the history available to him was incomplete and that, having regard to the real history the judge was not entitled to accept Doctor Dent's opinion in the way he did. In my opinion it has not been shown that any shortcomings in the history taken were likely to be significant in the Doctor's assessment of the plaintiff or in the opinion that he formed as to the causal relationship between the plaintiff's depression and the Porsche accident. The judge found that the Porsche accident was likely to be stressful for the plaintiff because of the anger and frustration he felt because his treasured Porsche had been severely-damaged. As it turned out, within a short time it became apparent to the plaintiff that he would have to dispose of that vehicle and would be unlikely ever to acquire another Porsche. Bearing in mind the established principle that the defendant must take the plaintiff as it finds him, it seems to me that the appellant has failed to establish that the trial judge fell into error in accepting the opinion of Doctor Dent as to the existence of a causal relationship. In these circumstances it seems to me that the appeal fails in substance. However, in view of the erroneous allowance for interest, there must be an adjustment to the judgment. Mr Twomey concedes that the judgment ought to be reduced to $107,139.68. I would propose that the appeal be allowed, that the judgment of Judge Mahoney be set aside and judgment for $107,139.68 substituted, effective from 12 August 1993. This variation should not have any effect on costs and I would propose that the appellant should be ordered to pay the respondent's costs. Priestley JA I agree. I would add that in regard to the trial judge's acceptance of Doctor Dent's opinion, that acceptance was not a simple or mechanical acceptance in an uncritical way of what was contained in Doctor Dent's report. URJ NSW INSURANCE MINISTERIAL CORPORATION v TUCKER (Meagher JA) 3 The trial judge appears to me to have taken into account the various criticisms made here and, no doubt, made below of the report on the basis that it was prepared without the doctor having as complete a history as would have been desirable. The trial judge seems to me to have essentially considered the reasoning of Doctor Dent for himself in the light of all the facts as they emerged at the trial, and to have reached an independent conclusion that the best explanation of the psychological condition of the respondent was that provided by Doctor Dent, notwithstanding that he had arrived at that conclusion himself on fewer materials than were available to the judge. Meagher JA I also agree. 1. Appeal allowed. 2. Verdict below set aside and in lieu thereof judgment for $107,139.68 substituted. 3. Appellant to pay the respondent's costs. Counsel for the appellant: M Elkaim Solicitors for the appellant: GM Meadows Counsel for the respondent: C Twomey Solicitors for the respondent: Turner Whelan