GRIGG v LEWIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 28 February 1994, 28 February 1994 [1994] NSWCA 116 Motor vehicle accident — general damages — economic loss — out of pocket expenses — Motor Accident Act — trial judge's rejection of plaintiff's evidence on fitness to work Clarke JA The appellant was injured a motor vehicle accident on 7 June 1990 when the vehicle in which she was driving was sideswiped. She saw Dr Mark Rischin, a general practitioner, about six days after the accident complaining of neck pain which commenced later on the day of the accident. There was no history of loss of consciousness or pain in the limbs or lower back. The doctor's examination on that day showed mild bruising of her left forearm, mild tenderness of the cervical vertebrae at the C3/4 and 5 levels, neck movements were full and were not restricted and there were no neurological abnormalities. A cervical spine X-ray revealed nothing untoward. The doctor made a diagnosis of a mild flexion extension injury to the cervical spine and bruising to the left forearm. He advised the appellant to take a simple analgesic for pain in her neck muscles and to avoid any sudden movement of her cervical spine whilst there was any pain. He thought that her prognosis was excellent and that there would not be any long-term symptoms. The doctor saw the appellant on a number of occasions following this visit but on no occasion did he examine her, nor was he asked to examine her, in relation to her accident injuries. Her explanation for the fact that she continued to see him for treatment for other conditions but not the accident injuries was that he did not seem to be interested. She was, at the time of the accident, working with the Bay Motel at South West Rocks cleaning motel rooms. She had commenced that employment in January 1989 having, some years earlier, worked as a domestic cleaner. She continued her work at the Bay Motel until January 1991 when she ceased because, as she said, she was unable to continue. On 10 January she saw Mr Richard Coade, a chiropractor. She attended him for treatment initially on a fortnightly basis until March. She then had a break from any treatment and returned to see him in June 1991 "hereafter she continued her treatment on a monthly basis. She sued to recover damages for her injuries claiming general damages, economic loss and out-of-pocket expenses. Liability was admitted. Judge Kinchington, who assessed the damages, considered that the appropriate amount of general damages was nine and a half per cent of what would be awarded for a worst case, which was a sum of $20,045. His Honour rejected her claim for economic loss and awarded, in addition, out-of-pocket expenses of $440. Because of the provisions of s79 of the Motor Accident Act the damages, which were actually awarded, included a component of only $2,545 for general damages. 2 UNREPORTED JUDGMENTS The appellant has challenged two aspects of his Honour's assessment. She says that her injuries and disabilities were such that they should have attracted general damages in a range of 12-13 per cent of the worst case and she complained that his Honour was wrong to reject the claim for economic loss. The findings which were made by his Honour, and which were open to him, were that she had suffered from neck pain and disability with associated headaches from the time of the accident and that, as at the time of the trial she "continues to suffer from intermittent headaches associated with neck pain and pain in her left shoulder". His Honour thought that those symptoms would resolve in the near future after the trauma but was satisfied they resulted from the injury sustained in the accident. His Honour also noted that, while the impairment was not a major one, it certainly was a significant one. As I would understand that observation, it related to the provisions of the Motor Accidents Act. The question is whether the award was below the permissible range for the injuries and disabilities which his Honour accepted. Having regard to the gravity of many of the cases that come before the courts, the fact that the appellant saw a medical practitioner only once for her disabilities, the fact that she could continue to work for six months after the accident and left apparently at the same time as she consulted Mr Coade, and having regard to the low level of findings of disability as at the time of trial, I do not think it is open to this court to interfere with his Honour's assessment of damages. Counsel has argued that the figure of 12-13 per cent would have been more appropriate. I am not sure that is right. For my PtI am inclined to the view that not only was his Honour's assessment within the range, but it was an appropriate one in the circumstances. The argument relating to economic loss was based on the fact that the appellant gave up work because, as she said, she was unable to continue and that this occurred at a time when it was inconvenient for her so to do. The reason why it was said it was inconvenient was that her husband had earlier suffered a heart condition which necessitated surgical intervention and he had been unable to work as a fisherman for some number of months. It is clear that he returned to work some months after his operation but what is not clear is whether this was at the time the appellant stopped work or slightly before or slightly after she took that step. This was an undoubted complicating factor and no doubt led to his Honour's reservations about accepting her evidence that she gave up work because she was unable to continue. There was at the trial a significant conflict of evidence between two medical practitioners who had been qualified to give expert opinions as to the appellant's condition. One, Dr Middleton, who was qualified by the appellant, asserted that she was to a degree unfit to continue work. The other, Dr Black, who had been qualified by the respondent, took the opposite view. For reasons which he gave his Honour accepted Dr Black's view and it does not seem open to this Court at present to interfere with that finding. Dr Black's opinion was summed up in two paragraphs under the heading "Suggested management" and "Fitness for employment". Under the first heading he said he believed she had satisfactorily recovered from her injuries. He thought she required no medical or physiotherapeutical treatment but noted one would have to accept her testimony as to the persistence of symptoms. He thought she was fit for her pre-accident duties as a part-time cleaner who incidentally worked 20-25 hours per week. URJ GRIGG v LEWIS (Sheller JA) 3 It was submitted that the doctor's finding that she had recovered satisfactorily was inconsistent with his Honour's conclusions as to her condition at the time of the trial. I am unable to accept the submission because, while the doctor did say she had satisfactorily recovered, he did not deny that from time to time she might have the intermittent headaches of which the judge spoke. The suggestion, therefore, that the error in Dr Black's report underlaid his final opinion does not seem to me to be supportable. The factor in favour of the appellant is Mr Coade who testified in his certificate that she had a degree of incapacity and from time to time she benefited from treatment. His Honour did not find Mr Coade helpful and placed emphasis almost entirely upon Dr Black's opinion supplemented by its consistency with what Dr Rischin had earlier said. It seems clear to me that while his Honour accepted a degree of symptomatology in the appellant, he was unable to accept her evidence that she was unfit to carry out her part-time employment. No doubt the complications involving her husband's injury and return to work played some part in this process. His Honour's inability to accept her evidence on that matter was very much, no doubt, a result of his Honour's assessment of the appellant and her circumstances and it is not open to this Court to take the contrary view. In regard to the future I do not think his Honour's judgment can be questioned. There is, however, one point. That is that Dr Black saw the appellant a long time after she stopped work and the evidence could be regarded as supporting the conclusion that, in the period prior to Dr Black seeing her, she had, in fact, been unfit for work. This question, again, depends very much upon the judge's assessment of the appellant in the light of the medical evidence and as he took the view - as it seems to me - that she had not discharged the onus of showing unfitness, this finding is one with which the court cannot interfere. In broad terms I would dismiss the appeal for the reasons I have given and also because I do not think there is anything wrong with any of the statements made by his Honour in the judgment under appeal. Accordingly the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. Accordingly the appeal should be dismissed with costs. Counsel for the appellant: M Scott Counsel for the respondent: D Jenkins Solicitors for the appellant: Stacks, Port Macquarie (by their agents Steward Cuddy & Mockler) Solicitors for the respondent: Locke O'Reilly McHugh, Tamworth