KOPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and CLARKE JJA 28 March 1994, 28 March 1994 [1994] NSWCA 169 DAMAGES — inadequacy — judgment of $18,996.00 — general damages $12,000.00 — objective facts and conduct of trial support initial incapacity of at least six months — held: Upon that footing, general damages of $12,000.00 appealably inadequate — credibility important — new trial ordered. DAMAGES — inadequacy — injured plaintiff recovers judgment of $18,996.00 — no differentiation in general damages of $12,000.00 — proceedings advanced on footing of six months' work incapacity following compensible injury — plaintiff claims that $12,000.00 manifestly inadequate on uncontested facts — contemporaneous medical evidence supports six-month incapacity — trial judge (Viney DCJ) expresses puzzlement as to period of incapacity — no challenge during trial to plaintiff's absence from work for six months, either by judge or defendant's counsel — objective evidence supports incapacity during six month period — held: (1) Having regard to the objective evidence and the conduct of the trial, the general damages allowed were appealably inadequate; (2) The Court of Appeal could not safely reassess having regard to the importance of the credibility of the plaintiff; (3) New trial ordered. Kirby P Before the Court is an appeal from a judgment entered by Judge Viney in favour of the appellant, Huseyin Kopuz. The appellant claims he was injured on 27 April 1986 when he was travelling as a passenger in the front seat of a motor vehicle which he claimed was owned and driven by one Mustafa Isaloglu. It was ascertained that the accident happened when that motor vehicle was hit from behind. A dispute was belatedly raised at the trial by the Government Insurance Office of New South Wales, the respondent, as to whether the appellant was indeed a passenger in the motor vehicle or was the driver. However, Judge Viney found this issue in favour of the appellant whilst observing "I found the circumstances quite suspicious". There was no cross appeal by the respondent against his Honour's finding in this regard, nor could there be, it rested substantially upon the impression which the appellant made upon the learned judge. Judge Viney proceeded to assess damages in favour of the appellant. He directed judgment in his favour in the sum of $18,996.70. The appellant claims that this sum is appealably inadequate. It is made up of but two components which his Honour revealed, namely, out of pocket expenses $6,996.70; general damages $12,000 making a total of $18,996.70 being the judgment entered. There was some dispute about the out of pocket expenses but his Honour allowed those claimed by the appellant. He did not differentiate for the components of the $12,000 allowed for general damages thus he did not indicate what part of that amount was attributable to any finding he made for past wage 2 UNREPORTED JUDGMENTS loss or for loss of earning capacity as to the future or for loss of the enjoyment of life or for pain and suffering past and future which he found on the part of the appellant. This Court has said on a number of occasions that it is helpful to it to have such differentiation identified in the reasons of a judge proceeding to assess damages. It is also helpful to the judge himself or herself for, in identifying the components, the judge will ensure that the mind is addressed to the proper principles in the computation of damages. The appellant's initial injuries were to his head, left knee and back. The injury to the head involved laceration of the scalp, there was bleeding after the initial incident both from the scalp and the knee. He was treated on the spot by an ambulance attendant. He was taken to the Westmead hospital where he was further treated. However, he was released from the hospital later on the same day. He claimed that his continuing disabilities were to the head, back and knee. The appellant's complaint about the judgment entered by Judge Viney, as expressed both in the written submissions and in the oral submissions, can be summarised as follows: - 1. That his Honour did not properly assess the amount to which the appellant was entitled for general damages and economic loss, he simply awarded an undifferentiated lump sum of $12,000 which it was put was manifestly inadequate. 2. He unjustifiably rejected the appellant's claim for damages for the six month period that he was initially off work immediately following the injury, without proper and adequate explanation as to why he did not provide full damages during that period. 3. That he appeared to have made no adequate allowance for the actual wage loss suffered by the appellant during the period. 4. That he had made no allowance for interest or past wage loss. 5. He had made no allowance for the amount which it was said had been proved for loss of overtime. A schedule of overtime loss was presented upon the basis of which the appellant claimed an amount of $8,000 during the period immediately following the appellant's return to work. Alternatively, it was argued that his Honour had failed to give adequate reasons for failing to award damages for such losses. 6. His Honour had made no allowance for loss of earning capacity attributable to the persisting knee disability significant in a manual worker with, as the evidence showed, a poor command of the English language. To the appellant it was therefore suggested that Judge Viney may have impermissably allowed the suspicions which he expressed about the circumstances of the original accident to have affected the provision of damages which he made in favour of the appellant. Such compromise would clearly be legal error. Having found the appellant entitled to damages Judge Viney was obliged to calculate the damages without discount for any of the circumstances of the accident. There was no claim of contributory negligence which in the way the accident occurred was irrelevant in this case. The respondent on the other hand argued that the appellant's credit was the fulcrum of the judgment of Judge Viney. His Honour concluded adversely to the appellant in a number of matters. Those adverse findings were, it was put, immune from correction by this Court. Having regard to the well-known URMOPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) 3 authorities which restrain the interference of this Court in decisions of primary judges which rest in whole or in part upon the impression which litigants or witnesses make upon them. Judge Viney expressed himself as being puzzled as to how such a relatively minor injury resulted in what are described as a long period of absence from work ie six months. He clearly formed the view, and expressed it, that the appellant exaggerated his symptoms. He concluded the appellant had made a good recovery from his injuries and would not be affected as to his future earning capacity. It is clear from the structure and language of his Honour's reasons that he relied significantly upon the reports of Dr John O'Donovan, whose reports were tendered for the respondent, in reaching the conclusion so expressed. However, Dr O'Donovan's first report was not written until November 1988 when Dr O'Donovan first saw the appellant. This was some considerable time after the initial period of six months disability which the appellant claimed as the foothold for his damages judgment. Dr O'Donovan, I should say, was of the view that the appellant had substantially recovered from all of the effects of the injury and that the objective signs on examination did not support the appellant's complaints. The appellant was off work for exactly six months from the date of his injury ie from 27 April 1986 to 27 October 1986. When he returned to work it seems clear that he continued the better part of the activities of his previous job as a factory hand. However, he claimed that he continued to have trouble in the subject knee and that for this purpose he needed further treatment. Certainly an exploratory operation was performed by Dr John Bannister in March 1987. For this the appellant was off work for three weeks. He returned to the same job soon after the operation but he complained that he was restricted in lifting and pushing heavy objects. For these disabilities he asserted he was entitled both to the actual loss of the overtime which he was unable to do and or to an allowance for loss of earning capacity to measure the impact of the subject injury upon him as an unskilled manual worker with limited alternative vocational opportunities. The assessment of the extent of the appellant's disability was complicated by two matters which should be mentioned. The first was that he had been injured in the back in 1985, however, he claimed that this had settled down. In his evidence at the trial he differentiated in the way recorded by his Honour the site of the pain caused by the motor vehicle accident from the earlier accident. The evidence appeared to indicate that he returned to full duties after the initial accident although it is true that he agreed that he continued until some three months before the motor vehicle accident to consult his local doctor in respect of the first back injury. Secondly, the appellant was not able to give a satisfactory explanation as to the purchase of various painkillers. He did not produce at the trial evidence of the expenditures on the purchase of the painkillers. There was no objective evidence by way of x-ray or otherwise to support his complaints of continuing disability. Against the background of the evidence which I have recorded it is clear that this Court must approach the appeal with a great deal of caution both out of respect to his Honour who had advantages which we do not enjoy and in obedience to the authority binding on the Court concerning the approach to the review of decisions resting upon the impression on a trial judge of relevant witnesses. 4 UNREPORTED JUDGMENTS The passage upon which the respondent most ardently latched was the following passage in the reasons given by Judge Viney: "At the outset I was puzzled that for what seemed to be a relatively minor injury he went straight off work for six months. There is nothing in the reports of his doctors to explain why such a continuous absence was necessary nor why no medical intervention occurred to get him back to health. It was March 1987, eleven months after the accident before Dr Bannister did the exploratory surgery and nothing much seems to have eventuated from that. There was no explanation given by the plaintiff for his long absence from work other than that his knee was sore and only gradually improving. Then he went back to work and it is quite clear he was going the same job as before the accident and he has continued to do it. It is clearly not light duties as was suggested and it is equally clear that he has coped with the job fairly satisfactorily." "Upon consideration of all the evidence in this matter I am satisfied that the plaintiff is exaggerating the extent of his injuries and their effects. I find he suffered an injury to his knee, a cut to h is head, some soft tissue injury to his neck and a possible aggravation of a pre-existing low back strain in this accident. I am satisfied he has made a good recovery from those injuries and will not be affected in his earning capacity in the future." I regard this case as standing close to the borderline and I approach it with the authorities to which I have referred held steadily in mind. However, the basic problem for the respondent is presented in the way the matter was conducted at the trial. I should say that the respondent was then represented by different counsel. The judge allowed, as I have said, $12,000 for general damages. If the appellant was entitled to the full amount of the loss of wages in the initial period of his first incapacity, 26 weeks, he was entitled to $8,767.20. So much was not disputed by reference to the wage records. There was a dispute as to whether the appellant was entitled to interest upon that sum. If the appellant were entitled to interest then interest over the four years to the trial at an appropriate rate would produce a further sum of $4,208.26. The dispute concerned not only the extent of the appellant's incapacity during the initial period but also whether during that period the appellant was paid workers' compensation benefits. It was said if he were paid workers' compensation benefits during the period interest would not normally be added, interest being in the nature of compensation for his being kept out of money to which he was entitled. The uncertainty on this point derives from the records which were tendered in evidence. Those records are quite problematical. The employer was asked to indicate whether and, if so, in what sum workers' compensation was paid. Instead of so doing reference was made by the employer to the insurer for workers' compensation benefits but not to any sum of workers' compensation payments made, on the contrary, other records of the employer seemed to suggest that payments made were payments by way of sick pay. However that may be, it is probably satisfy to assume either that workers' compensation or sick pay was paid to the appellant and that therefore the matter must be approached upon the basis that if the appellant was entitled to wage loss for the first six months, as he claimed, he was entitled to $8,767.20. This would be a very substantial portion of the total allowance of $12,000 which his Honour made. In the event that workers' compensation were repayable out of his judgment, a matter not clarified during argument or by the evidence, URMOPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) 5 the deduction would be something short of $8,767.20 but not far short. The result would be that the appellant would accrue a very small net verdict indeed. But the judgment would also be extremely small if measured only by reference to the $8,767.20 for then the amount payable to the appellant for the balance of the matters for which he was entitled to general damages would be only of the order of $3,200 or thereabouts. In my view, upon the premise of six months initial incapacity and a subsequent period of incapacity during the arthroscopy performed in March 1987, such a sum would be appealably inadequate. There is, therefore, posed for the Court the question of whether the allowance of $8,767.20 for the wages lost during the initial period ought properly to have been taken into account by the judge in computing the general damages to which the appellant was entitled? As I have said, the matter is not assisted by differentiation on the part of the judge of the component parts of those damages. But if the appellant is entitled to that sum it would be my view that the judgment cannot stand. For the respondent it was said that the judge must have accepted the evidence of Dr O'Donovan that this related back to the initial period and that the judge was, in any case as he said, puzzled as to why such a period of incapacity followed such an injury. It was also suggested that the judge might have been affected by the fact that at the relevant time the workers, compensation benefits were payable in their full amount for six months only and that it was more than a coincidence that on the six month anniversary of the motor vehicle accident that the appellant had returned to work. If such a consideration did effect Judge Viney it was, in my view, impermissible. It was a consideration never put to the worker in cross-examination. It was a consideration which might have been meet by clarification of the evidence including the employer's records concerning the payment of compensation or sick pay. In any case, the appellant would, as it appeared to be common ground, be obliged to pay the full amount of any compensation back out of his judgment. When, therefore, I turn to the objective facts of the case there is, in my view, more than sufficient material upon which to cause me a sense of grave disquiet about the judgment which Judge Viney entered. The starting point is that the worker undoubtedly asserted that he was off work during the six month period immediately following the motor vehicle accident by reason of the injuries he received in it. At page 15 he said: Q. When did you return to work after the accident? A. I couldn't work for six months. Q. Why did you say you couldn't work? A. Two reasons, knee and back because of those areas I was unable to work. Q. On about 27 October 1986 you returned to work? A. Yes." The judge therefore had before him the worker's assertion that the incapacity during the six month period was related to the knee injury caused in the motor vehicle accident and the back injury, which I take to be that caused in the motor vehicle accident as well. Secondly, there was no contemporaneous medical evidence which said that the worker was fit to return to work during the six month period. 6 UNREPORTED JUDGMENTS Thirdly, the worker was a manual worker with only his labour to sell. That was his background. He was working apparently, without interruption, at least for the months immediately prior to the motor vehicle accident. Fourthly, when he returned to work he returned to, as he said, his full activities although without overtime and proceeded to earn the full basic salary that he had earned prior to his injury. Fifthly, and most significantly, it was not put to him by counsel then representing the respondent that he was not unfit during the whole of the six month period. Specifically it was not put to him that he could have returned to work earlier. The judge expresses himself to be puzzled as to why such a period of incapacity followed the motor vehicle, however, he did not express his puzzlement to the appellant during the course of the appellant's evidence. In fairness to his Honour this might be because the puzzlement only finally formulated itself at the end of the evidence, including the respondent's medical testimony. If this excuses his Honour it does not, in my opinion, excuse the respondent. If the respondent had put the suggestion to the appellant that he could earlier have returned to work, it would have been open to the appellant in his own case to call evidence to rebut, answer or throw doubt upon, that suggestion. Seventhly, during the period of the initial incapacity the appellant was submitted to traction from 27 July 1986 to 1 August 1986 at the Westmead hospital. This is not referred to by Judge Viney. On the contrary, his Honour appears to have assumed that there was no such treatment during the period. He appears to have overlooked this objective fact. Traction is, or can be, an uncomfortable procedure, which would not normally be accepted but for a serious and troubling disability. Eighthly, after the traction the worker returned without undue delay to his work giving a further indication that he was not a person given to slacking. Ninthly, Dr O' Donovan, whose opinion seems to have affected his Honour, did not, as I have said, see the appellant until after the initial period of incapacity and could not therefore express an opinion as to his condition at that time except by relation back. Tenthly, Dr Bulbulia, who was the treating doctor of the appellant at the time, gave evidence that he had treated Mr Kopuz with a cervical collar and analgesics. Certifying him unfit for work initially up to 9 May 1986. He reviewed him on 2 May 1986, removing seven sutures presumably from his scalp. He submitted him to x-rays on 12 May 1986, and although these did not show any boney injury, that would not exclude the incapacity of which the appellant claims. He continued to have pain according to Dr Bulbulia and swelling over the left knee. He was walking with a limp due to pain in the left knee. He attended the surgery at regular intervals and "his condition has been slow to improve". It was in these circumstance that at that time Dr Bulbulia referred the appellant to Dr Bannister for the traction at Westmead hospital to which I have referred. Against the background of these objective facts it appears to me that to deny the appellant the full amount of the loss of wages for the initial six month period, in circumstances where it had not been expressly put to him that he was not unfit as claimed but was fit in a shorter time, amounts to error. It is an error authorizing the intervention of this Court. This Court is not forbidden to intervene by the impressions which Judge Viney had of the appellant's credibility. In my opinion the result is that the allowance which his Honour made of $12,000 ought properly to be taken to include the allowance for the initial period of six months' incapacity. If this is done then that WRPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAY allowance is clearly appealably inadequate. It does not make proper provision for the pain, suffering, inconvenience, disturbance of the enjoyment of life that would attend the six months period, even if nothing more were allowed. Error having been demonstrated, the question arises as to whether this Court can proceed to recalculate the appellant's damages? There are many reasons why if that were possible it should be attempted. The incident here occurred as long ago as 1986. But, in my opinion, Judge Viney was clearly affected in his approach to the claims of disabilities and loss of overtime by the impression which he formed of the credibility of the appellant. We have not seen the appellant give evidence. We can therefore not proceed to the re-assessment. The only proper course is to send the matter back for retrial. However, as the issue of liability was determined by Judge Viney without challenge in this Court it must be a retrial limited to damages. The orders which I would therefore propose are: 1. Appeal allowed. 2. Set aside the judgment entered by his Honour Judge Viney. In favour of the appellant. 3. In lieu thereof, order that the proceedings be returned to the District Court for retrial on the issue of damages. 4. Confirm the costs order of the trial. 5. Order that the respondent pay the appellant's costs of the appeal but, if otherwise qualified, under The Suitors, Fund Act 1951. Priestley JA I agree there should be a new trial in this case. The trial judge in his reasons expressed a number of conclusions of fact adverse to the appellant and did so on grounds and in the light of evidence in such a way that no criticism can be levelled at his overall conclusion that the plaintiff was exaggerating the extent of his damages at the trial. In many cases such findings inevitably lead to a judgment against which appeal cannot successfully be brought. There is one aspect of his Honour's judgment, however, which appears to me to show mistakes as to one part of the plaintiff's case. And as a result I can see no other way of dealing with those mistakes than by the ordering of a new trial. Because of his opinion concerning the plaintiffs exaggeration, the trial judge's assessment of damages was a low one. He gave a figure of $12,000 for the totality of pain and suffering, past economic loss and the prospect of any continued disability. The aspect of his reasons which appears to me to reveal mistakes is the part in which he dealt with the plaintiff's claim for economic loss for the six months for which he was off work following the accident. There is no doubt that he was off work for that period. A figure exceeding $8,000 appears to be the gross sum he would have earns had he been employed by the employer for whom he was working before the accident, and for whom he worked after he returned to work, being paid. I agree with what the learned President has said. If the $12,000 awarded by his Honour was intended to encompass that six month period and if, on the materials before him, the trial judge should have concluded that the plaintiff was entitled at least to that amount of economic loss, namely, the figure of $8,000 odd he would have earned but for the injury then the $12,000 figure is unsustainable. At first I was not clear that the judge had disallowed all or part of that figure claimed for the six months following the accident. However, on trying to follow through the reasoning expressed in his published reasons it is, I think, quite clear that he did deliberately refuse to allow the full claim for that six month period. 8 UNREPORTED JUDGMENTS His reasons appear in the following passage in his judgment. Here I refer to what would be set out in the judgment as printed but which I will not read. "At the outset I was puzzled that for what seemed to be a relatively minor injury he went straight off work for six months. There is nothing in the reports of his doctors to explain why such a continuous absence was necessary nor why no medical intervention occurred to get him back to health. It was March 1987, eleven months after the accident before Dr Bannister did the exploratory surgery and nothing much seems to have eventuated from that. There was no explanation given by the plaintiff for his long absence from work other than that his knee was sore and only gradually improving. Then he went back to work and it is quite clear he was going the same job as before the accident and he has continued to do it. It is clearly not light duties as was suggested and it is equally clear that he has coped with the job fairly satisfactorily." This seems to me to be the passage which gives the trial judge's reasons for refusing to allow the full six months loss of wages to the plaintiff. The last two sentences in the passage in the light of all the evidence, seem to me, to be an impermissible over-simplification of the matter in a way adverse to the plaintiff. However, I will not go into the detail of that because two clearer errors appear in the preceding parts of the passage I have referred to. One clear error is his Honour's statement that there was no explanation given by the plaintiff for his long absence from work other than that "his knee was sore and only generally improving." The learned President has already referred to the passage which shows that his Honour must have overlooked part of the evidence in saying that because the worker had given as a reason for not returning to work after the accident, in examination in chief, that he couldn't work for six months for two reasons, knee and back and here I quote: "knee and back because of those areas I was unable to work". It may be that the judge overlooked this evidence because it was not elaborated. It was not elaborated because no questions were directed to the plaintiff concerning that statement. The attack on the substance of that claim by the plaintiff was not raised in cross-examination but in reliance upon medical evidence tendered in the defendant's case by way of medical reports. The other error in the passage I have referred to is that there was nothing in the reports of the plaintiff's doctors to explain why such a continuous absence was necessary nor why no medical intervention occurred to get him back to health. The judge referred to March 1987 as if it were the first time there had been any treatment of the plaintiff by Dr Bannister after the accident of 27 April 1986. Here, again, was a significant error in regard to this part of the case. There had been traction in July 1986 to which the President referred in his reasons, for which the plaintiff was in hospital for some days. And further there was evidence from a Dr Roney by way of medical report. The report being dated 28 August 1986 in which that doctor reported that having seen the plaintiff the previous day he had pain and swelling in his left knee. Walking was painful. He could not stand for long periods. He was unable to fully bend his knee or kneel down. These matters that I have described as errors are understandable enough in the circumstances in which this trial seems to have been conducted. However, they seem to me to show a misunderstanding of the evidence on which he was required to adjudicate by the trial judge. It would have been open for him, had WRPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAD he taken into account the correct evidence regarding the matters I have singled out, to arrive at much the same conclusion that he did arrive at. On the other hand, since he was not approaching the matter by reference to a correct understanding of significant evidence which was being put before him on the plaintiff's behalf, it seems to me the correct conclusion for this Court is that he arrived at what may or may not have been the right result on an incorrect evidentiary basis. There seems to me to be no solution for this situation other than a new trial. I agree with the orders proposed by the President. Clarke JA I also agree with the orders proposed, generally for the reasons given by Mr Justice Kirby and by Mr Justice Priestley. Kirby P: The orders of the Court are accordingly are as I have provided. 1. Appeal allowed; 2. Set aside the judgment entered by his Honour Judge Viney in favour of the appellant; 3. In lieu thereof, order that the proceedings be returned to the District Court for retrial on the issue of damages; 4. Confirm the costs order of the trial; and 5. Order that the respondent pay the appellant's costs in the appeal but, if otherwise so qualified, have a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: A J Lidden Solicitor for the Appellant: L J Sharpe & Co Counsel for the Respondent: H J Mater Solicitor for the Respondent: GIO of New South Wales