SERHAN v LANG AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 3 March 1994, 3 March 1994 [1994] NSWCA 283 Neck injury — negligence — direction to jury — credibility — quantum of damages. Clarke JA The appellant was admitted to Bankstown Hospital for confinement with her second child. During the birth there was an attempt, and it is questionable whether it was successful or unsuccessful, to administer an epidural injection. During the course of this procedure the appellant's head was pushed forward with some force, as a consequence of which she complained she suffered from a neck injury. She brought proceedings against the Lang Area Health Service, the respondent, which represented the hospital asserting that there had been negligence in the manner in which her head had been pushed forward. She complained that following the incident she suffered from significant neck pains and disability for a closed period of four years. I should mention that the reason why the period was closed was that there was another accident at the end of that period. The hospital denied that it had been negligent and contended that at the very least the appellant was exaggerating her claim. The jury who were directed by Judge Herron, a very experienced common law judge, accepted the appellant's case on liability and found a verdict in her favour. They clearly did not accept her case on damages for they awarded her the sum of $5165.68. That verdict included the agreed out of pocket expenses of $2165.68. The appellant has asserted in this Court that the general damages award, which can easily be identified, was so unreasonable that no sensible jury properly directed could have reached that conclusion. In his submissions in support of the appeal, Mr Williams has pointed out that many of the medical expenses must have been incurred during the latter part of the four year period and that there is an inconsistency between the jury award which, presumably, compensated the appellant for a relatively short period of disability and the allowance of medical expenses. This particular point has, in my opinion, no substance at all. The respondent agreed at the trial that if there was a verdict for the appellant then it would be proper for the jury to include in that verdict the sum of the agreed out of pocket expenses. More importantly his Honour directed the jury that if they found a verdict for her they would have to award the appellant the agreed sum plus whatever amount they thought appropriate for general damages. There was no break-up of the agreed out of pocket expenses and in view of his Honour's direction to the jury they had no option but, once they found a verdict for the appellant, to include that sum. I do not find in the inclusion within the ultimate verdict of a sum which the jury was directed to include within it any inconsistency relating to the award for general damages. 2 UNREPORTED JUDGMENTS Before coming to the next point it, perhaps, is appropriate to say that the appellant suffered fairly immediate symptoms for a relatively short period after the incident which led to the action. She then did not seek treatment in relation to her neck for a period of at least one year. She was asked to explain this fact and she gave an explanation which was not unreasonable and which it was open to the jury to accept. That was that she was taking Panadol, was wearing a collar and was getting relief from the use of hot water. According to her case her neck did not get better and she then saw a Dr Maniam and her problems continued for the period I have mentioned. If her case had been accepted it cannot be doubted the amount awarded would be beyond the bounds of a reasonable verdict but her case was strongly contested. Indeed, it was said that she was feigning or malingering. The respondent's case to that effect was supported by Dr Marsden who gave the following answer without any objection: "Tt is possible that in the inevitable stresses of that situation there may have been some ligamentous stress to the cervical spine but such an effect would be of a temporary and transient nature and could be expected to resolve completely after a brief period of conservative management, say, a few days or a few weeks at most and I believe any such effects did in fact resolve completely in that time period and I confirmed the opinion that her description of the alleged continuing and progressive complaints relating to the episode of 13 September 1982 was vague, non specific, randomised, incongruous, diffused and totally lacking in conviction." I leave out a further portion of the answer which is consistent with what I have already quoted and refer only to the last words which were: "T formed the opinion that there was positive clinical evidence of gross feigning." The jury was thus required to consider a case in which on the one hand there was a claim for significant disability extending over a four year period and on the other hand a case in which there may have been a shorter period of pain and suffering and thereafter positive feigning. Mr Williams, who has done the best he could with a difficult case, has pointed out that some of the appellant's evidence as to her problems was not directly challenged in cross examination and that it was not put to her that she was a malingerer. Those points are not without substance but one returns, as one must, to the case which was left to the jury by the trial judge and that was whether they were satisfied on the probabilities that the appellant had made out her case in the light of the evidence which they accepted. Having regard to the very damning evidence of Dr Marsden, it is clear that the jury did not accept the case made by the appellant. Furthermore, in the light of that evidence it was open to the jury to reach the conclusion that the effects of the incident, which although occurring during a period of great stress to the appellant was not one of extreme violence, had lasted but for a few weeks or months at most. The final submission put forward by Mr Williams was that, even accepting a short period of disability given the remarkable stresses of the situation in which the injury had been suffered, an award of $3000 was derisory and beyond the bounds of a reasonable award. I am simply unable to agree with that submission. It seems to me that if the jury took the view that there had been some neck disability extending over a few weeks, an award of $3000 would have been appropriate and not unreasonable at URJ SERHAN v LANG AREA HEALTH SERVICE (Sheller JA) 3 all. In the circumstances, approaching the case as the court is bound to, from the point of view most favourable to the respondent on the evidence, I am bound to conclude that the appellant has not made good her challenge. In my opinion, the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I agree. Appeal dismissed with costs. Counsel for the Appellant: MB Williams Instructed by: Gibsons Counsel for the Respondent: GR Petty Instructed by: Audrey Lee, GIO Law Department