DJUKIC vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 28 February and | March 1994, 1 March 1994 [1994] NSWCA 85 DAMAGES — general damages, trial award below the range applicable in the exercise of an appropriate discretion; award can be set aside and replaced by appeal court Clarke JA I will ask Sheller JA to give the first judgment. Sheller JA The appellant, Miodrag Djukic, was involved in two motor vehicle accidents, one on 8 July 1985 and the other on 25 August 1986, in respect of which he brought two separate proceedings against the Government Insurance Office, which came on for hearing before his Honour Judge McCredie. In the first, liability was admitted by the respondent; in the second, Judge McCredie held that the appellant was entitled to succeed on liability. The assessment of damages in both proceedings was, by consent, heard together by his Honour, who gave judgment on 1 May 1992. In the proceedings in respect of the earlier accident, his Honour gave the appellant a verdict in an amount of $10,310, of which $10,000 was made up of general damages. Of the second accident in August 1986 his Honour said that the accident was a major one so far as the appellant was concerned. He required emergency surgery to be carried out at Gosford Hospital before being transferred to Liverpool Hospital for a further substantial period. His Honour described the injuries of the appellant at the time that he was admitted to Gosford District Hospital. The injuries included fractured left ribs posteriorly numbered 3 to 9; ruptured spleen; ruptured left hemidiaphragm; fractured pelvis, involving the right superior and inferior pubic rami and the left superior pubic ramus; and minor lacerations to the left shoulder and left knee. The appellant underwent a number of operations at Gosford on 25 August 1986. He required transfusion and was ventilated for 48 hours post-operatively. He was admitted to Liverpool Hospital on 2 September 1986. At that time he was still complaining of chest pain on the left hand side, particularly during inspiration, generalised abdominal pain, and he was afebrile. His Honour said that there was little in the way of contested medical issues. He described what he called the appellant's major ongoing problems as being residual scarring and, more importantly, great disruption to his urinogenital system, ongoing soft tissue problems. There was a likelihood of arthritis in both hips. Over thirty medical reports were tendered. The appellant's own evidence on the matter was supported, so far as sexual problems were concerned, by the evidence of a witness, Nada Glavan. The appellant had a major claim for loss of earnings and loss of earning capacity. 2 UNREPORTED JUDGMENTS The appellant was born in Serbia on 11 January 1948 and came to Australia in 1971. He was 38 years old at the date of the car accident in 1986 and 44 at the date of the hearing before Judge McCredie. His Honour said that his work record prior to 1980 is not known, and I will come back to say something more about that in due course. On 1 August 1980 the appellant had a major motor vehicle accident in the course of his employment and suffered a severe injury to his cervical spine, including a fracture dislocation of the cervical vertebrae C1/2. The appellant had virtually not worked since that accident. The only evidence of any work from 1980 till August 1986 was from two friends that he had worked for two or three days immediately prior to the August 1986 accident. He was being paid at the rate of $50 a day. On the basis of that rate of pay he founded his claim for economic loss at an amount of $250 gross or $200 net a week. He claimed on virtually a total and permanent incapacity basis for the rest of his life. Following the 1980 accident the appellant received workers' compensation. He brought proceedings in the Compensation Court and on 12 April 1985 obtained an award on the basis of a finding of notional total incapacity. At the time of the trial he was receiving approximately $200 a week on a continuing basis under that award. Of the appellant's claim for economic loss, his Honour said that even accepting that he had done three days of comparatively light duty work, that being the only work in a six-year period, that did not provide any reliable guide. The whole situation was masked by very substantial pre-existing problems. The fact he had not worked at all for six years, in his Honour's view, made it extremely unlikely that he would have got back to anything like full time work. His Honour had great reservations about the credibility of the appellant and his witnesses on various aspects. However, his Honour accepted that the appellant was totally disabled for any work for a period following the accident, a period of approximately twelve months. He did not accept he would have been in anything like full time work during that period. After that period the appellant had been more or less put back into the same type of working situation as he was in before the motor vehicle accident in August 1986. There was some continuing interference but that was only to be measured in terms of a fairly small cushion to reflect that situation. Out-of-pocket expenses were not in issue. As to loss of earnings, his Honour rejected any precise arithmetical basis of assessment. However, he used as a guide a $200 a week measure and awarded for the 12-month period a figure of $10,000 So far as any further claims for loss of earning capacity, he awarded a further sum of $10,000. His Honour said that general damages had to be a substantial figure. There was the massive early surgery and treatment. The appellant was only 38 years old at the date of the accident and still only 44 at the date of the hearing. As to his ongoing problems his Honour accepted that the appellant had a major disruption to his urinary and genital functions and ongoing soft tissue problems, with the likelihood of arthritis developing. A good many of these problems were of a permanent nature. His Honour referred in detail to the matters that he took into account in fixing the amount of general damages. In particular he referred to ongoing problems with urination, which had required periodic urethral dilatations under general anaesthetic at intervals between a few weeks and three months. One of the WRWKIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB specialists had said there was at least a possibility of further ongoing dilatations, hopefully at slightly less frequent intervals. The appellant had these continuing problems and would on the probabilities have continuing problems in that area for the rest of his life. On the question of sexual function he said, amongst other things, that the appellant had major interference with his sexual function, which at least caused him considerable embarrassment, humiliation and loss of satisfaction. The appellant felt as though his whole manhood was at least greatly impaired. His Honour concluded that those matters, coupled with the massive major injuries, led to a very significant figure. The amount his Honour assessed was $75,000, which produced a total verdict of $111,979. The loss of earning capacity was dealt with under the first three heads in the amended grounds of appeal which can be taken together. Although his Honour said that prior to 1980 the appellant's work record was not known, there was evidence that the appellant had since 1972, a year after he arrived in Australia, had a tradesman's certificate, which apparently enabled him to work as a fitter, work which he said could be heavy work. In 1980, at the time of the accident in that year, he was employed by Blackwood Hodge (Australia). There was some evidence in a report of one of the doctors that up to that time he had been in employment for a continuous period of about nine years before returning to Yugoslavia in 1979. On his return to Australia he went to work for Blackwood Hodge. The appellant did not dispute that after August 1980 he did not work, except for the period of two to three days. However, it is said that in fact during that period he made attempts to get work, starting, it seems, in about 1984 or 1985. His Honour's view that it was extremely unlikely that the appellant would, even if there had been no accident in August 1986, have gone back to full time work is challenged. I do not think that his Honour in saying that was gainsaying that the appellant had a degree of earning capacity. There was medical evidence, to which we were referred, on this and, in particular, I refer to the report of Dr Garrick in October 1984 that the appellant was fit for light duties and that his fitness would be improved by enrolment in a rehabilitation centre. The appellant was unlikely, however, to be able to resume heavy manual work or heavy lifting duties in the foreseeable future. The point, however, which his Honour was making was that the evidence of six years without work suggested that the appellant was either unable or unwilling to exploit such capacity as he had. In my opinion, this conclusion was one open to his Honour on the evidence, particularly when the history, for example, given to Dr Giblin in February 1987 is examined. Dr Giblin's view at that time was that the inability to work prior to 1986 was one that the appellant attributed to injury rather than unsuccessful attempts to obtain work. The appellant submitted that after the August 1986 accident his disability was exacerbated and hence there was a further reduction in his work capacity. In this regard counsel emphasised, in addition to the various matters mentioned in the judgment and to which I have referred, a shoulder disability, described by Dr Rasanayakam and a knee injury described by Dr Bannister in a report in October 1990. Reference was also made to the evidence in a report of Dr Samad of 18 May 1987 of a state of depressive anxiety. All these matters were said to have 4 UNREPORTED JUDGMENTS brought about an increase in the degree of loss of earning capacity. The appellant gave evidence, which was unchallenged, that he would have liked to have been working. As against this, the appellant also gave evidence that by Christmas 1987 he was seeking work. Dr Barry in a report which was tendered said that the appellant by that stage at least was fit for light duties. His Honour accepted that the appellant was totally disabled for a 12-month period after the accident; that is, up to August 1987. After that, his Honour said that his working situation was more or less as it had been before August 1986. He was fit for light duties but either unable or unwilling to obtain such work. At most, there seems to me a gap between August 1987 and December 1987 during which it could be said that his situation in terms of earning capacity was worse than it had been before the August 1986 accident. However, his Honour's award of $10,000 was made for what he described as an approximate period of 12 months and, in my view, there is evidence upon which it was open to his Honour to conclude, as he did, that his work situation, certainly after December 1987, was no different to his work situation prior to the August 1986 accident. The way in which his Honour approached the award for total disability covered any apparent gap between August 1987 and December 1987. In my opinion, no ground has been shown for interfering with those components of damages relating to economic loss which are challenged in the first three grounds of the amended notice of appeal and, accordingly, those grounds of appeal should be rejected. The fourth ground of appeal deals with general damages. His Honour accepted that the general damages should be a substantial figure. At the time of the accident the appellant was 38 years old. He was subjected to major massive early surgery and he had major ongoing problems with a likelihood of arthritis developing in the hips. In particular, he had the ongoing problems with urination and an ongoing problem concerning his sexual function and the embarrassment which that produced. In addition, there was his depressive state. I have given careful consideration to the matters that are set out in his Honour's judgment and to the submissions that have been put to us. In my opinion, the award of $75,000 for general damages is below the range applicable in the exercise of an appropriate discretion in the awarding of damages to the circumstances of the appellant. Accordingly it is open to this Court to set it aside and reassess the general damages. Again taking account of the matters to which I have referred, I have come to the view that the appropriate amount of general damages that should be awarded is $105,000. The final matter raised in the appeal relates to his Honour's refusal to award interest on the $10,000 component for economic loss for the twelve months up to August 1987. No reason is demonstrated for interest not being awarded on this sum. It is not disputed that his Honour erred in not allowing such interest for a period from August 1987 up to the date of his Honour's judgment. I would propose the following orders: 1. That the appeal be allowed. 2. That his Honour's verdict be set aside. 3. That there should be substituted a verdict made up of the following amounts: for economic loss, $20,000; interest on the component of $10,000 in an amount of $7600; out-of-pocket expenses, $16,979; and general damages, $105,000, giving a total of $149,579. 4. The appellant's costs of the appeal should be paid by the respondent. WRWKIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JAB CLARKE JA: I agree. Handley JA I also agree. Clarke JA: The orders of the Court will be as Sheller JA has indicated. To make it clear, the judgment takes effect from the date of Judge McCredie's original judgment. 1. That the appeal be allowed. 2. That his Honour's verdict be set aside. 3. That there should be substituted a verdict made up of the following amounts: for economic loss, $20,000; interest on the component of $10,000 in an amount of $7600; out-of-pocket expenses, $16,979; and general damages, $105,000, giving a total of $149,579. 4. The appellant's costs of the appeal should be paid by the respondent. Counsel for the Appellant: D T Kennedy Solicitor for the Appellant: William B Beilby & Company Counsel for the Respondent: G F Butler Solicitor for the Respondent: R J Walters