BLUETT v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and SHELLER JJA 9 June 1995, 9 June 1995 [1995] NSWCA 50 MOTOR VEHICLE ACCIDENT — QUANTUM — NO QUESTION OF PRINCIPLE Motor vehicle accident — quantum — no question of principle — no grounds for overturning the trial judge's awards. ORDER Appeal dismissed with costs. Handley JA This is an appeal by a plaintiff from an assessment of damages by McLachlan DCJ in a reserved judgment delivered on 26 May 1994. The plaintiff, while driving a motor cycle on 1 May 1987 was injured in a collision with a motor vehicle driven by a person insured by the respondent. Liability was compromised at the trial on the basis of an apportionment of twenty per cent responsibility against the plaintiff for his contributory negligence. The trial judge awarded the plaintiff $15,000 for general damages and $10,000 for economic loss, but the total of $25,000 was reduced because of the plaintiff's contributory negligence, resulting in judgment for $20,000. The trial judge made findings adverse to the plaintiffs credit in a number of significant respects and Mr Boyd, who has appeared in this Court for the plaintiff but who did not appear at the trial, understandably but inevitably, accepted that he was not in a position to challenge those credit findings. The trial judge said that he couldn't accept evidence from the plaintiff as to his injuries, disabilities and his losses unless there was some appropriate corroboration. Mr Boyd has endeavoured to find in the materials before the Court, particularly the medical reports, matters which corroborate the plaintiff's complaints of pain and disability resulting from the accident. Unfortunately for the plaintiff this was not an easy task. The initial challenge to the judge's award was directed to the amount allowed for general damages. Here Mr Boyd relied principally upon the problems that the plaintiff said he had with his ankles, particularly his left ankle, following this injury. The Court was taken to a number of medical reports from doctors qualified on behalf of the plaintiff in support of this submission. Unfortunately, the Court has the common problem that no doctor gave oral evidence before the trial judge and the credit findings necessarily devalue any history contained in the medical reports and any complaints and symptoms except those of a wholly objective nature. The Court was taken to reports by Dr Seaton of 9 August 1990, 30 November 1990 and 3 June 1993. In the report of 9 August 1990 Dr Seaton recorded complaints by the plaintiff of pain and instability in his left ankle and the doctor diagnosed chronic inversion sprains in both ankles which he thought were related to the motor vehicle accident. His later reports are consistent with this first report. On 30 November 2 UNREPORTED JUDGMENTS 1990 Dr Seaton reported seeing stress films of the plaintiff's ankles which showed that they were unstable and that advanced post traumatic osteo-arthritis was present in the left ankle. In his report of 3 June 1993 the doctor suggested surgical intervention for the left ankle, which he described as the plaintiff's major problem. The views of Dr Seaton are, in general, supported by Dr Middleton who saw the plaintiff in June 1988, August 1991 and October 1993. Unfortunately for the plaintiff, the specialist he first consulted after the accident, Dr Alam, whom he saw on 26 October 1987 and who took a full history recorded no complaint of pain or disability in either ankle. Following the accident the plaintiff was taken by ambulance to the Nepean Hospital at Penrith and after some treatment was discharged later on the same day. The discharge summary records no problems in relation to the left ankle. There is a diagnosis of fractures to the right tibia and fibula. There were complaints of pain in the right ankle and the left leg. On examination a graze was observed to the dorsum of the right foot with swelling. The problems with the left leg involved grazing and tenderness on the lateral aspect and swelling below the knee joint. X-rays were taken of the right leg. Four days after the accident the plaintiff consulted his local doctor who reported that the plaintiff then had a plaster of paris on his left leg which seems totally inconsistent with the discharge summary from the hospital. The doctor also reported a swollen left ankle, a tender left leg and scars on his left leg. There was also confusion in the hospital reports of 12 May 1988 and 20 July 1988 relating to the location of the plaintiff's injuries on either the left or the right leg, but neither report refers to any problems with the left ankle or indeed with the right ankle, though it is noted that there was swelling in the right foot. The hospital discharge summary noted that following the application of a crepe bandage to one of the plaintiff's legs, but to which is not clear, he was able to weight bear and was discharged in that condition. The problems for the plaintiff are compounded by evidence given in cross-examination in which it was suggested to him that he had an injury to his left ankle while working for Uniwire in April 1988. The cross-examination, on its most favourable view for the plaintiff, was not conclusive but a number of admissions were made which, given the findings on credit, would certainly support the judge's doubts as to the causal nexus between the plaintiff's continuing problems in his left ankle and this motor vehicle accident. The doctors who qualified for the defendant, in particular Dr Burniston and Dr Millar, thought there were no particular disabilities or weaknesses in the plaintiff's ankles and Dr Miller recommended strongly against surgery. His Honour's findings on the medical issues were not particularly favourable to the plaintiff. He noted Dr Burniston's opinion that on x-ray examination in December 1991 there were no abnormalities of significance in the left ankle joint. His Honour found that the plaintiff did have problems with his left ankle for at least a year after the accident but said that he was not satisfied, on the balance of probabilities, that the symptoms were as severe as the plaintiff claimed and he also said that he had doubts as to causation. It is impossible for this Court to interfere with these findings. The plaintiff made a number of other complaints of injury as a result of this accident. Dr Alam, in his report of 26 October, listed complaints of pain in the plaintiff's back, left forearm, left outer leg, complaints of headaches, problems with his eyes, concentration and memory. None of these complaints, apart from URWETT v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Handle? JA) the problem with the left outer leg, are supported by the hospital discharge summary or the report of the plaintiffs general practitioner, based on an examination within four days of the accident. Given the judge's findings and in particular his credit findings, this court cannot hold that the plaintiff discharged the civil onus of establishing that these other complaints were attributable to this particular accident. I would add that there is evidence that the plaintiff suffered a broken cheek bone in a fight in a hotel after this accident and was again injured in another fight in a hotel and there is, of course, the evidence, such as it is, in cross-examination about his ankle injury at work in April 1988. Given these findings, in my opinion this Court cannot or at least should not, disturb his Honour's award of general damages. The next challenge related to his Honour's aware of $10,000 for past economic loss. The judge accepted that the plaintiff may have had some difficulties in finding a job for a lengthy period but he was unable to accurately assess that loss. The plaintiff had not been continuously employed prior to the accident and in the financial year ending 30 June 1987, had been out of work for approximately six months before the accident. The only objective evidence produced by the plaintiff in support of his claim for economic loss were copies of his 1987 and 1988 tax returns. There was no objective or documentary evidence of the plaintiff's earnings for later financial years. His Honour gave judgment on 26 May 1994 shortly before the end of the 1994 financial year but there was no documentary evidence relating to the plaintiff's earnings in that year. The plaintiff's 1987 tax return showed gross income of $11,131 and his 1988 return gross income of $10,362. That tax return annexed group certificates which showed that the plaintiff worked for three weeks during November 1987 with Muras Steel Fabrications. He said in evidence that he ceased working for that company because he wasn't able to handle the movement of steel drums. He later secured a job with Uniwire Pty Ltd, starting on 25 February 1988 and worked continuously for that company for eighteen weeks until the end of the financial year. In the absence of any evidence of the plaintiffs earnings after 30 June 1988 and given the possible intervention of an accident at work in April 1988 and the findings of Dr Alam in October 1987, it seems the better view is that the plaintiff's claim for past economic loss was for a closed period ending on 26 February 1988 with an allowance for the three weeks in which he was at work during November. On this view of the facts, the appellant is not entitled to any greater award than that made by the trial judge. The final point taken in support of the appeal is that his Honour didn't allow any interest on the plaintiffs past economic loss. Prima facie, the plaintiff had an entitlement to such interest but failed to plead it in the statement of claim or in the Pt12 particulars. His Honour gave no reasons for failing to award interest but it is apparent that no such claim was made at the trial. This is supported by the fact that the notice of appeal, filed on 21 November 1994, presumably following an earlier notice of holding appeal filed within twenty eight days of his Honour's judgment, does not include his Honour's failure to award interest on past economic loss as a ground of appeal. His Honour may have awarded interest on past economic loss had he been asked to do so when he delivered his reserved judgment but it is equally possible that his Honour's award of $10,000 was intended to include an appropriate figure 4 UNREPORTED JUDGMENTS for interest. The plaintiff was out of work for ten months from May 1987 to February 1988, apart from the three weeks at Muras Steel Fabrications and on that basis, having regard fo his tax returns for 1987 and 1988, the award for $10,000 was not ungenerous. 5 Forall these reasons I am of the view that the appeal should be dismissed with costs. Sheller JA I agree. Handley JA The order of the Court will be, the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: M BOYD 15 Instructed by: MAXWELL BERGHOUSE AND IVES Counsel for the Respondent: C LAUGHTON Instructed by: STEPHEN MODDER