IBRAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P and POWELL JA 14 March 1995, 28 March 1995 [1995] NSWCA 202 DAMAGES — inadequacy — out-of-pockets agreed at $1485 and $2255 — judgments entered for $2500 each — references by judge to alleged medical over-servicing not put at trial references to dependence on social security not relevant to claim — held: Appeals upheld retrials ordered. DAMAGES — motor vehicle claims — husband and wife injured in motor vehicle accident — sue for damages for personal injuries — liability found in their favour — trial judge (Mahoney DCJ) enters small judgments of $2,500 in each case — agreed out-of-pockets are, in case of husband $1,485 and in case of wife $2,255.68 — plaintiffs' appeal against inadequacy of judgments — held: (Powell JA; Kirby P concurring): Appeals allowed. Retrial ordered — references in judge's reasoning to alleged excessive over-servicing by medical practitioners not put to them or raised at trial and references to male plaintiff's dependence on social security which was irrelevant to his claim as advanced at the trial criticised as irrelevant to the assessment of damages. Kirby P I agree with Powell JA. Powell JA In each of these matters, the Appellant, who was the Plaintiff in the proceedings at first instance, appealed against the Judgment delivered, and the verdict entered, in favour of the Appellant on 1 May 1992 by Mahoney DCJ. Although the grounds of appeal taken by each Appellant have varied from time to time, the substantial ground of appeal in each case was that the award of damages made in favour of the Appellant by Mahoney DCJ was manifestly inadequate. Although, in the Second Amended Notice of Appeal filed, by leave, on the hearing of these matters, each Appellant, in addition to seeking an order that the Judgment of Mahoney DCJ be set aside, sought an order that this Court reassess damages, it was accepted, during the course of argument on the hearing of these matters, that, as the award of damages made, in each case, by Mahoney DCJ was significantly affected by the view which His Honour took as to the credibility of each of the Appellants, the appropriate order to be made, in the event of the appeals, or either of them, being allowed, was that there by a new trial of the action or the relevant action such new trial being limited as to damages. Before I turn to record the circumstances which led to the commencement of each action, it is convenient here to record a little detail as to each of the Appellants. Each of the Appellants, Mr and Mrs Ibrahim, is a native of Lebanon, Mr Ibrahim having been born in February 1942 and Mrs Ibrahim having been born in July 1946. Mr and Mrs Ibrahim appear to have been married in Lebanon at some time before immigrating to this country in about 1970. Mr and Mrs Ibrahim appear to have had some 6 children of their marriage, of whom 5 appear to have 2 UNREPORTED JUDGMENTS been born - but whether in Lebanon prior to their immigrating to this country or after they had immigrating to this country is not clear - prior to the occurrence of the accident which gave rise to these proceedings, while the sixth appears to have been born in late 1987,or early 1988. that is, some time after the occurrence of that accident. Although, as will appear from what I have earlier written, each of the Appellants had, prior to the actions coming on for hearing before Mahoney DCJ, resided in this country for something in excess of 20 years, and although each appears as if he, or she must, have acquired sufficient command of the English language to enable him or her to deal with the ordinary routine affairs of man, the fact that, on the hearing of the action, each gave his, or her, evidence through an interpreter would tend to indicate that neither had attained a command of the English language which rose above that rudimentary level. That fact, coupled with the fact that neither of the Appellants appears to have attained, or acquired, any significant skills which would fit him, or her, for other than labouring positions, or positions as a process worker, in industry would suggest that, even when the Appellants were, or one of them, was, in employment, the family income never rose above the level of a modest competence. Such material as is contained in the evidence would suggest that the only positions which were held by Mr Ibrahim after he arrived in this country were, in fact, labouring positions. Whether or not prior to November 1986 Mr Ibrahim had been in regular employment is not entirely clear. However, in about November 1986, Mr Ibrahim was retrenched from his then position with "Sunbeam", and thereafter, and up to and including the date of the hearing before Mahoney DCJ, Mr Ibrahim - even if, which may be doubted, he had sought employment - had not secured another position, and his income was dependent entirely on payments made by the Department of Social Services. The reason for the doubt as to Mr Ibrahim's employment history is in part due to the fact that the evidence reveals that, in June 1984, he was involved in what has been described variously as "an industrial accident" and "a motor vehicle accident", his claim for damages arising out of which accident is said subsequently to have been compromised in a sum of about $30,000.00. Before passing from that accident, it is, perhaps, as well, to record that it appears that following that accident, Mr Ibrahim complained of pain in his left shoulder which pain originated in the area of the cervical spine; that he, complained of constant pain in his lumbar spine with radiation pain down his right thigh; and that he complained of pain in the thoracic region on coughing. X-rays which were taken at the time appear to have revealed no abnormality in the left shoulder, but revealed evidence of degenerative disease in the area of the lumbar spine. However, to return to the background insofar as it relates to Mrs Ibrahim. So far as one can judge from the evidence, Mrs Ibrahim did not engage in any form of employment when in Lebanon nor did she engage in any form of employment after coming to this country and prior to December 1975. Thereafter, and between | December 1975 and 2 February 1987, Mrs Ibrahim was employed by the "Streets Ice Cream Division" of Unilever Australia Ltd, which appears to have had premises at Turrella, not far from the home in which, both at the time of the accident the subject of the proceedings before Mahoney DCJ and on the hearing of the actions, Mr and Mrs Ibrahim lived with their family. In that period of a little over 11 years, Mrs Ibrahim was employed on 7 occasions, at times for as little as 2 months and, in 1978 and 1979 for a period UWBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAB of a little over 13 months continuously, the last such period being from 17 September 1986 until 2 February 1987. Although Mrs Ibrahim's wages during this time varied, because of overtime and other additional payments, her normal gross weekly earnings would seem to have been of the order of $320.00, that sum being made up of ordinary pay of about $280.00 and a shift allowance of about $44.00, and her nett weekly earnings after tax being of the order of $260.00. On occasions, however, Mrs Ibrahim's gross weekly pay approached, or even exceeded, $500.00, and her nett earnings after tax on such occasions were in the range of $350.00 to $400.00. The accident which gave rise to the proceedings appears to have occurred in the late evening of New Years Day 1987. At the time, Mr Ibrahim, accompanied by Mrs Ibrahim, who was seated in the passenger seat, was driving his motor car North in Turella Street, Turella - not far from Turella Station - and was about to enter the intersection of Turella Street and Reede Street, his intention being to make a right hand turn into Reede Street, which led to Victoria Street, in which latter street so it would seem, the family home was located. As Mr Ibrahim's vehicle entered the intersection, a taxi, Registered No T916, of which taxi, the Defendant in each of these actions was the authorised insurer, and which taxi was proceeding in a Westerly direction in Reede Street, entered the intersection from the East, and in disobedience to a "Give-Way" sign erected at the intersection, and collided with the front off-side of Mr Ibrahim's vehicle. At the time of impact, so Mr Ibrahim says, his speed was only about 10 kph. As the result of the collision, so Mr Ibrahim says, his vehicle was forced about 1/2 metre to the West. In the oral evidence which he was to give on the hearing, Mr Ibrahim indicated that, although, at the time of the collision he was wearing a seat belt - which appears to have been a lap-sash seat-belt - his body was projected forward so that his chest, in the region of the sternum, hit the steering wheel, and his head jerked sharply to the left, the latter movement causing an immediate,and sharp, pain. It is difficult to determine what it was that Mrs Ibrahim claimed occurred to her as the result of the collision, for, although, at various times prior to, and on the occasion of, the hearing before Mahoney DCJ, she claimed to have had no recollection of what had occurred, save that she was rendered dizzy or unconscious, on other occasions she asserted that, although her body had been projected forward in such a manner that she struck her head on the dashboard, she was not rendered unconscious. If more be thought necessary further to obfuscate the already obscure, it is to be noted, on occasion, what could be observed on examination was difficult to reconcile with what was said to have occurred in the collision. Thus, the records of the St. George Hospital, to the Casualty Department of which Mrs Ibrahim was taken by ambulance in the early hours of 2 January 1987, record (inter alia) the following: "Presentation 37 year old female. Front seat passenger in motor vehicle accident Now complaining of pain in neck and thoracic spine No loss of conscious (sic) No other injuries On examination Alert orientated (sic) Skull - no abnormality detected 4 UNREPORTED JUDGMENTS Cervical spine: Tender over C1 and C3 range of movements slightly decreased but good movements all directions. Tender over thoracic vertebrae T10, T12 Chest - normal Abdomen - normal Pelvis - normal X-ray of cervical spine, and thoracic spine Provisional diagnosis: Soft tissue injury to neck and thoracic spine FOR: Panadol Soft collar Local heat Home. RESIDENT MEDICAL OFFICER 2.1.87 X-RAY Report Cervical Spine: No abnormality seen Thoracic Spine: No abnormality seen" Mrs Ibrahim was taken to, and treated, in the Casualty Department of St George Hospital before being discharged to home, Mr Ibrahim does not appear himself to have been taken to hospital unless it was to accompany his wife. It is difficult to ascertain, and even more difficult to state with confidence, what occurred in the period following the accident, those difficulties arising partly because of some of the features of the evidence - both oral and documentary - tendered on the hearing, partly because of inconsistencies - both internal and with the documentary evidence - in the oral evidence tendered at the trial and partly because Mahoney DCJ, clearly enough, formed a very poor view of the credibility of each of Mr and Mrs Ibrahim as witnesses. Some indication of the difficulties to which I have just referred will be revealed by the examples - which are but a few of the many - which I set out below: 1. Mrs Ibrahim would appear to claim that, although she sought to return to her employment on the day following the accident - or the day following that day - she was unable to work for more than an hour or so, and returned home, since which time she has been unable to undertake any form of gainful employment. Although Mrs Ibrahim's work records (AB 116-117) would appear to indicate that Mrs Ibrahim received sick pay in respect of 1 or more days in each of the weeks ended 7 January, and 14 January, 1987, and that she received no pay in respect of either of the weeks ended 21 January, and 28 January, 1987, they appear also to record that she received a week's pay for the week ended 4 February 1987, at the conclusion of which week she also received 2 week's severance pay; 2. although the records of Dr Ghannoum, Mr and Mrs Ibrahim's general medical practitioner, record that he first saw Mr Ibrahim on 12 January 1987, and that he first saw Mrs Ibrahim on 19 January 1987, the fact that the evidence tendered on the hearing includes reports by a radiologist, Dr Hooper, as to the result of X-rays taken by him of Mr Ibrahim's cervical spine, chest and ribs and UWBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAB Mrs Ibrahim's cervical spine and lumbo sacral spine on 6 January 1987, which reports are addressed to Dr Ghannoum, would tend to indicate that Mr and Mrs Ibrahim had attended on Dr Ghannoum by no later than 6 January 1987. Dr Hooper's report as to Mr Ibrahim records: "Chest No abnormality is visible in the left ribs No abnormality is visible in the lungs or heart. Cervical spine No fracture is visible in the cervical spine The disc C5-6 is narrowed and is probably degenerated. The transverse processes of C7 are longer than usual but no true cervical rib is present." while the report relating to Mrs Ibrahim records: "Cervical spine No abnormality is visible in the cervical spine. Lumbo-sacral spine There is a localised deformity of the upper anterior part of the body of L5 consisting of a kink in the anterior surface of the vertebra. This appearance strongly suggests a recent fracture of this vertebra with mild compression." 3. although it is not entirely clear that this was so, the fact that the first reports submitted by Dr Maniam - who appears to be an orthopaedic surgeon - and by Dr Higginbotham - who appears as if he may be a specialist physician - were addressed, not, to Dr Ghannoum, but, to Mr and Mrs Ibrahim's then solicitors, would tend to indicate that by no later than early February 1987, Mr and Mrs Ibrahim had retained their then solicitors who had referred them to Dr Maniam - who saw them both on 9 February 1987 - and Dr Higginbotham who saw them both on 16 February 1987. Dr Maniam appears to have referred Mr and Mrs Ibrahim to the Imaging Centre, Bankstown for CT scans, in the case of Mr Ibrahim of the cervical spine, and in the case of Mrs Ibrahim of the lumbar spine. The report relating to the CT scan of Mr Ibrahim records: "Stacked axial slices were performed through the lower three disc spaces. The C4/S level is essentially clear, with no evidence of disc protrusion. At the C5/6 level there are small marginal osteophytes on the periphery of the vertebral body, resulting in some minor narrowing of the intervertebral foramina, mainly on the left side. There is also a small central disc protrusion at this level, on Image number 9. The C6/7 level is essentially clear with no significant disc herniation. Comment There is evidence of degenerative disc disease at the C5/6 level with disc space narrowing and marginal osteophyte formation. There is some associated posterior disc protrusion and some minor narrowing of the intervertebral foramina. The remaining levels are satisfactory." while the report relating to Mrs Ibrahim records: "Stacked axial slices were performed through the lower 3 disc spaces. The L3/4 level is clear with no evidence of disc protrusion and no significant bony changes. The L4/5 disc space is normal in appearance with no evidence of disc herniation. There is some irregularity osteophyte formation on the anterior aspect of the superior margin of the LS vertebral body. This is probably on a degenerative basis, but I cannot exclude the possibility of trauma if there is an appropriate history. There is a partial vacuum disc phenomenon in the anterior 6 UNREPORTED JUDGMENTS aspect of the adjacent disc, and a minor circumferential bulge on the annulus at this level. However there is no evidence of Posterior disc protrusion. The LS/S1 level is essentially clear with no significant disc herniation. There is also some marginal osteophyte formation on the anterior inferior margin of the LS vertebral body. Comment: There is some irregularity and marginal osteophyte formation on the superior and inferior margins of the LS vertebral body anteriorly. Most likely this is on a degenerative basis although one could not entirely exclude minor compression due to trauma. There is a minor bulge of the disc at L4/5 but no significant disc herniation and the remaining bony structures are normal." Both Dr Maniam and Dr Higginbotham appear at the time to have been of the view that the primary cause of the symptoms of which each of Mr and Mrs Ibrahim complained was musculo-ligamentous injury with the possible addition, in the case of Mrs Ibrahim, of minor bony injury in the lumbar area; 4. notwithstanding what I have just recorded, it would appear that Mr and Mrs Ibrahim continued to complain of recurrent headaches, and pain radiating from the neck, and, in the case of Mrs Ibrahim, pain in the lumbar area as well. As the result of these continuing complaints, Dr Maniam in June 1987 performed a cervical spine manipulation under general anaesthetic upon each of Mr and Mrs Ibrahim; 5. it seems fairly clear that, by this time, Mr and Mrs Ibrahim had instructed their then solicitors to commence proceedings for the recovery of damages for the injuries which they claimed to have sustained in the collision for they appear then to have been referred by their then solicitors for yet further examinations, on this occasion by a Dr Rivett - who is said to be an orthopaedic physician - who examined each of them on 16 July 1987. In his first reports - which were addressed to Mr and Mrs Ibrahim's then solicitors - Dr Rivett recorded as to Mr Ibrahim (inter alia) the following: "Opinion: Mr Ibrahim is suffering from cervical spinal strain and possibly from aggravation of pre-existing spondylosis at C54. There is some suggestion of cervical disc injury, but there are not obvious neurological effects. His headaches are probably myogenic, arising in the sub occipital muscles. The findings the consistent with the accident described. This man is currently unfit for heavy or repetitive jobs and for postural spinal strains. It is too early to offer a firm prognosis, but his symptoms are likely to persist for at least six to twelve months further. " while in the case of Mrs Ibrahim, he recorded (inter alia): "Opinion: This lady is suffering from some cervical spinal strain with resulting myogenic headaches. She also has some lumbar spinal strain. There are no obvious neurological effects in either region." The findings are consistent with the accident described. This lady is unfit for heavy work, bending, repetitive jobs and postural strains of the spine. It is too early to offer a prognosis, but she is likely to continue to have symptoms for a further six to twelve months. " 6. the opinions expressed by Drs Ghannoum, Maniam, Higginbotham and Rivett may be contrasted by those expressed by Dr Bornstein, one of the two doctors who examined each of Mr and Mrs Ibrahim on behalf of the Respondent. UWBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAY In the reports which he provided shortly after the commencement of these proceedings, Dr Bornstein recorded, in relation to Mr Ibrahim (inter alia): "Opinion: This patient complains of discomfort in the cervical spine which he dates from a motor vehicle accident earlier this year and a CT scan is alleged to show degenerative change plus a disc protrusion at the C,5,6 level. It is possible that he could have stirred the area up but it is extremely common that patients would have pain from this level on the basis of degenerative change only. I advise that this is the commonest level to become degenerate in the general population. There is no other significant problem in this patient's neck and I believe his disability to be very much less than he claims on the basis of my clinical examination today." while, in relation to Mrs Ibrahim, he recorded (inter alia): "Opinion (sic) This patient complains of problems in the neck and back dating from a motor vehicle accident on 1.1.87. She was apparently working up until that accident and has not worked since; she was a machine operator at Streets factory. Opinion I can find no objective evidence of disability in this patient. There is no evidence that there has been any damage to the discs in her neck or back. At the most she would have suffered soft tissue injuries only and these could be related to the pregnancy and there is no objective evidence of on-going discomfort related to that motor vehicle accident." (the reference to "the pregnancy" being a reference to the fact that, as will have appeared from what I have earlier recorded, Mrs Ibrahim was, at the time of her examination by Dr Bornstein, "heavily pregnant".) In the report which he was to provide following further examinations of Mr and Mrs Ibrahim, the former in July 1989, and the latter in November 1988, Dr Bornstein recorded, as to Mr Ibrahim, (inter alia): "Opinion This man's complaints are unreasonable in terms of their relationship to a motor vehicle accident. While he may have some discomfort in the neck on the basis of the degenerative changes, it is clear that those degenerative changes were present before the motor vehicle accident and of constitutional origin. I consider that he is now as fit as he was before the motor vehicle accident to indulge in employment. I believe he has been fit in this manner for a considerable period of time and that he should have been employed years ago. I do not see any reason why this man should remain off work at this time in conseQuence of this motor vehicle accident." while, in relation to Mrs Ibrahim, he recorded (inter alia): "T reviewed the various reports forwarded to me the most significant of which is the possibility of a fracture of L,5 vertebrae reported some 5 days after the motor vehicle accident. I must say that on the films that I have seen I was not totally impressed by this and consider that the features could be consistent with age related changes only. Also of significance is the hospital summary which indicates that after the accident the patient was complaining of pain in the neck and not in the lumbar spine. One would have expected pain in the lumbar spine almost immediately in consequence of a fracture and I believe that these two facts together exclude the presence of a fracture at the time of the accident. The patient has had six children 8 UNREPORTED JUDGMENTS and with the accumulated pregnancies it is quite possible that her lower back pain, if at all present, could well be related to after-effects of 6 pregnancies. I feel that this patient, in any event, is only minimally disabled now. She was working originally as a process worker and obviously with a family of this size she would not have the time to cope with employment. I do not believe at this time that her lower back pain is in any way related to the motor vehicle accident; her neck pain, which might have been related to the accident as a soft tissue injury, has since settled down by her own admission. I believe her to have recovered from the effects of her motor vehicle accident." As will be apparent, the views of Dr Bornstein, if accepted, would tend to indicate that any injury which Mr and Mrs Ibrahim may have suffered in the collision was limited to a soft tissue injury of no great extent and not persisting for any significant period of time. These proceedings were commenced on 30 July 1987. The Statement of Claim filed on behalf of Mr Ibrahim alleged (inter alia): "Particulars of injuries 7. The Plaintiff sustained the following injuries (a) Chest injury; (b) Cervical spine; (c) Head; (d) Injury to neck; (e) injury to back; (f) Shock; (g) Anxiety; (h) Functional overlay. 8. By reason of the matters aforesaid the Plaintiff suffered and will continue to suffer loss and damage including economic loss. Particulars of special damage 1. Continuing hospital and medical expenses yet to be ascertained." while that filed on behalf of Mrs Ibrahim contained the following (inter alia): "Particulars of injuries 7 The Plaintiff sustained the following injuries (a) Cervical spine; (b) Lumbar Spine; (c) Chest; (d) Thoracic Spine; (e) Shock; (f) Anxiety; (g) Functional overlay 8. By reason of the matters aforesaid the Plaintiff suffered and will continue to suffer loss and damage including economic loss. Particulars of special damage 1. Continuing hospital and medical expenses yet to be ascertained." In the Particulars under Pt12 R4A which were filed on his behalf on 11 May 1990, Mr Ibrahim claimed out-of-pocket expenses amounting to some $1,965.00. The Particulars also contained the following: "Loss of Income: The Plaintiff was employed by Sunbeam until 28th November 1986 when he was retrenched. The Plaintiff will say that had the accident not taken place then he would have returned to this employment. A claim for loss of wages is made. Particulars (sic) of loss of earning capacity UWBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAD The Plaintiff has presently no capacity for work resulting from the accident. His inability to work arises from physical and mental disability resulting from the accident and it is unlikely that the Plaintiff will be able to work in the near future. Particulars of future economic loss: The Plaintiff will require continuing hospital and medical treatment for his injuries. In the Particulars under Pt12 R4A filed on her behalf in May 1990, Mrs Ibrahim claimed out-of-pocket expenses of some $2,540.00. The Particulars then continued: "Loss of income The Plaintiff at the date of the accident was employed as a picker (sic) with Uniliver (sic). The Plaintiff has not worked since the date of the accident. The Plaintiff claims loss of wage (sic) at $300.00 per week from date of injury to date and continuing. 105 weeks x $300.00 per week = $31,500.00. Loss of enjoyment of life The Plaintiff because of her injuries will not be able to partake of normal social activities such as dancing, gardening, housework. Loss of earning capacity The Plaintiff has no capacity for work resulting from the accident. Her inability to work arises from physical and mental disability resulting from the accident and it is unlikely that the Plaintiff will be able to work in the future. Particulars of future economic loss The Plaintiff will require continuing hospital and medical treatment for her injuries. " The proceedings came on for hearing before Mahoney DCJ on 25 October 1991, the hearing, so far as I can judge it, occupying the whole day, at the conclusion of which - seemingly because of difficulties with listing arrangements in the District Court at the time - His Honour called for written submissions. A number of aspects of the hearing - some of them quite unsatisfactory - should be recorded. They are as follows: 1. although liability was in issue, no evidence was tendered on behalf of the Respondent as to circumstances in which the collision occurred; 2. despite the Particulars under Ptl12A which had been filed on behalf of Mr Ibrahim, counsel who appeared on the hearing for Mr and Mrs Ibrahim, in the course of his opening the matters to Mahoney DCJ, informed His Honour that no claim for economic loss - either past or future was to be made on behalf of Mr Ibrahim; 3. as I have earlier recorded each of Mr and Mrs Ibrahim gave his and her evidence through an interpreter; 4. despite the widely differing opinions contained in the reports which had been obtained, on the one hand, of behalf of Mr and Mrs Ibrahim, and, on the other, on behalf of the Respondent, none of the doctors concerned was called, either, to give evidence in chief, or, for the purposes of cross-examination, on the hearing, the medical evidence being limited to the tender, on each side, of the medical reports which had been obtained. While I can, I hope, understand the objectives sought to be achieved by court rules such as R8, R9 of Pt28 of the District Court Rules, I cannot forebear to say that the fact that the course which was adopted in the present proceedings appears to have become, at least a 10 UNREPORTED JUDGMENTS commonplace, if not the usual, practice In cases such as this, is to be regretted in the extreme as it, in my view, places a quite unreasonable burden on trial judges. Be that as it may, the necessary consequence of the adoption of that course is that - because the weight to be accorded to the opinions of medical experts depends to a great extent upon the accuracy of histories which have been provided to them and of the symptoms of which complaint has been made to them - the acceptance or rejection of those opinions will depend, to a great degree, upon the view which the trial judge takes of the credibility of the person, or persons, providing the history and making the complaints. 5. the transcript of the hearing before Mahoney DCJ contains the following note: "(Out of pocket (sic) agreed for the plaintiff Mohamed Ibrahim in the total amount of 41,485.00 and for Mariam Ibrahim in the total amount of $2,255.68)" at the conclusion of the case for the Plaintiffs. The various matters which I have just referred invite the following comments: 1. if - as I have earlier recorded he did - Mahoney DCJ were to form the view that Mr and Mrs Ibrahim's evidence was lacking in credibility, it would be open to him to conclude that, although - which does not appear to be disputed - Mr and Mrs Ibrahim suffer soft tissue or musculo-ligamentous injury in the collision, the injury which each suffered was not significant in extent and did not persist for long, in which event any verdict would be modest in amount; 2. but that any verdict ought to include the amount of out-of-pocket expenses which, in each case, had been agreed. As I have earlier recorded, Mahoney DCJ delivered his Judgment In each matter in May 1992, Judgment having been reserved for a little over 6 months. In the Judgment which he delivered in the proceedings brought by Mr Ibrahim, Mahoney DCJ, after recording the circumstances which had given rise to the proceedings and some of the evidence which had been tendered, continued (inter alia): "As far as I am concerned the Plaintiffs credibility is at a very low level indeed. I am not prepared to accept any of his complaints of pain or discomfort except to the extent to which the same are susceptible of corroboration from a source over which he is able to exert no control. Dr Bornstein, who examined the Plaintiff on behalf of the Defendant... accepts that he probably does have some degenerative condition in his cervical spine but that any effects produced by the motor vehicle accident on | January 1987 are of a minor order. I accept the views of Dr Bornstein in their entirety... " A little later His Honour continued: "Tt seems to me that there has been an extremely uncritical appraisal devoted to the plaintiff's presentation by Drs Rivett, Ghannoum and Maniam. I am satisfied that the amount of treatment expenses incurred by this plaintiff, which are agreed mathematically at $1,485.00 reflect excessive over-servicing of his complaints by the medical profession, certainly in the context of the extent to which such complaints are referable to the motor vehicle accident on | January 1987. Unfortunately, it is not open to me to dissect out of that agreed total just exactly how much would have been referable to the motor vehicle accident in 1987 and how much was referable to the earlier accident and/or the degenerative condition referred to by Dr Bornstein. In any event I tend to the view, on the basis of the reports by Drs Rivett, Ghannoum and Maniam that almost the whole of the expenditure was totally unnecessary. UBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JA)I There is no claim for any loss of wages or impairment of future income earning capacity and it then becomes necessary to access the general damages in the context of the one item of specific damage which in my view is excessive. I think justice is best served if I incorporate in the overall verdict of the totality of the out of pocket expenses claimed but have regard to that in the assessment of general damages. (sic) Part of the plaintiff's claim was for diminution of future income earning capacity. He claims that although he had been out of work prior to the accident on 1 November 1987 and had been so for some time, he was at the stage where he was in the process of looking for work and would have taken work if any had been available had it not been for the effects of this second accident on 1 January 1987. I do not accept that any of the consequences of this 1987 accident eroded in any way whatsoever his capacity to look for work or to accept any work which might have become available to him. - In fact, on the contrary, n is my view that this plaintiff is not in the slightest interested in taking work for wages. A combination of the size of his family and in the beneficence (sic) of the Commonwealth Government provides him and his wife with $760.00 per fortnight and I am quite satisfied that the plaintiff is adequately rewarded in his terms in this fashion and has not actively engaged in any search for work whatsoever. In the light of all these matters and in the light of the fact, as I find, that the plaintiff has mislead (sic) the various doctors and he has consulted in an attempt to inflate the quantum of this claim and that he has not only exaggerated but mislead (sic) this court about the consequences of the accident upon his person I propose to enter a total verdict and judgment in his favour in the sum of $2,500.00. I should probably also note that during the course of the opening address counsel for the plaintiff at the commencement of the case specifically abandoned any claim for economic loss on behalf of Mohamad (sic) Ibrahim. " In the Judgment which he delivered in the proceedings which had been brought by Mrs Ibrahim, Mahoney DCJ, after referring briefly to the circumstances giving rise to the proceeding, the nature of the claim made on behalf of Mrs Ibrahim and the evidence of Drs. Ghannoum, Maniam and Rivett continued: "Tt seems to me that all three doctors have been extremely uncritical in their consideration of the litany of symptoms with which the plaintiff has presented to them and that they have been remiss in failing properly to consider and analyse the question of attributability of the symptoms to the consequences of the motor car accident. Nothing in the case satisfies me that I should accept the views of Drs Maniam and Rivett that a disc lesion - accepting for the moment that one exists - which did not become apparent for something in the order of two years after the accident should be attributed to the consequences of the collision between the two vehicles. The plaintiff claims that she had been working for an ice cream factory up until the time of the accident but that as a consequence of these injuries she was certified unfit for anything but light work for a period of some few months after which she attended for work, attempted to carry out her duties for a couple of hours, was unable to do so because of the severity of the symptoms she was still suffering, and has not worked since. 12 UNREPORTED JUDGMENTS I find that this plaintiff has exaggerated when giving her evidence. I find that she has mislead (sic) rious doctors as to her symptoms. I find that she has sought to mislead Dr Power as to her pre-accident industrial history: she told him she had been working for 16 years, whereas the fact of the matter is that she had seasonal work over a period of seven years withe the ice cream factory and that of what could only be described as a relatively light nature, packing ice creams. I reject the evidence of Drs Ghannoum, Maniam and Rivett as to diagnosis and as to attributability. I accept the evidence of Dr Bornstein. Amongst other opinions, Dr Bornstein expresses the view that the radiological picture does not equivocally demonstrate the existence of a vertebral fracture. This, linked with the absence of any complaint of pain whatsoever at the hospital let alone of any severe pain, in the region of the vertebra in question, leads him to the view that the vertebra was not fractured. I accept that expression of opinion." Later, after referring to a number of aspects of the oral evidence which in his view led him to believe that Mrs Ibrahim was not a credible witness, His Honour continued: "All in all, I am quite satisfied that this plaintiff, as was the case with her husband, has actively sought to mislead medical practitioners and this court with a view to establishing a right to compensation at a level far in excess of that to which she is entitled for the relatively minor consequences of the motor vehicle accident on | January 1987. To the extent to which it remains uncorroborated from any source over which she has no capacity to exert a control or influence, I reject the plaintiff's evidence as to damages. I also reject her evidence as to her having been incapacitated from resuming a position in the workforce. I note that no one from her former employer has been called in her case and I draw the obvious conclusion that, if called, such a witness would not have assisted her case (see: Jones v Dunkel (101 CLR 298). I find that at every tum of the evidentiary wheel, she set out to exaggerate the nature of her claim. One of the many examples of that finding was the passage of evidence that she gave when asked if she knew the names of the various tablets which she claimed Dr Maniam was prescribing for her. As in the case of her husband I cannot accept that the need for any manipulations or injections or tablets or creams which she says Dr Maniam prescribed for her - quite apart from whether or not any of those prescriptions or treatments, if actually prescribed, were necessary at all - had anything whatsoever to do with the motor vehicle accident on | January 1987. As far as the interruption of her industrial working capacity is concerned, at most she may have been justified in absenting herself from her work place for a couple of days. The first of those would have been on New Year's day so in all probability she would not have been rostered to work on that day. There is no clear evidence from which I am able to quantify any such special damage accordingly I will take it into account in the award of general damages. Apart from that short period of a few days at the most, I find that the accident has not in any way whatsoever interfered with her capacity to earn income in the future and there will be no inclusion in her verdict of any sum under that heading of damages. The mathematical accuracy of her out of pocket expenses is agreed in the sum of $2,255.68. Whether or not any of the treatment to which that sum refers was necessary or appropriate is not of present concern to me. I content myself with UWBHJAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAB the finding that none of it was necessitated by any consequences of this motor vehicle accident on | January 1987 with the exception perhaps of the first attendance Upon Dr Ghannoum. In all of the circumstances, and bearing in mind that the total out of pocket expenses figure has not been dissected, I propose to allow the total sum but to take that matter to account in the assessment of general damages." Later again, after referring - in a passage which I find decidedly obscure and which I regard as having been expressed in language which is, to say the least, unfortunate - to the approach which he had taken to the question of the credibility of Mr and Mrs Ibrahim His Honour concluded: "The plaintiff's symptoms may very well, as she swore in evidence, have increased over the period of time between the motor car accident and the date of hearing. Even if that be the fact, she is not referring to any symptom which in my view has been caused, aggravated, exacerbated or accelerated in any way whatsoever by this motor car accident. Taking all these matters into account it seems to me that the plaintiff is entitled to a verdict and judgment in her favour in the sum of $2,500.00." It would be sufficient, in my view, to dispose of these appeals by recording that, even if - as we are obliged to do - one accepts His Honour's view as to the credibility to be accorded to the evidence of Mr and Mrs Ibrahim and the- consequence which that necessarily has upon the view to be taken of the medical evidence - that the injuries which had been sustained were not significant in extent and did not persist for long - a verdict, in each case, of $2,500.00 - given the agreed out of pockets in each case - was well below the limits of a sound discretionary judgment. The passages which I have recorded from each Judgment however, expose what are to my mind other unsatisfactory features about the way in which His Honour went about determining each of the proceedings thus: 1. the reference in the first Judgment to "excessive over servicing by the medical profession" - which phrase I take to mean the provision of services which were not in fact necessary and not believed to have been so - in my view ought not to have been made unless - which we were informed it was not - the issue was raised at the trial and the doctor, or doctors, in question had been given an opportunity to answer the charge; 2. if - which may be an overly charitable view to be taken of the matter what His Honour sought to convey was that such treatment as was provided to each of Mr and Mrs Ibrahim, although proper treatment in the circumstances, was not treatment called for by reason of any injury, or injuries, sustained by Mr and Mrs Ibrahim in the collision, then His Honour's inclusion in the amount which he awarded of the amount of out of pockets which had been agreed was, if I may be forgiven for saying so, completely illogical; 3. Mr Ibrahim having through his counsel indicated that no claim at all for economic loss either past or future or by way of impairment on income earning capacity was to be pressed on the hearing, His Honour's strictures upon Mr Ibrahim for not being engaged in seeking work and for his reliance on payments made by the Department of Social Security were of not the slightest relevance to any issue remaining open in the proceedings brought by him. In the circumstances, it is, in my view, inevitable that the appeals should be upheld, and the awards made by Mahoney DCJ set aside. Since, for the reasons to which I have earlier referred, it would be quite inappropriate for this Court to assess damages, it will be necessary for the proceedings, in each case, to be remitted to the District Court for a new trial limited to damages. 14 UNREPORTED JUDGMENTS For these reasons, the Orders which I would propose are, in each case: 1. ORDER that the Appeal be upheld. 2. ORDER that the Judgment entered pursuant to the verdict found by Mahoney DCJ be set aside. 3 ORDER that the matter be remitted to the District Court for a new trial limited to damages. 4 ORDER that the Respondent pay the Appellant's costs of the Appeal. ORDERS In each appeal: 1. Order that the appeal be upheld; 2. Order that the judgment entered pursuant to the verdict found by Mahoney DCJ be set aside; 3. Order that the matter be remitted to the District Court for a new trial limited to damages; and 4. Order that the respondent pay the appellants' costs of the appeal. Counsel for the Appellant: BS Robison/MAJ Daley Counsel for the Respondent: GF Butler Solicitors for the Appellant: Colin Daley Quinn (Kogarah) Solicitors for the Respondent: Turner Whelan