DT LAWS v GIO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 24 March 1995, 24 March 1995 [1995] NSWCA 255 Damages — no question of principle. Priestley JA I will ask Mr Justice Cole to give his reasons. Cole JA This is an appeal from the decision of Judge Rummery delivered on 29 July 1994 in which his Honour awarded the appellant the sum of $44,973.15. That sum comprised out-of-pocket expenses of $1,057.20, loss of earnings from 6 September 1986 to 1 February 1987 totalling $5,586, interest thereon totalling $3,300, a sum of $5,058.24 being his Honour's assessment of the loss of past economic capacity post 1 February 1987, and during the following 4 years, interest on that sum totalling $2,971.71. Having found that the plaintiff had substantially recovered from his injuries not later than 4 years after the accident, his Honour declined to make any allowance for future economic loss. His Honour awarded general damages of $27,000. The relevant history may be briefly stated. The appellant was 22 years of age on 8 September 1986 when he was involved in a motor vehicle accident. He was admitted to Liverpool Hospital on that day but discharged on 12 September 1986, 4 days after the accident. At the time of admission he was complaining of tingling in the left leg, a tender upper lumbar spine, and associated complaints. After his discharge from the hospital he was seen by his general practitioner Dr Borkar, who initially treated his complaints of what I shall call back pain with analgesics, anti-inflammatory drugs, and physiotherapy. He was seen by Dr Borkar in 15 September 1986 and was thereafter on 25 September 1986 referred to Dr Giblin. He saw Dr Giblin again in December 1986. He then returned to work at his place of employment and worked for the following 6 months. From May 1987 until August 1989 he worked with Lehmann Brothers, tilers, subject to various periods of unemployment. In August 1989 he suffered a knee injury which required reconstruction in that month. Some time in 1990 he commenced in partnership with a Mr Darcy a tiling business. In April 1990 a CT scan was done of his back, which revealed a disc protrusion at the L5/S1 level with indentations of the sac. His Honour made a number of critical findings: "11. In the accident the plaintiff sustained a musculo-ligamentous injury to his lower lumbar spine, a whiplash injury to his cervical spine, struck his head on the windscreen but did not lose consciousness, and exacerbated a pre-existing injury to his left knee. 12. As a result of these injuries the plaintiff suffered discomfort and pain, and was disabled, and unable to work until February 1987. 13. The plaintiff has failed to satisfy me on the balance of probabilities that he has a posterior disc protrusion at the lumbo-sacral level which can be causally related to the accident of 8 September 1986. 2 UNREPORTED JUDGMENTS 14. The plaintiff is a poor historian and has exaggerate his symptoms to me, as he has also to many of the doctors who examined him. I am not satisfied that the plaintiff has been frank and truthful as to the work he has been able to do, and has in fact done. His evidence in many respects was not persuasive, but was to my mind inaccurate, contained internal inconsistencies and generally did not impress me as evidence upon which I could rely with confidence. 15. 1am not able on the balance of probabilities to identify any specific periods since the plaintiff resumed work in February 1987 when he was, because of the injuries he sustained in the accident and their sequelae, unable to work and as a consequence of being unable to work lost income he would have earned from working. Most, if not all of the work he has done since leaving Flowerdale has been as a contract tiler. However I accept the opinion of Dr Peter Giblin which I have quoted, that the symptoms he experiences in his low back would persist intermittently for several years and would be aggravated by heavy and repetitive bending, lifting and twisting, which movements are necessarily part of the exercise of the trade of a tiler. This conclusion leads me to draw the inference that the plaintiff for a period I determine at 4 years from September 1986 incurred pain and discomfort in performing his work as a tiler on occasions, and on occasions was unable to do what he described as the heavy work. Given my understanding that most of the work he as done since the accident has been as a contract tiler, I also conclude it is more likely than not that there were times when his capacity to earn income was affected by the effects of the injuries and disabilities upon him for the period I have mentioned. Thus, for this period 4 years I will allow him a partial loss of earning capacity. 16. I accept the complaints of the plaintiff in other material and the opinions of the plaintiff in other material and opinions in the reports of Dr Borkar and Dr Peter Giblin. I accept also the conclusions of Dr Ireland and Dr Bodel. 17. I do not accept the opinions of Doctors Cunningham, Kendall, Rial, Taylor and Castle where they are at variance with the opinions expressed by Doctors Borkar, Giblin, Ireland and Bodel. 18. Exacerbation of the pre-existing injury to the plaintiff's left knee was not the cause of him having the undergo knee reconstruction surgery at the hands of Dr Sorrenti." As appears from finding 14 the trial Judge rejected the appellant as a witness of truth. That finding by the trial Judge was accepted by the appellant for the purposes of this appeal. The critical finding was finding number 13, which was in essence that the plaintiff had failed to satisfy the trial Judge on the balance of probabilities that he had a posterior disc protrusion at the lumbo-sacral level which could be causally related to the accident of 8 December 1986. That was critical because absent that finding his Honour was entitled to and did regard the appellant's claim as being of a much lesser severity than would have been the case if his Honour had found that the posterior disc protrusion which Dr Taylor found in 1990 was related to that accident, as the sequelae of any such protrusion may be serious and of long duration. In the result the trial Judge found that the sequelae of the accident had resolved within a short period of time after the accident, with only a minimum loss of earning capacity, the loss and deficiency in earning capacity terminating after a period of 4 years. There was a great complex of medical evidence and a great conflict in it regarding whether the disc injury, first found almost 4 years after the accident, was causally related to the motor vehicle accident. As I have said, that was found URJ DT LAWS v GIO (Cole JA) 3 against the appellant. In making that finding the trial Judge, after reviewing the medical evidence called on behalf of the plaintiff, stated: "Tt is to be noted that the only doctor who has seen the CT scan which shows a disc protrusion is Dr WG Taylor. All other doctors who mention it rely only upon the report. It is also significant that the CT scan was performed over 3 and a half years after the accident, and despite the lapse of almost 4 years from April 1990 until the hearing it has not been followed up with another CT scan or a myolegram. I also note that the suggestion of Dr Giblin in his report of 12 June 1992 that the plaintiff have a CAT scan of the neck and low neck to exclude any significant focal pathology has not been taken up." It was, in my view, material for the trial Judge to note and record the fact that the CT scan which Dr Taylor said showed the protruded disc was not taken until 4 years after the accident. That was relevant because it indicated that a number of medical practitioners, including the appellant's treating doctor, had not thought within that time that the nature and extent of the appellant's injuries were such as to require the taking of a CT scan, which would assist a finding that the consequences of the injuries suffered by the appellant in the motor vehicle accident had diminished, if not evaporated, prior to that time. The appellant's written submissions put the submission that the great preponderance of evidence was that the appellant's disc lesion was caused by the accident. It was submitted that as the disc injury was not diagnosed until April 1990. earlier medical reports were of limited assistance. That submission hinges upon the view that the CAT scan which showed the disc injury in 1990 is a piece of empirical unchallenged evidence which required the trial Judge effectively to accept the evidence called on behalf of the appellant that the disc injury was causally related to the motor vehicle accident. That was said to be so because it was contended that the trial had been conducted upon the basis that Dr Taylor, a respected orthopaedic surgeon, had said that in a CAT scan he saw a moderately protruded disc when he arranged the CAT scan in 1990. He did not, at least in terms, link it causally with the motor vehicle accident. However, Dr Cunningham, Dr Kendall, Dr Rail and Dr Castle, none of whom saw the CAT scan but all of whom accepted Dr Taylor's interpretation of the CAT scan showing the disc protrusion, linked that protrusion and thus that injury, to the motor vehicle accident. In addition to that the appellant submitted that the case has been litigated upon the basis that assuming the disc injury existed then - it not having been suggested that it was the result of the development of any degenerative change or condition in the appellant's back, and it not having been suggested that it was the result of any post accident trauma - the Judge was thus obliged to find that the disc injury found or detected by Dr Taylor in 1990 existed, and, secondly, that it was causally related to the 1986 accident. There is some force, indeed considerable force, in that submission. The trial Judge however considered the evidence of Doctors Cunningham, Kendall, Rail, Castle and Taylor, but did not accept them. He accepted the evidence of Dr Borkar, Dr Giblin, and conclusions of Dr Ireland and Dr Bodel. As is frequently the case, a series of medical reports were tendered by both parties. None of Dr Borkar, Dr Giblin, Dr Ireland and Dr Bodel were called as witnesses. They were obviously thus not cross-examined. Their reports were simply tendered, and as such became evidence upon which his Honour was both obliged to and entitled to make findings after properly considering them. Dr Borkar's view expressed in a report of June 1987 said: 4 UNREPORTED JUDGMENTS "This man as a result of a motor vehicle accident has sustained soft tissue injury to his back, which has healed satisfactorily. It is very unlikely to give him problems in the future." Dr Giblin in a report dated 23 June 1988 indicated that he had seen plain x-rays of his low back and that they were normal for his age. He said: "I accept that his symptoms would persist on an intermittent basis for several years, being aggravated by heavy repetitive bending, lifting and twisting, During this period he would probably be fit for light duties." Dr Giblin saw the patient at a later point in time, and in a report dated June 1992 noted that the appellant's hands were thickened with heavy callouses, found him unco-operative on examination, he had no x-rays with him, and Dr Giblin suggested that there be taken a CAT scan of the neck and low back to exclude any significant local pathology. That was never done. Dr Ireland saw the patient in August 1988, that is some 2 years after the accident. He said: "X-rays of 8.9.86 show that the low lumbar spine has large Schmorls nodes. The lateral view at that time shows a straightening or loss of the lumbar lordosis. Films of the cervical spine were normal. New x-rays of the lumbar spine were taken on 30.8.88. These show large Schmorls nodes, particularly at the L4/L5 level but no disc space narrowing, and the normal lumbar lordosis appears to be preserved on these recent pictures." His conclusion was: "There is no evidence of disc upset. I am fully dependent upon what he tells me about his inability to engage in full vigorous use of his back." Dr Bodel saw the patient in July 1991, that is some 5 years after the accident. He said he saw "x-rays of the patient's cervical and lumbar spines done on 8.9.86 and these are normal". His prognosis was: "Tn the low back the patient also sustained a soft tissue injury but there is no evidence of structural abnormality in this region which would explain his ongoing complaints. I can find therefore no evidence of permanent impairment in this area." Ihave referred to that evidence in some detail because the trial Judge accepted it for the purpose of determining whether or not he was satisfied that there was a causal connection between the motor vehicle accident and the disc protrusion which Dr Taylor detected some 4 years after the accident. The appellant's case before this Court was that in essence the trial Judge was obliged to reject the views of those four doctors because they had not seen the CAT scan of 1990 which, according to Dr Taylor, showed the moderate disc protrusion. As I have said, none of those four doctors were called for cross-examination. That meant that there was simply left before the Judge two alternative views in relation to the appellant's medical condition, and, relevantly, two views which would follow from resolution of that conflict about any causal connection between the motor vehicle accident and the disc injury which Dr Taylor said that he had seen. It seems to me that if the appellant wished to negate the evidence of Doctors Borkar, Giblin, Ireland and Bodel it was incumbent upon him to put before those doctors the CAT scan which it was said showed the disc protrusion. with a view to seeking to obtain from them a concession both that there had existed such a disc protrusion, and that the view they had previously expressed, that the back injury suffered in the motor vehicle accident had in essence resolved, was not correct. If that course was not followed then there remained unchallenged before URJ DT LAWS v GIO (Priestley JA) 5 the trial Judge evidence upon which he was entitled to find that he was not satisfied that any disc injury, assuming one existed, discovered in 1990, was causally related to the motor vehicle accident. Absent that course being adopted there was before the trial Judge uncriticised evidence to the effect that the appellant had shortly after the accident recovered from its effects. The evidence was left in the state that there was a body of medical evidence that x-rays taken immediately after the trauma of the accident did not disclose any back deficiency. There was a history given to doctors which, with the examination which they conducted of the appellant, justified the diagnosis which Doctors Borkar, Giblin, Ireland and Bodel had made. It is not necessarily self evident that, particularly where the trial Judge did not accept the appellant as a witness of truth, and thus did not necessarily accept his account of the activities in relation to his tiling work, the finding of a protruded disc in 1990 necessarily flows from the motor vehicle accident almost 4 years before. Yet the basis of the appeal today was in essence that the finding of such disc protrusion by an empirical x-ray assuming one accepts Dr Taylor's interpretation of it 4 years after the accident must of necessity mean that the trial Judge was obliged to reject the evidence of Doctors Borkar, Giblin, Ireland and Bodel who had found that the back condition of the appellant had resolved prior to that time. It follows, in my view that there was evidence upon which the trial Judge was entitled to reach the finding which he did of absence of the causative link between any disc protrusion which Dr Taylor may have found in 1990 and the motor vehicle accident. Once that issue is resolved contrary to the interests of the appellant, then it seems to me the other matters the subject of this appeal follow. His Honour did not accept the appellant as a witness of truth. His Honour assessed the past economic loss by reference to a period of 4 years and doing the best he could determined what that loss was for some time within that period. I can see no basis for holding that his Honour's finding was unsafe in that regard. It also follows that if, his Honour was unable to find the to necessary standard of proof the causal link between the disc protrusion and the motor vehicle accident that his Honour was entitled not to award any future economic loss for loss of future economic earning capacity on the basis that the injuries from the motor vehicle accident had in truth resolved within a 4 year period after it. Given the findings his Honour made, it seems to me that the general damages which his Honour awarded have not been shown to be outside the permissible range, if one regards the injuries suffered by the appellant in the motor vehicle accident as being those which had resolved within a 4 year period. In those circumstances in my opinion the appeal should be dismissed with costs. In these reasons I used the expression "unchallenged evidence" in speaking of the evidence of Doctors Borkar, Giblin, Ireland and Bodel. I later used the expression "uncriticised evidence". I think the later expression is the more correct because it could be stated that the evidence of Doctors Borkar, Giblin, Ireland and Bodel was challenged by the calling of medical witnesses on behalf of the appellant and the evidence which they gave. Priestley JA I agree. In regard to the last matter mentioned by Cole JA, I think it can be accurately said that the evidence to which he was referring was not directly challenged, although there was competing evidence, so that the evidence 6 UNREPORTED JUDGMENTS relied on by the plaintiff in the appeal here today was certainly not overthrown and was left available for the consideration of the trial Judge in competition with the evidence of the plaintiffs doctors for the trial Judge to weigh, and, in the circumstances of the case, including his view of the credibility of the plaintiff which would be relevant to the weight to be attached to the opinion of the doctors whose evidence was relied upon by the plaintiff, in so far as their opinions depended upon the reliability and the history which he gave them from time to time. The order of the Court therefore is that the appeal be dismissed with costs. Counsel for the Appellant: A Lidden Counsel for the Respondent: J Ringrose Solicitors for the Appellant: L and R Brydens Solicitors for the Respondent: P Andresakis (Solicitor for the Government Insurance Officer of NSW)