STIEPEWICH v KOURA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ and HANDLEY JA 7 June 1995 [1995] NSWCA 457 DAMAGES - Appeal from a District Court judge on assessment of damages for personal injuries arising from a motor vehicle collision - HELD - no error was shown - no question of principle involved. Gleeson CJ. This is an appeal from a decision of his Honour Judge Patten in the District Court. In February this year his Honour gave judgment for the respondent/plaintiff in the sum of $127,585.30 for personal injuries arising from a motor vehicle collision. The issue before the trial judge was limited to the assessment of damages. The relevant facts concerning the accident can therefore be stated shortly. The accident occurred in July 1989. The respondent was driving his station wagon north along Pacific Highway. When he arrived at the intersection of the Pacific Highway and Mowbray Road he intended to turn into Mowbray Road. He stopped at the red lights at the intersection. Other members of his family were passengers in his car. A car driven by the appellant collided with the rear of the respondent's vehicle. The collision was apparently not very severe and the police were not called. The respondent did not immediately notice anything wrong, but the next day he consulted his general practitioner. He complained ofpain in the neck, shoulders, thoracic spine and knees. X-rays were ordered. In October 1989 he was referred to an orthopaedic specialist, who saw him over the following years. At the time of the accident the respondent was aged fifty-four years. He was an unskilled worker and was employed as a cleaner at the Royal North Shore Hospital. He had come to this country from Lebanon. The respondent was off work, certified unfit by his doctor, for about nine months after the accident. At the expiration of that period of nine months he felt able to return to work and attempted to do so. However, upon returning to Royal North Shore Hospital he was informed that his former employment was no longer available. The plain inference is that his prolonged absence from work following the motor vehicle accident was an important factor in that decision on the part of the hospital. Thereafter, the respondent sought employment at a number of other hospitals and on one occasion with a cleaning contractor. Despite what the trial judge found to be genuine efforts to secure employment, he was unable to find a job. He was still unemployed and aged fifty-nine when the matter came for trial. In his final year of employment at the Royal North Shore Hospital the respondent's net weekly wage was $321.25. The damages awarded by Patten DCJ were made up as follows: General Damages, $25,900; Out-Of-Pocket Expenses, $1685.30; Past Economic Loss, $80,000; Loss of Future Earning Capacity, $20,000. 2 UNREPORTED JUDGMENTS The assessment of damages was somewhat complicated by the fact that in 1994 the respondent was diagnosed as having heart disease and underwent by pass surgery. The opinions of a number of medical practitioners were before the trial judge. Some of them had reservations about the reliability of the respondent's account of his symptoms, but the trial judge accepted him asan honest person and preferred the evidence of Dr Evans to that of medical witnesses with whom Dr Evans was in disagreement. The first report of Dr Evans said that as a consequence of the motor vehicle accident Mr Koura had suffered aggravation of pre-existing degenerative changes in his cervical spine. He had also suffered soft tissue injury. The report said that the respondent continued to have pain in his neck, head, right shoulder and arm and upper mid-thoracic spine. Dr Evans said: Mr Koura is of borderline fitness for his previous work of domestic services foreman. He is fit for light duties not requiring a great deal of movement of the neck or vigorous use of the right arm. He is not likely to obtain another job. He is likely to continue to suffer discomfort in his neck, head, right upper limb and upper to mid-thoracic spine. This permanent impairment of Mr Koura's neck is 16 per cent. The permanent impairment of his back is 5 per cent. The permanent loss of effective use of the right arm at or above the elbow is 9 per cent. In a later report in November 1994 Dr Evans said: He continues to have pain and tenderness in the thoracic spine ... Mr Koura is fit for work not requiring him to bend or twist his neck or back or to carry weights heavier than six kilograms. He is probably not fit for his previous occupation as a domestic services foreman. That assessment of course is to be evaluated in the light of the respondent's lack of personal skills. In the same report the prognosis was said to be that the respondent was likely to continue to suffer discomfort in the neck and thoracic spine and to suffer from continuing cervical headaches. Dr Evans in this report assessed the permanent impairment of Mr Koura's neck as 28 per cent, the permanent impairment of his back at 13 per cent, and loss of efficient use of the right arm at or above the elbow at 3 per cent. Dr Evans was shown a video which had been secretly taken, and he regarded the movements of the respondent as depicted in that video as consistent with his own findings and as consistent with the respondent's complaints to him. The principal challenge to the award of damages concerns the amount awarded for past loss and for loss of future earning capacity. The basis of the challenge is that Patten DCJ is said to have taken no account of the respondent's own evidence that he assessed himself, after the period of nine months earlier mentioned elapsed, as being fit to resume work. The evidence showed that following his unsuccessful attempt to resume his former employment with the Royal North Shore Hospital the respondent made genuine and serious efforts to find other employment. That, it is true, demonstrates a subjective assessment that he had some measure of working capacity. On the other hand, in his earliest report Dr Evans had predicted that the respondent would be unable to obtain other employment, and that prediction turned out to be true. URJ STIEPEWICH v KOURA (Gleeson Cu) 3 In this connection it is important to bear in mind the combination of circumstances which confronted the respondent, that is to say, his age, the significant reduction in his physical fitness, the circumstance that he was fit only for manual labour in terms of his employment history and training, and the state of the employment market. It is notorious that men of the respondent's age and lack of skills find it extremely difficult to obtain employment if they have lost their jobs, especially when they are carrying a significant injury. The prediction of Dr Evans that the respondent would be unable to find other employment was based in large measure upon common sense. There is, in my view, no inconsistency of the kind alleged by the appellant between the respondent's persistent attempts to find work and the conclusion of the trial judge that the wages lost by him between thedate of the injury and the date of the trial were causally related to the accident for which the appellant was responsible. It should be mentioned in passing that the amount awarded to the respondent was discounted by reason of the possibility that his pre-existing degenerative condition would have worsened in any event and also to allow for the effect of his heart disease. The finding that was the subject of specific challenge was as follows: In my opinion, the plaintiff established that the subject accident effectively ended his working life. That finding, it is said, is inconsistent with the finding that the respondent was an honest witness. It is then argued on behalf of the appellant that the evidence given by the respondent as to his subjective assessment of his capability of returning to work compelled a finding different from that quoted above. There are a number of answers to that submission. The first is that it is in no way inconsistent with a finding that the respondent was an honest witness that the trial judge should have treated the evidence of Dr Evans as the most reliable source of information about the respondent's capacity for work. The trial judge made the following finding based on the evidence of Dr Evans: Although, as demonstrated in the video, he is not totally incapable of physical activity, I am satisfied that he is certainly not capable of working an eight hour day performing physical work as required in his previous employment or any similar employment. He has no qualifications for anything other than manual work and his imperfect English provides a further handicap. It is also material to take account of the fact that, as a reading of the transcript reveals, the respondent suffers significant languagedifficulties and a good deal would have turned upon the trial judge's assessment of what the respondent was trying to tell him in connection with his attempts to return to work. A sidelight on the submission which is not without its amusing aspects is thrown by a question that cross-examining counsel for the appellant asked of Dr Evans, and to which we were referred in argument. The question was as follows: Q. You would agree, would you not, that Mr Koura would be the best judge of how he felt about whether he could do his other job or not? A. It certainly meant that he felt he could do it but it doesn't mean that he could do it, yes. It is to be noted that cross-examining counsel carefully inserted the words 'how he felt about' and carefully avoided asking Dr Evans whether Dr Evans would agree that Mr Koura would be the best judge of whether he could return 4 UNREPORTED JUDGMENTS to his old job or not. That prudent decision on the part of cross-examining counsel illustrates, in my view, the difficulty which is involved in this submission. The other challenge to the damages relates to the amount awarded for general damages. This amount was based upon an assessment by the trial judge that 20 per cent was the appropriate proportion to be awarded under the relevant provisions of the Motor Accidents Act. In the light of the medical evidence, particularly that of Dr Evans, accepted by the trial judge, I am unable to attribute error to this discretionary decision. I would propose that the appeal be dismissed with costs. Handley JA. I agree. Gleeson CJ. The order of the Court will be as I have proposed. Appeal dismissed with costs. Counsel for the appellant: J Harrison Solicitors for the appellant: McCulloch and Buggy Counsel for the respondent: W Strathdee Solicitors for the respondent: George Sten and Co