STEDUL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and POWELL JJA 2 May 1995, 2 May 1995 [1995] NSWCA 453 Damages — Personal injuries — Inadequacy Practice and Procedure — Experts reports — Service of — Report produced on subpoena — Whether admissible even though not served District Court Rules Pt28 R9 Dawson v Hall (Court of Appeal 29 July 1994 (as yet unreported) Handley JA I will ask Powell JA to deliver the first judgment. Powell JA This is an Appeal from a verdict found, and judgment entered, on 29 October 1993 by McLachlan DCJ in proceedings which had been brought by the present Appellant seeking to recover damages for the negligence of the Respondent's insured in the driving of a motor vehicle in April 1986. A variety of grounds of appeal have been taken but, in substance, the principal ground of appeal is that the award of damages which his Honour made in favour of the Appellant was "manifestly inadequate", the other grounds of appeal being subsidiary in nature, and going to matters which, so it has been submitted, affected, or were likely to have affected, the reasoning process which led his Honour to find the verdict in the amount which he did. The proceedings related to an incident which, as I have earlier indicated, occurred in April 1986, at which time the Appellant was employed, as he had been, for about six years prior thereto, as a bus driver, driving buses for the Urban Transit Authority ("the Authority"). At the time, the Appellant was, in the course of his employment, driving one of the Authority's buses in Canterbury Road, Campsie, when a truck attempted to cut across from one lane to another and struck the bus which the Appellant was driving, causing it to be moved sideways and to collide with another motor vehicle, and causing the Appellant to fall forward and strike his chest on the driving wheel. Although the damage to the bus caused by the collision was such as required it to be taken out of service, and although the Appellant said that, shortly after the collision had occurred, he felt a little off colour, the Appellant continued on his shift when a replacement bus was made available to him. The Appellant continued to work his shifts for a period of about a week to ten days thereafter, when, so he says, he commenced to suffer a variety of symptoms, including, in particular, symptoms in the area of his cervical and lumbar spine. At first the Appellant consulted his local doctor, who gave him rather conservative treatment, but, later, the Appellant was referred to a Dr G Mahoney, a consultant orthopaedic surgeon for treatment. X-rays taken at the time revealed early degenerative changes in the cervical spine and the lumbo sacral spine. At first, Dr Mahoney treated the Appellant with manipulation and anaesthetics and this appears to have provided him some degree of relief. Within a short time thereafter, the Appellant began to complain of symptoms referable to a left carpal tunnel syndrome, which symptoms later led Dr Mahoney to operate to divide the left carpal ligament and release the median nerve. 2 UNREPORTED JUDGMENTS The Appellant continued to receive treatment by Dr Mahoney for a period of some 12 months or so, during which time several further manipulative procedures were conducted under general anaesthetic at hospital. By August 1987, Dr Mahoney was of the view that the Appellant was fit for work, but not work which required him to indulge in heavy lifting, standing or bending. This notwithstanding, it would appear that the Appellant has never returned to any form of employment, let alone full-time employment. It would appear - although the evidence is rather confusing - that it is probable that the Authority's Workers Compensation insurers terminated payments of workers' compensation to the Appellant at about the time of the report of Dr Mahoney to which I have earlier referred, from which time, and until the time of the hearing before McLachlan DCJ, the Appellant's income was limited to payments made by the Department of Social Security. The Appellant claims that his symptoms have continued, and, if anything, have become worse, over the years that have since passed. In the evidence which he gave at the hearing before McLachlan DCJ, the Appellant claimed that, while he had a limited capacity to carry out light duties, he remained unfit to carry out duties of the type that had been required of him when a bus driver, and that, although, in the period from 1987, he had sought positions involving light duties, he had not been able to obtain any form of paid employment. The Appellant's case, in this latter respect, seems to have been that, although he was able to provide a list of the names of those to whom he had applied for employment in the period of two years from 1987 to 1989 to which I have referred, and although he continued from time to time to seek employment, he found no purpose in continuing the list. The Appellant's case at the trial, thus, was that he had been totally disabled from employment for a period; that he continued to be disabled from employment of the type which he had enjoyed prior to the accident; and that he was, thus, entitled, not only to compensation for past economic loss, but also to compensation for future economic loss. The hearing before his Honour took what, I regret to say, appears to be, if not the usual, then, at least, a not uncommon, form these days. The only oral evidence which was tendered at the trial was that of the Appellant himself, all the other evidence going to matters of injury, disability, economic loss and the like, being in the form of written reports or other documents of a similar nature. The difficulty which this caused for his Honour was that among the various reports which had been tendered on each side, there was what can only be described as an extraordinary range of opinions as to the nature, and extent, of the Appellant's orthopaedic injuries and any residual effects therefrom, and as to the nature of, and causes of, any mental, or psychogenic, condition from which the Appellant was said to suffer and, in particular, whether that mental, or psychogenic, condition was caused by the injury in question. As one indication of the nature of the range of such opinions, I record that, in contrast to the view expressed by Dr Mahoney in August 1987, to which view Dr Mahoney continued to adhere, other doctors who had examined the Appellant expressed the view, that, as from no later than late 1989, the Appellant was fit for his pre-injury employment. As a further indication of the range of views which were tendered in the reports as to the Appellant's mental, or psychogenic, condition, I record that they included opinions to the effect that the Appellant had a continuing post traumatic stress disorder; a chronic pain syndrome; an hysterical reaction; and that the Appellant was malingering. \GREDUL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAB In a case such as this was, a trial judge is placed in what seems to me to be an incredibly difficult position. However, as in the end, McLachlan DCJ was called upon to choose between competing opinions offered by medical specialists, and, as the value attributed to any such opinion depended, in the ultimate, to a substantial degree, upon the acceptability of any history given, and symptoms reported, to the opinion giver, the credibility of the Appellant, who gave the history, and report the symptoms of which he complained, in each case, therefore, became a critical matter for his Honour to determine. The critical issues of which complaint is made in his Honour's award were as to general damages for pain and suffering, and as to past, and future, economic loss and, of these, as it seems to me, the major items are those for economic loss. Although one has come to accept the use of such terms, it is to be remembered that, in cases such as this, an injured plaintiff receives damages for loss of, or impairment to, his capacity to earn, rather than a direct recovery of past, or future, lost earnings. This being so, a plaintiff, who seeks to recover damages under these heads, must establish, not merely an injury and a continuing diminution of his earning capacity, but that that diminution in capacity has been, or may well be, translated into financial loss. Further, as it seems to me it is incumbent on a plaintiff claiming damages under these heads to provide a trial judge with the material which enables him to calculate the appropriate quantum of damages to be allowed. In the present case McLachlan DCJ, clearly, was not greatly impressed by the Appellant as an historian, and he seems to have taken the view that the Appellant was, if not prepared to lie when it suited him, at least, a person blessed with a convenient lack of memory when pressed with difficult questions, and, further, that, at times, the Appellant was inclined to exaggerate. That being so, it is hardly surprising that, as he did, McLachlan DCJ concluded that, by no later than the end of 1989, the Appellant was fit for his pre-injury work. In the absence of any real evidence which would have enabled him to form a view as to the likely prospective loss, his Honour was, thus, obliged, as he did, to fall back on the provision of what is sometimes called, "a cushion", or, "a buffer', for the future against the prospects of loss which might be caused by any residual disability to which the Appellant might have remained subject. I see no error in his Honour doing so in the present case. As I have indicated, the other grounds of appeal which were raised were matters of a subsidiary nature. Of those, only one, as it seems to me, needs to be recorded. It was said that McLachlan DCJ was in error in admitting into evidence, at the behest of the Respondent, a report which had been provided by Dr JW Shand, a well known, and respected, psychiatrist, which report had been provided, not to the Respondent or its advisers, but to the Authority and its advisers, no doubt in relation to the claim which had, prior to the report being provided, been commenced by the Appellant in the Compensation Court for compensation in relation to the sequelae of the accident in 1986. That report was not made available to the Appellant until the morning of the trial, when a solicitor/clerk answered, on behalf of the Authority, a subpoena which had been addressed to it, among the documents which were then produced being the report to which I have earlier referred, and another report that other report being a report by a Dr Lyons, who is an orthopaedic specialist. When the Respondent's counsel sought to tender Dr Shand's report, and Dr Lyons' report, objection was taken that they had not, prior to the hearing, been served upon the Appellant's legal advisers and, thus, unless the Court otherwise 4 UNREPORTED JUDGMENTS ordered, by virtue of the provisions of the District Court Rules, they were not admissible in evidence. However, as Handley JA pointed out during the course of argument, this Court has recently held, in Dawson v Hall,! that the provisions of Pt28, R9 of the District Court Rules, do not apply to a report made available on subpoena in circumstances such as that to which I have just referred. That being so, the only questions remaining for McLachlan DCJ to determine were, first - a question which appears as if it may not have been raised at the time - whether or not the reports were admissible pursuant to the provisions of s14B or s14C E of the Evidence Act; and second - a question which McLachlan DCJ clearly did consider - whether or not, in the circumstances, the Appellant's advisers had been taken by surprise and, if so, whether an adjournment, if sought, ought to be granted. Having considered both the reports of Dr Shand and Dr Lyons, McLachlan DCJ concluded that, while, given the wide variety of opinions which he already had before him on orthopaedic matters, he would probably derive no great assistance from Dr Lyons' report if it were admitted into evidence Dr Shand's report might be of assistance, and, that being so, while rejecting the tender of Dr Lyons' report, he admitted Dr Shand's report. At the same time, however, McLachlan DCJ indicated that he would consider any application which Mr AJ Lidden, who appeared for the Appellant might wish to make once the report was accepted into evidence. No application for an adjournment having been made, it seems to me that no further ground of complaint can be made in relation to Dr Shand's report. Mr Lidden, who has appeared again today for the Appellant, has, in his usual fashion, said everything that could possibly be said on the Appellant's behalf. However, he has not persuaded me that, in any of the respects to which I have referred in the course of these reasons, or in any of the other respects raised by him in his written submissions, McLachlan DCJ fell into error. For these reasons, I would propose that the appeal be dismissed with costs. Handley JA. I agree. In my opinion, the various challenges made by the Appellant to the trial judge's credibility based findings and judgment in this case all fail. I agree with the Order proposed by my brother Powell. The order of the Court, therefore, will be; Appeal dismissed with costs. Counsel for the appellant: AJ Lidden Solicitors for the appellant: I and R Brydens Law Office (Liverpool) Counsel for the respondent: GJ Drake Solicitors for the respondent: Gordon and Johnstone 1. 29 July 1994, as yet unreported