SMALL v KUCLKAKYUZ SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, CoLe JA and ROLFE AJA 16 March 1995, 16 March 1995 [1995] NSWCA 435 DAMAGES — general damages attributability to injury and_ pre-existing degenerative condition — trial judge allows $40,000.00 for disabilities over ten years — whether appealably inadequate — held (by maj): It was not. DAMAGES — quantum of — whether appealably inadequate — injury to plaintiff's back and neck — aggravation of pre-existing but non-symptomatic condition — challenge to past economic loss and future loss of economic capacity — challenge to general damages of $40,000.00 — consideration of evidence of ex-wife as to pre- and post-injury condition — evidence of stiffness, restriction of movement, inability to perform physical exercise, interference with sleep and reduction of capacity to engage in sport and hobbies as well as disturbance of marital relationship — held: (1) (By the Court): The challenge to the judge's findings on past and future economic loss was without substance; (2) (per Cole JA and Rolfe AJA; Kirby P dissenting): The allowance of $40,000.00 for general damages was within the range available to the primary judge and although (per Rolfe AJA) it was towards the lower end of the permissible range, it did not warrant disturbance by the Court of Appeal; (3) Judgment sustained and appeal dismissed. Cole JA The appellant, Peter Eric Small, was born on 9 December 1936. He was thus aged 45 years at the time of an accident in which he was involved on 2 August 1982 and was 57 years of age at the time of the hearing in July 1994. The matter before the court on this appeal relates to quantum only. The appellant described his position prior to and after the accident as being to the effect that he was both required to and able to undertake heavy manual work in his capacity as a bartender such work involving lifting of kegs, cartons of beer, spirits and the like. After the accident he said that he could only do this with considerable difficulty and with the assistance of his workmates. His capacity in that regard was such as to ultimately effect his permanent retirement, which effectively occurred on 11 July 1984. His efforts to work after that date have been essentially ineffectual. He also said that after the accident and in consequence thereof he had suffered neck pain, headaches and a degree of discomfort in his lumbar region throughout the years following the accident. Those sufferings were not constant in the sense of always being present but they were experienced continually and were exacerbated by moderately energetic activity. There was evidence not only from the appellant but from his wife, her evidence being unchallenged, that the effects of the accident resulted in him suffering some pain and there had been consequential effects upon his marriage. The learned trial judge (Donovan AJ) made two findings of importance. The first is found at 528. His Honour found: 2 UNREPORTED JUDGMENTS "Tt is my view that there is a significant body of evidence which suggests that the plaintiff's pre-existing condition would, by the age of 55, have manifest itself to such an extent that any problem arising out of the injury would have disappeared." That was a reference to the circumstance that, although the appellant had not told a great number of doctors whom he had seen that he had suffered pre-existing neck problems, in fact it was established that he had. There was a body of evidence dealing with the likely consequences and sequelae of that pre-existing condition. The second major finding was, and this is at 529: "T have therefore come to the conclusion that the plaintiff did suffer his neck problems as a result of the accident but that those problems had been overtaken and for practical purposes no longer existed by the time he was 55. Accordingly, I shall approach the question of damages on that basis." Having stated that, he took into account the circumstance which he accepted because of evidence exterior to that given by the appellant orally that prior to the neck injury suffered in the motor vehicle accident his pre-existing neck condition had been asymptomatic from 1977 to 1982 but was exaggerated and aggravated by the 1982 accident. His Honour awarded the appellant $40,000 for general damages. He also found that the appellant was not entitled to damages for past loss of earning capacity after 1 July 1992, that is some 10 years after the accident, being the time when the appellant achieved 55 years. Nor was he entitled to any damages for any future loss of earning capacity. The case thus was one in which the appellant was shown to have had a pre-existing deteriorated neck condition that was aggravated by the motor vehicle accident. His Honour found that that aggravation would have ceased effectively by July 1992 and that any condition thereafter of which the appellant suffered was not the result of the motor vehicle accident but was a result of the continuing effects of the injury admittedly suffered by him prior to the motor vehicle accident. It was argued by Mr Grieve, Senior Counsel for the appellant, in reliance upon Watts v Rake! and Purkess v Crittendon? that the onus was on the respondent/defendant to show that there had existed prior to the motor vehicle accident an injury, that it would have continued after the effects of the motor vehicle injury had subsided, and also that the existing condition from which the appellant suffered at the time of trial was in truth due to the prior condition rather than the motor vehicle accident. So much may be accepted. It was argued that there was no evidence to support findings that the effect of the accident had subsided or would have subsided by 1992 and that any then disabilities were the result of the pre-existing degeneration to the appellant's spine. In my view, there was evidence to support the findings made by the trial judge. The question essentially reduces to two aspects. There was clear evidence, upon the basis of observed pathology, that the appellant had a deteriorated spine prior to the accident. So much was agreed to by Dr Dowda, Dr Fearnside, Dr Searle, Dr Middleton and Dr Potter. There was also evidence that the effects of the injuries consequent upon that deterioration and the process of deterioration would continue throughout the balance of the appellant's life. 1. (1960) 108 CLR 158 2. (1965) 114 CLR 164 at 168. URJ SMALL v KUCLKAKYUZ (Kirby P) 3 There was also evidence available to his Honour that the consequences of the accident, that is the aggravation to the pre-existing condition, would have subsided at least by the period of 1992 which his Honour found. Such evidence is found in the evidence of Dr Potter, Dr Chan, Dr Bourke and Dr Miller. It follows, in my view, that there was evidence which satisfies the matters to which I have referred as being necessary ingredients to establish that the post 1992 conditions were in fact the sequelae of conditions which existed prior to the motor vehicle accident. In those circumstances, in my view, there is no basis for disturbing the findings of the learned trial judge in relation to that aspect. The consequence is that his Honour's findings in relation to damages for loss of both past economic capacity and future economic capacity from July 1992 should also not be disturbed. There was an additional argument advanced to the effect that his Honour accepted that for the five years prior to 1982 the effect of any pre-existing degenerative change or traumatic change which was to be found in the spine of the appellant had been asymptomatic in the sense that it produced no pain. The argument was thus put that it should be accepted as a question of fact that by the date of the accident any pre-existing condition had cured. On the basis of the evidence of the doctors, to which I have referred, it is my view that argument is not sustainable. There remains the question of general damages. General damages are as always a question of judgment. The appellant worked for some couple of years after the accident in the period in respect of which he is entitled to receive general damages. Undoubtedly, on evidence accepted by his Honour and the clear medical evidence, there were overlapping circumstances being sequelae of the motor vehicle accident and sequelae of the pre-existing condition. The extent to which the appellant suffered pain and inconvenience depends to some extent but not entirely upon the extent to which his Honour accepted the appellant as a witness of truth. His Honour was not prepared to make a finding that the appellant lied. Having said that, it is clear that his Honour had significant reservations upon proper grounds about the truthfulness of the appellant. His Honour was thus entitled to weigh not just the overlapping of the motor vehicle accident sequelae with those of the pre-existing injuries but also to determine his impression of the appellant and his truthfulness in relation to the extent of pain and inconvenience which the appellant suffered in the period up to 1992. The appellant's wife gave evidence which was unchallenged which indicated that the appellant did have headaches and some change of character in the sense that he became more isolated and that there was an effect upon his marital relationship with his wife. Nonetheless in my view the amount awarded to the appellant of $40,000 for general damages is within the range. For my part, I would not disturb that finding. The orders that I would propose would be that the appeal be dismissed with costs. Kirby P I am grateful to Cole JA, who has set out the facts in this case. I accept his Honour's statement of the facts. His Honour has also recounted what were, in essence, the three arguments that were pressed by the counsel for the appellant. I accept, in the terms that his Honour has explained, the way in which the Court should resolve the first two of the appellant's arguments. For the reasons which Cole JA has given, I would also dismiss those arguments. 4 UNREPORTED JUDGMENTS That leaves the remaining third argument. Thus concerned the question of the alleged inadequacy of the general damages of $40,000. Donovan AJ relevantly dealt with this matter in these terms: "Tn accordance with the findings that I have made I consider that the plaintiff is entitled to general damages of $40,000 together with interest on the whole of that amount because I concluded that the condition has, by this time, ceased. In arriving at the sum of $40,000 for general damages, I take into account that the plaintiff remained at work doing heavy duties for at least 12 to 18 months and thereafter his condition worsened. The condition gradually became more attributable to the pre-existing condition. I also believe the plaintiff was a little more active than he was prepared to admit. Interest at 4 percent for the whole of period is $19,200. This rate is accepted by the parties as appropriate." The problem which was presented to his Honour was very much one of disentangling the complaints of disabilities made by the appellant as between a found pre-existing condition and the consequences of the subject accident on 2 August 1982. This was not an easy task. However, in respect of it, his Honour had the assistance of the former wife of the appellant, Ms Lorraine Small. She gave evidence that she had married the appellant in 1957. They had four daughters. Soon after the marriage commenced the appellant had begun his service with the Australian Army. He remained in that service until December 1977 by which time he had reached the rank of Warrant Officer Class 2. Ms Small was able to give evidence concerning the condition of the appellant both before the accident, in August 1982, and after. She described the position before the accident. She said that, so far as she was aware the only health problems of significance which had presented to the appellant were the tonsillitis and "having his piles done". She described what she said was a very happy relationship she had enjoyed with the appellant. This she contrasted with the position as it appeared after the subject accident. The relevant evidence on this point appears in the following passages: "Q. In that period of a little less than five years between the time of his discharge from the Army in 1977 and the motor vehicle accident in 1982, did he have the same general disposition and outlook as he had with you in the years prior? A. From then until the accident? Q. Yes? A. Yes. Q. He has told us of his hobby of showing dogs. Did you participate in that at all? A. I went with him but he did all the showing, grooming. I went with him to the dog shows, yes but he did all the showing. He was classed as a top handler. Q. Did that entail you travelling interstate? A. Yes, we went to South Australia when we lived in Victoria. We went to South Australia Queensland and New South Wales. Q. When you say we, do you mean you went with him on each of those occasions? A. Always. Q. Did you enjoy that or did you regard that as a wifely duty? A. I loved it. I went with him and I enjoyed it. Q. We have heard some detail about the accident. Tell us about how he related to you in the first several years after the accident and how he appeared to you? URJ SMALL v KUCLKAKYUZ (Kirby P) 5 A. Well, he gradually grew, well he got pain - I could see that and he was getting headaches all the time and everything like that and he was getting depressed. After, I don't know how long after it was, he started getting depressed because he could not do things that he used to do and he would get frustrated and moody. He tried to do everything and he got that depressed he took me right down with him and we lost all our friends and everything like that because we would take them out and we will no sooner get there then he would want to go home again. Q. Can you put a time frame on that? The accident happened in August 1982. Did this behaviour pattern commence shortly after or some time after the accident? A. I'm not sure. Q. Did it become progressively worse or was it a consistent pattern? A. Oh, it got worse. He was like a hermit. I started going out of the house myself." After leaving the appellant, Ms Small took up residence with her daughter in Queensland. She was there at the time she gave evidence. She went on to describe, by way of contrast, the position of the appellant after the accident and the impact of the accident upon their relationship: "MR GRIEVE: Q. Did you remain living with your husband as man and wife up to the time you went to Queensland or was there a separation? A. We were in separate beds from just not long after the accident. Q. How long after the accident? A. Within a year I'd say. Q. Why was it that you decided you would cease sleeping with the plaintiff? OBJECTION; PRESSED; ALLOWED. Q. Can you recall the question? A. Yes, because he was restless and walking around at night time and, you know, I couldn't get a full night's sleep or anything like that, and several times he used to, you know, move his arms to get feeling in his arms and I woke up with a black eye and everything. After that I went into another room. Q. To all intents and purpose did your sex life together cease at that time? A. Just about, yes." There was no cross-examination of the evidence of Ms Small. As the marital relationship between Ms Small and the appellant had been terminated, There is no apparent reason why she should have distorted the evidence which she gave. She went on, before concluding her evidence, to describe the complaints of pain which the appellant made to her and his resort to analgesics. Donovan JA did not express any reservation about Ms Small's evidence. I see no reason why this Court cannot proceed to accept it, as apparently his Honour did. It sustains the complains which the appellant made of the disability which he suffered after the subject accident. It does not of course prove their precise duration. No does it prove the intensity of those complaints. But it suggests, as do the nature of the soft tissue injuries which form the premises upon which his Honour's judgment is based, the genuineness of the continuing complaints of pain of which the appellant gave testimony. This was pain and aching in the neck on both sides but more particularly the right and radiating around the throat, stiffness of the neck, restriction of movement, tenderness, occipital headaches, interference in ability to perform physical exercise and to move about with ease, difficulty in driving or walking and difficulty upon any physical exertion, pain in the shoulders, arm, interference with sleep patterns, reduction in the capacity to 6 UNREPORTED JUDGMENTS engage in sport and recreation including in his hobby with dogs, interference with domestic and social activities, anxiety state and disturbance of the marital relationship. Donovan AJ, who had the primary responsibility of determining the general damages that were appropriate in this case, concluded that the sum of $40,000 was adequate. I have every respect for the primary judge's right to conclude what he considers to be the appropriate sum. However, the law has provided the appellant with the right to seek a reconsideration of that sum by an appeal by re-hearing in this Court. That is a right which the appellant has invoked. This Court is then subject to a number of restraints. The first is that it cannot, except in defined circumstances, differs from conclusions which rest upon advantages which the primary judge had in deciding conflicting issues of credit. This consideration must be accepted to have played a little part in the determination of the duration and intensity of the disabilities of which the appellant complained. His Honour, indeed, said this in the passage which I have extracted. However, this does not remove the fact that the judge based his conclusion upon a finding that the subject accident had a continuing consequence for 10 years. This was from 2 August 1982 until 1 July 1992. 10 years, a decade in the life of the appellant, is a substantial time. In that time, the interference in his ordinary life, as described by his former wife was in my view most substantial. I have concluded that $40,000 is not adequate. I am of the view that $60,000 is the appropriate middle of the range sum. I would make orders which substitute that sum for the sum which his Honour allowed. I said that there were a number of inhibitions upon this Court in interfering with the judgment. A further inhibition is that the Court will not disturb the judgment simply because it disagrees with the judgment of the primary judge. To do this would be to invite unwarranted delays and run up the costs of litigation disproportionately to the matter which is found to be at stake. I take that consideration into account in this appeal. However, when one assesses, as I believe I must, the addition of the interest component upon the additional $20,000 and view the 50 percent under-statement, which I would take his Honour's assessment to constitute, the final differential is one significant to a person in a position of the appellant. For the reasons which were given by the primary judge. I would allow interest on the whole of the sum. This would mean that the appellant would be entitled to interest on $20,000 being the difference between the amount allowed by his Honour and the amount which I have allowed for general damages. I therefore conclude that this is not impermissible tinkering at the margins. It is giving effect to the obligation to this Court to perform its own function in the appeal which the appellant has brought to it. I favour the following orders: 1. Allow the appeal; 2. Set aside the judgment of Donovan JA; 3. In lieu thereof substitute a judgment taking effect from the date of his Honour's judgment in which the component for general damages is increased by $20,000. It should be left to the parties to calculate the interest on past economic loss. 4. I would require the parties within 14 days to bring in their minutes to give effect to the orders which I would propose consequential upon allowing the appeal; and, 5. The respondent should pay the appellant's costs. I would reserve any other orders that are appropriate. URJ SMALL v KUCLKAKYUZ (Rolfe AJA) 7 Rolfe AJA I agree with the statement of facts and the reasons of Cole JA, which I gratefully adopt. Whilst I consider that the figure of $40,000 for general damages is towards the lower end of the permissible range as disclosed by the evidence, I am satisfied that it is within the range and hence is not so low as to call for appellate intervention. Accordingly, I agree with the reasons and orders proposed by Cole JA. Kirby P: The orders of the Court, accordingly, are, by majority, that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: DE Grieve QC/ AJ Black Instructed by: Sharah Henville Counsel for the Respondent: GF Butler Instructed by: GM Meadows