KEANE and ANOR v GELESKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and COLE JJA 25 June 1996, 25 June 1996 [1996] NSWCA 296 WORKERS COMPENSATION — INJURY CAUSING AGGRAVATION OF DEGENERATIVE CONDITION — WHETHER EVIDENCE COULD SUPPORT JUDGMENT Clarke JA This is an appeal from the judgment of Ward J given on 10 September 1992 in favour of the respondent, who was the plaintiff at the trial, in the sum of $64,365.55. The trial was complicated by the fact that on 28 November 1988 Commissioner Ferris in the Compensation Court made a finding that the appellant had suffered an aggravation of a degenerative condition as a result of a work injury on 1 March 1984, and that aggravation had ceased in early 1987. As a consequence his Honour, who found a verdict in favour of the respondent against the appellant in respect of that work injury on 1 March 1984 proceeded on the basis that in awarding damages he was estopped from concluding that the aggravation had not ceased in 1987. Nonetheless his Honour expressed the view that if, following the award, the aggravation had re-asserted itself or caused continuing symptoms which were not incapacitating in the narrow sense it was open to him to award damages to the respondent for those effects. The action and the appeal were also complicated by the fact that the District Court limit at the relevant time was $100,000 and his Honour's actual award was significantly in excess of that amount. Because he was obliged, by law, to allow only the maximum he did so and deducted from that payments already made and reached his verdict figure. If the appellant succeeds in the appeal the respondent would be entitled, after the deduction of payments of compensation, to a figure of $52,179. It will be seen therefore that this appeal involves the very small amount of about $12,000. In the circumstances I do not propose to descend to the detail to which I might otherwise resort. The appeal is not entirely easy because of the manner in which his Honour has expressed his reasons. The lack of clarity is most evident in two areas. The first, where his Honour discusses his acceptance of the evidence of Dr Millons and Dr Bodel and the second where his Honour explains his view that the aggravation has led to the continuation of the non-organic condition which his Honour believed had compounded the respondent's problems. I would have to say that there is much in favour of the appellant's proposition that there is little evidence to support the judgment as I would understand his Honour's reasoning. However, there is another interpretation, which was put by counsel for the respondent and it was this, the aggravation to her degenerative condition suffered by the respondent in 1984 caused her to become incapacitated and lose her job. She became depressed, upset and anxious and the continuation of the pain and the fact that she could not get a job in the future led to the 2 UNREPORTED JUDGMENTS functional condition, if I could call it that, continuing on well past the time when the organic effects of the aggravation had ceased. This is, it seems to me, a rational explanation for the respondent's continuing complaints and although his Honour, as I read the judgment, did not quite put his reasons in that way, I think myself that that is probably what he meant and that the judgment is supportable on that basis. Even if I be wrong in that view it is clear that the findings, both of his Honour and Commissioner Ferris did not completely destroy the respondent's claim for general damages after 1988 and it seems to me all that the Commissioner decided was that she was not incapacitated from work after early 1987 and his Honour reached, in broad terms, a similar conclusion. That says nothing, however, about the suffering of pain which was of such a nature that it didn't incapacitate the respondent from work. His Honour made a relatively modest award for future general damages of $15,000 and in my view there is no basis to be found for refusing the respondent that allowance. If that is right then the reduction of about $12,000 which is made on the premise that economic loss for the future should not be allowed would not lead to a reduction of the verdict. There are therefore two reasons why, in my opinion, this appeal should be dismissed and I will therefore propose that the appeal be dismissed with costs. Cole JA I agree. Sheller JA I also agree. The order of the Court is the appeal is dismissed with costs. I should also add however that the cross-appeal was not persisted in and that should also be dismissed with costs. Appeal dismissed with costs. Cross-appeal was not persisted and therefore dismissed with costs. Counsel for the appellant: P Morris Solicitors for the appellant: Moray and Agnew Counsel for the respondent: J Keesing Solicitors for the respondent: Radin and Associates, FairField