BOSEVSKI v BAGHDAI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, COLE JA and BEAZLEY JA 13 May 1996 [1996] NSWCA 56 MOTOR VEHICLE ACCIDENTS — assessment of impairment — future economic loss — loss of capacity productive of economic loss. The appellant was injured in a motor vehicle accident on 13 September 1993 and was awarded $22,027.25 comprising amounts for non-economic loss and out-of-pocket expenses. The appellant contended that the finding with respect to non-economic loss of 16% impairment was appealably inadequate and should have been assessed at 20%. It was also argued that an award should have been made for future economic loss. The appellant had not worked in the four years prior to the injury and the two years since. HELD, dismissing the appeal: (1) The assessment of the appellant's inconsistent physical and verbal responses to medical examination was for the trial judge; (2) There was medical evidence supporting the assessment of impairment and the existence of contrary evidence did not establish error; (3) There was no evidence led to suggest that the diminished income earning capacity would have resulted in economic loss: Graham v Baker (1961) 106 CLR 340 followed. Handley JA. This is a plaintiff's appeal from the decision of McLachlan DCJ given on 11 August 1995 in which he assessed her injuries under the Motor Accidents Act arising from an accident which occurred on 13 September 1993. His Honour found a verdict for the plaintiff for $22,027.25, comprising an award for non-economic loss, together with some out-of-pocket expenses. His Honour declined to award anything in respect of economic loss past or future. Mr Murr, who appeared for the appellant and said everything that could be said on her behalf, challenged his Honour's award on non-economic loss as appealably inadequate. His Honour's assessment was based on a finding of a 16% impairment. Mr Murr suggested that an appropriate award which should be substituted by this Court would be based on an assessment of a 20% impairment. The trial judge found that the appellant had given inconsistent reports as to her symptoms, and that her complaints had not beenreported consistently by the doctors who had examined her, either on her own behalf or on behalf of the defendant. There was a body of medical evidence in support of the plaintiff's case which would have justified a higher award than that made by his Honour. On the other hand there was medical evidence, particularly in the report of Dr Matheson, which fully supported his Honour's conclusion. The only oral evidence given at the trial was given by the appellant herself. All the medical evidence was given in the form of reports. On the day of the accident the appellant presented herself to Bankstown Hospital complaining of pain in the head and neck. On physical examination, tenderness was observed in the lower neck region and in the L2-L3 region of the spine. X-rays were carried out to the cervical and lumbar spine. No injury or abnormality was detected in the X-ray of the cervical spine. Congenital abnormalities were noted in the X-ray of the lumbar spine together with some 2 UNREPORTED JUDGMENTS evidence of degenerative changes. The latter of course could account for the tenderness observed at the L2-L3 region on examination. Dr Matheson expressed the view, based on observations recorded in his report of the results of his examination of the plaintiff, that she was exaggerating and that there was no physical basis for her complaints of pain and disability and that such as he was able to find were not related to her motor vehicle accident. There was no objective basis for the appellant's complaints of pain and disability detectable either on X-ray or, more importantly, on CAT scan examination. To a very substantial extent the acceptance of the appellant's complaints were dependent upon the accuracy and reliability of her complaints and her responses to medical examination. It is apparent upon considering the medical reports, and I instance Dr Mahoney of 29 March 1994, 8 December 1994, Dr Deveridge of 1December 1994, Dr Bosnic of 11 April 1994, Dr Matheson of 27 October 1994 and Dr Bornstein of 17 November 1994 that the plaintiff did give inconsistent responses, verbal and physical, to examination of her spine and legs, particularly with regard to straight leg raising and back bending. In the circumstances, the medical evidence depended heavily upon the acceptance of the plaintiff's complaints of pain and disability and therefore depended very much on the trial judge's assessment of her as an accurate reporter of what she was experiencing. Since all the medical evidence was given by way of report, and since the acceptance of the plaintiff and the degree to which she was accepted, depended very much upon the trial judge's assessment of her evidence in the witness box, the appellant is in a difficult position. There was evidence both ways on the medical issues and the mere existence of evidence contrary to his Honour's findings cannot establish error. No attempt has been made to establish that his Honour erred in his assessment of the plaintiff and, as I have said, the evidence of the X-rays and of the CAT scans of 21 September 1993, 22 November 1993 and 2 December 1993 failed to reveal any objective condition which supported the plaintiff's claim to be suffering from injury-induced conditions in her back and neck. In these circumstances in my opinion the appellant's attempt to persuade this Court to find error on the basis of opinions expressed in medical reports which his Honour did not accept was doomed to failure. No error was identified or established in his Honour's fact finding leading to his conclusion that the appropriate award of non-economic loss should be based on a finding of 16 percent impairment. I would reject the first ground of challenge to his Honour's assessment. The second ground of challenge related to his Honour's refusal to award anything for past or future economic loss. The plaintiff had worked until approximately six years before trial, four years before injury, and her evidence was that she had no present intention of working again. No doctor suggested that the plaintiff was incapable of working for a living, although there was some medical support for the view that the range of tasks open to her would be restricted as the result of her accident. In the circumstances, his Honour's refusal to award anything for past economic loss to the date of trial cannot be disturbed. As to the future he said: I cannot find on the evidence that she will suffer loss in the future. URJ BOSEVSKI v BAGHDAI (Handley JA) 3 It is clear, on his Honour's findings, that the plaintiff suffered some diminution in her income-earning capacity, but it has been well-established since Graham v Baker (1961) 106 CLR 340 that loss of earning capacity without more does not sound in damages. A plaintiff must also establish that that loss of capacity is or may be productive of economic loss. The plaintiff gave no evidence to indicate either a firm or contingent intention on her part to re-enter the workforce. The past spoke for itself and she gave no evidence, as I have said, as to the existence of any intention to re-enter the workforce. The plaintiff had the onus of establishing her case and insofar as she made a claim for future economic loss, there was a total failure to lead any evidence that she would or might suffer economic loss in the future as a result of the diminution in her income-earning capacity. Not a great deal of evidence was required on this question. The plaintiff could havebeen asked the necessary questions in the course of her oral evidence. However, there was no evidence at all, as I have said. In these circumstances, his Honour cannot be criticised for deciding that the plaintiff had not established her claim for any award of damages for future economic loss. There had been, in my view, a total failure on her part and on the part of her advisers to discharge the onus of proof on this particular aspect of her claim. I would therefore propose that the appeal should be dismissed with costs. Cole JA. I agree. Beazley JA. I agree. Handley JA. The order of the Court therefore is appeal dismissed with costs. Orders accordingly. Counsel for the appellant: D H Murr Solicitors for the appellant: D Stanefska and Associates Counsel for the respondent: P Webb OC/R W C Royle Solicitors for the respondent: Abbott Tout Russell Kennedy