STANCEVSKI v EPSTEIN & CO LIMITED T/as ZENITH HARDWARE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER, COLE JJA and Simos AJA 29 August 1996 [1996] NSWCA 486 PERSONAL INJURY — workplace injury — assessment of damages — evidence — findings of trial Judge should not be disturbed Sheller JA. The appellant appeals from a decision of his Honour Judge Patton, given on 4 December 1995. The appellant sued the respondent for a work place injury which took place on 18 January 1985. Liability was admitted. The appellant was born on 6 March 1953 in Macedonia, formerly part of 'Yugoslavia, and arrived in Australia in January 1980. His Honour awarded the total damages of $42,572.90 comprising general damages of $30,000, interest of $12,000, $7,800 for past economic loss, interest at $7,800 and out-of-pocketexpenses of $6,500. The amount of damages awarded gave credit for $21,527.03 for worker's compensation benefits. His Honour, in a very careful judgment, described the nature of the work that the respondent employed the appellant to do and said it was very light work. The accident involved the appellant, while working, being struck by a light fitting dislodged by a falling pallet or box. The appellant may have been unconscious for a short period of time before the ambulance arrived. The nature of the complaints that the appellant made after this accident were set out in a report of the treating general practitioner, Dr Gavrilovic, which his Honour quoted and which it is unnecessary in this judgment to repeat. Suffice it to say that the plaintiff sustained a 5 centimetre long laceration over the right frontal region of his head, abrasion lesions over the right forehead and left forearm. An x-ray of the cervical spine showed C4/5, C5/6 disc spaces slightly narrowed with mild associated spondylosis and encroachment of the exit canals on the left of both levels. The appellant was subsequently seen by Dr Segelov who reported, amongst other things, that a cerebral CT scan was performed and reported normal. He underwent some physiotherapy and later in 1986 Dr Pillemer, an orthopaedic surgeon, performed manipulation of the cervical spine. The treating doctor saidthat none of these treatments was successful and the appellant left work in 1986 because of the severity of his headache and pain in his neck. The doctor reported that at some time in 1989 he also developed back pain. Subsequently he suffered from depression and had some psychiatric treatment. The appellant was able to return to work on 5 July 1985 and was given the same light duties as he had performed before. About 6 months later in January 1986 he left work. His Honour observed that during this period of employment the employer went out of his way to help the appellant. The appellant claimed that he had never been able to do his previous work again. Since 1986 he had done nothing. He had received some psychiatric treatment and claimed that his symptoms were unchanged. Before the accident he claimed that he worked a normal five day week and in addition some overtime, and overtime on Saturdays. 2 UNREPORTED JUDGMENTS Having seen the appellant in the witness box and a video tape which depicted episodes involving the appellant on five separate dates, his Honour said that he had no doubt that the appellant was grossly exaggerating any restriction upon his ability to turn his head without moving his upper body. His Honour said: 'It is, I think, likely that this exaggeration exhibited both to examining doctors and to the Court was deliberate and it at the least, reflects heavily upon his credibility.' His Honour also had reservations about the evidence that wasgiven by the appellant's wife. His Honour referred to the treatment that the appellant had received from a succession of medical practitioners who variously prescribed medication, carried out manipulation and arranged physiotherapy. None of this, according to the appellant, provided any lasting relief. His Honour referred to the evidence in report form of Dr John Segelov, a neurosurgeon, who first saw the appellant in 1985 and Dr Pillemer who saw him in 1985 and 1986. His Honour said that reports prepared by Dr Bannister lacked objectivity and were of little assistance in resolving the issues presented for determination. His Honour referred in some detail to reports of a consulting psychiatrist, Dr Metcalfe, and Dr Ellis, who saw the appellant in 1993. He also referred to reports that had been made by Dr Kecmanovic. His Honour then turned to the medical reports which had been tendered on behalf of the respondent and said their reports painted a rather different picture of the state of the appellant's health than the reports tendered in his case. His Honour quoted at length from the reports of Dr Wearne, Dr Lawson and Dr Millions. Each of these doctors formed the opinion that at some period, say up to six months after the date of injury, the appellant was fit to return to work. Dr Wearne observed in his report of 9 January 1987 that the appellant was exaggerating his symptoms, falsifying his physical signs. His Honour set out the relevant passages of these reports and I do not regard it as necessary to repeat them in this judgment. His Honour then said, Pursuant to my finding that the plaintiff grossly exaggerated his complaints and disabilities to his own medical practitioners as well as to the court, I do not think that Ishould attach much weight to the opinions of the plaintiff's doctors, as in my view they were necessarily and substantially based upon false premises. Rather to the extent of conflict I prefer the opinions of the practitioners whose reports were tendered in the defendant's case. Upon that basis I find that the subject accident temporarily aggravated a pre-existing cervical spine lesion, that such aggravation continued for no more than twelve months, and that such pain and discomfort as the plaintiff has suffered since is not causally connected to the accident but relates to undoubted degenerative changes in the plaintiff's cervical and lumbar spines. I do not accept the plaintiff's evidence that he suffered back pain immediately after the accident. Having regard to the fact that a complaint of such pain was apparently not made to any medical practitioner before the plaintiff saw Dr Wearne for the defendant in 1987, I am not satisfied on the probabilities that the plaintiff's complaint of back pain and disability is causally related to the subject accident. Despite the plaintiff's highly commendable pre-accident work record, the preponderance of the evidence in this case leads me to the conclusion that at least so far as the sequelae of the subject accident are concerned the plaintiff has been fit for his pre-accident employment since July 1986 and he actually returned to work.' URJSTANCEVSKI v EPSTEIN & CO LIMITED T/as ZENITH HARDWARE (Sheller JA) 3 It was accepted by the parties that a reading of the whole of the judgment demonstrated that the last reference to 1986 was a mistake and his Honour intended to say 1985. On the basis of these findings, his Honour assessed the damages. Included amongst those damages was an amount of $7,800 for past economic loss at$300 net per week for 26 weeks. This is clearly based upon the conclusion that the appellant was fit for work in July 1985. A claim for out-of-pocket expenses was made in a sum exceeding $19,000. As I have said his Honour allowed $6,500. That reduction was also clearly based upon his Honour's view of the limit of incapacity. The appellant challenged his Honour's conclusions in the following way. First it was submitted that his Honour was not, on the evidence, entitled to treat the appellant's evidence about the restriction upon his ability to turn his head, as grossly exaggerated. In the passage that I have quoted, his Honour said of the video that it showed the appellant turning his head without apparent restriction. All the medical evidence and the evidence that the appellant gave at the trial demonstrated that the appellant had either a severe or complete restriction as to the extent of movement or at least some substantial restriction. Indeed the appellant's medical evidence seems to proceed on that basis. Quite clearly that was inconsistent with what his Honour had seen on the video. His Honour, for the reasons that he gave, came to the conclusion that the appellant was grossly exaggerating this restriction. In my opinion it was entirely open for his Honour to do so. This basis for attacking his conclusion, in my opinion, fails. In the appellant's submissions reliance was placed upon what both Dr Segelov and Dr Pillemer said about the appellant's condition. In particular, in a passagewhich his Honour quoted in a report of 15 September 1992, Dr Segelov said that in view of the appellant's young age it seemed that the changes at the C5/6 level were not simply those due to degenerative spondylosis but had been induced by trauma when the patient was struck on the head in 1985 and by that stage had progressed to the point where it was likely he would need surgical treatment. Dr Segelov opined that even with surgery the patient would not return to employment requiring lifting or working with objects above head height or sitting for prolonged periods with his head forwards. The patient appeared to have a permanent impairment of his neck at the order of 25 percent. In terms of the need for surgical intervention, Dr Segelov's view seems to have changed by the time of a later report of 7 November 1995. However his Honour had evidence from the defendant's doctors upon which he concluded that the subject accident temporarily aggravated a pre-existing cervical spine lesion. As in many of these cases, no medical practitioner gave oral evidence. His Honour was required to consider their reports, the oral evidence that was before him and come to the conclusions that he considered appropriate. In my opinion, in that situation, it is not possible on an appeal of this sort for the Court to intervene and overrule his Honour's preference for the appellant'smedical opinion rather than the respondent's. The respondent's medical opinion clearly supported the conclusion to which his Honour came. Two final submissions were made as to the quantification of the amount for past economic loss and the quantification of out-of-pockets. However both those submissions fail with the conclusion that the finding of his Honour that the appellant was fit for his pre-accident employment since July 1985 should not be disturbed. Accordingly those grounds also fail. 4 UNREPORTED JUDGMENTS In my opinion the appellant has failed in accordance with the principles set out in cases such as Devries & Anor v Australian National Railways Commission & Anor (1992) 177 CLR 472, to show any basis upon which this Court could interfere with his Honour's findings and conclusions. Accordingly, in my opinion the appeal should be dismissed with costs. Cole JA. I agree. I would add only two things, first neither counsel asked this Court to view the video to which reference has been made. Second, Mr Andrews, counsel for the appellant, accepted that the description that the trial Judge gave of what he saw on the video was an accurate description of what appears on the video. I agree with the orders proposed. Simos AJA. I agree with Mr Justice Sheller. Sheller JA. The order of the Court will be the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: DE Andrews Solicitors for the appellant: George Traikovitch and Co Counsel for the respondent: RS McIlwaine Solicitors for the respondent: Hunt and Hunt