Pirillo v Telstra Corporation Ltd [1999] NSWCA 463

New South Wales Court of Appeal CITATION : Pirillo v Telstra Corporation Ltd [1999] NSWCA 463 FILE NUMBER(S) : CA 40153/99 HEARING DATE(S) : 23 November 1999 JUDGMENT DATE : 16 December 1999

PARTIES : Guiseppe Pirillo v Telstra Corporation Ltd JUDGMENT OF : Priestley JA at 1; Brownie AJA at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 171/98 LOWER COURT JUDICIAL OFFICER : His Honour Judge Delaney

COUNSEL : Appellant - I.D. Cullen, E. Gramelis Respondent - H. Shore SOLICITORS : Appellant - Stanger & Clarke, Newcastle Respondent - Sparke Helmore, Newcastle CATCHWORDS : Assessment of damages for personal injury DECISION : New trial limited to damages

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40153/99 DC 171/98

PRIESTLEY JA BROWNIE AJA

Thursday, 16 December 1999

PIRILLO v TELSTRA CORPORATION LIMITED

ASSESSMENT OF DAMAGES FOR PERSONAL INJURY - one aspect of damage not taken into account by trial judge - appeal court takes view that aspect should have been taken into account and of sufficient significance to warrant setting aside of judgment and reassessment of claims - appeal court not in position to reassess - new trial ordered. ORDERS 1. Judgment as to quantum set aside. 2. New trial to be held limited to damages. 3. Respondent to bear appellant's costs of appeal.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40153/99 DC 171/98

PRIESTLEY JA BROWNIE AJA

Thursday, 16 December 1999

PIRILLO v TELSTRA CORPORATION LIMITED

1 PRIESTLEY JA: Mr Pirillo as plaintiff brought an action in the District Court against Telstra Corporation Limited as defendant. His statement of claim was filed on 20 April 1998. In it he alleged that the defendant had constructed a pit in the footpath of Horsley Drive, Smithfield and that the pit had been covered with a wooden board over a defective metal plate. He further claimed that on 11 March 1997 when walking upon the wooden board it gave way without warning so that he fell into the pit and suffered injury. 2 When the case came on for hearing before his Honour Judge Delaney on 5 February 1999 the defendant admitted liability. The trial judge then asked the plaintiff's counsel what issues remained. The answer was that they were the extent of general damages, pain and suffering and the past and future economic loss. 3 Both at the time of the accident and the trial the plaintiff was self-employed as a tow truck driver. A principal part of his economic loss claim was that his ability to conduct his tow truck business was significantly impaired as a result of the accident. 4 The plaintiff's case was that when the board covering the Telstra manhole gave way his left leg went down into the hole, his left elbow was hit and he felt pain around his back and right knee, and, on the following day in his left elbow, neck and left shoulder. In support of his case written reports from six medical practitioners were tendered. Some of these reported more than once. From Dr Machart for example, an orthopaedic surgeon, who, although not the plaintiff's first treating doctor, appears to have undertaken the principal management of the treatment of the plaintiff's shoulder, there were five reports and two certificates. The defendant tendered two reports from Dr Ireland, a consulting orthopaedic surgeon. None of the medical practitioners was required to give oral evidence. 5 In the course of his review of the evidence, the trial judge said that he accepted that the plaintiff had "as a result of his fall a number of injuries to which he generally deposed". Specifically, he accepted that the plaintiff had injured his right knee, his left hip, his back and neck, and as well had an injury to his left arm which was the most serious of his injuries. He said the real issue in the case was whether or not the plaintiff had any serious problem with his knee. After consideration of the medical evidence relating to the knee, the judge commented that although the plaintiff " generally tried to give his evidence in a straightforward manner, I think that he has exaggerated his symptoms in that regard, and I do not accept that he has the extent of disability in his right knee as he has deposed. Indeed in some respects, when one looks at the evidence of the plaintiff, there is certainly a suggestion that he has tended to overstate the effect of the neck, headaches, and knee problem. This may well be because of the fact that he has had some significant difficulties with his shoulder and he has tended to concentrate, perhaps, a little more than other wise would be the case, on the nature and extent of his problems. Nevertheless I accept that he has the problems that he has with his shoulder, and that he may even need some assistance so far as his ulnar nerve is concerned. " 6 These were the only remarks made by the judge which were critical of the acceptability of the plaintiff's evidence. They were temperately expressed and not particularly unfavourable to the plaintiff, but undoubtedly led the judge to the conclusion that the effect on the plaintiff of his injuries was less serious than the plaintiff claimed. 7 Immediately after the passage set out in par 5, the trial judge continued by dealing with a particular matter on which the plaintiff relied and in respect of which the trial judge held against him. Because this passage became the of focus of the principal submissions in the appeal I set it out in full: " Mr Cullen, on behalf of the plaintiff, submitted that I should be satisfied that he has a number of other problems. He referred to the fact that the plaintiff had been referred to Dr Leslie. Dr Leslie provided a report of 2 September 1998. It is necessary for me to refer to that report because of the allegations made. The plaintiff was referred to Dr Leslie by Dr Machart. Dr Leslie obtained a history of the plaintiff's fall in March of 1997. He obtained a history of problems with the left shoulder and pains emanating from his neck to the left scapula and down the left arm and sometimes into the hand. He noted that the plaintiff's shoulder appeared to be fixed with recent arthroscopic surgery but that he still had symptoms in the neck, scapula and arm. Dr Leslie noted that on examination, to his mind, there was no obvious muscle wasting. This is somewhat at odds with other observations. He noted, however, that when the plaintiff had his arms above his head there was a clamping down of both radial pulses. He said this could occur in normal people but it is not necessarily pathological. He thought, nevertheless, that on all the evidence he had a thoracic outlet compression. This was reinforced by the fact that a cervical spine and CAT scan of the thoracic spine show abnormality. Dr Leslie, however, does not appear to have ever been asked for any evidence of a causal connection between that thoracic outlet compression and the accident. Accordingly, notwithstanding the fact that the plaintiff had the injuries which I find he has, I am not satisfied on the balance of probabilities that the condition referred to by Dr Leslie was causally connected to this accident and I make no allowance for it in considering either his claim for general damages, or his claim for past and future economic loss. " 8 It seems clear that the trial judge's only reason for not accepting this part of the plaintiff's claim was his opinion about causality. He did not question the accuracy of Dr Leslie's diagnosis, nor does that seem to have been in issue at the trial. 9 Once he had disposed of this part of the plaintiff's claim, the judge immediately proceeded to deal with general damages: " All in all, having accepted the degree of his problems as I do, I think it is appropriate to assess general damages for the plaintiff in the sum of $45,000 ." 10 Next, the trial judge went on to deal with what he said was the biggest part of the plaintiff's claim, which related to future treatment and economic loss. Nothing in the judge's discussion of these matters was critical of the plaintiff's credibility. Stated very broadly, the principal adverse findings made by the trial judge in this part of his reasons were that he was not satisfied that any significant pathology remained in the plaintiff's knee other than some pain and discomfort particularly on kneeling and that accounting evidence called to support the plaintiff's claims for economic loss was unsatisfactory. The trial judge was satisfied however that the plaintiff's earning capacity had been reduced and that he had a permanent loss of part of the use of his arm. He concluded that he should allow an amount of $50,000 for future economic loss as a cushion. He allowed for past economic loss an amount of $20,000 for substitute labour. He allowed $7,000 for loss of business opportunity and agreed out of pocket expenses of $24,158. These amounts, together with interest, totalled $156,765. Judgment was accordingly given for that amount, with costs. 11 In his notice of appeal the plaintiff raised a number of matters. The first was that the trial judge was wrong in finding that the plaintiff's condition of thoracic outlet compression or traumatic cervical rib syndrome was not on the balance of probabilities causally connected to the accident. The next was that his Honour had been in error in not accepting the plaintiff's evidence concerning his right knee. It was submitted that in light of the documentary materials, the way the case was conducted and the plaintiff's evidence itself, there was no basis for the judge to have made his mildly sceptical observations. There were then grounds of appeal about what was said to be the inadequacy of the sum awarded for general damages, the amount of $50,000 assessed as a cushion for future loss of earning capacity, for future treatment costs and the calculation of interest on past economic loss. 12 The court heard detailed argument about the first head of the appeal. The court is of opinion that that argument should be upheld. 13 The reasons can be explained primarily by reference to the reports of Dr Machart and the report of Dr Leslie. 14 In a report dated 22 September 1998 Dr Machart recorded that he first saw the plaintiff on 13 June 1997. It is apparent from his narration in the report of 22 September 1998 that in his first examination of the plaintiff he was concerned (inter alia) to see whether there was a connection between the plaintiff's then condition and the accident of 11 March 1997. Dr Machart gave particular attention to the condition of the plaintiff's left shoulder. His initial opinion was that the plaintiff had instability secondary to labral tear or a detachment and he recommended MRI. He reviewed the MRI on 27 June 1997. It showed "SLAP lesion". Dr Machart recommended arthroscopic repair. 15 The plaintiff did not have the arthroscopic repair immediately. 16 Dr Machart examined him again on 5 June 1998. Dr Machart's findings at that stage were as follows: " He had pain in a rather wide ranging area of his left arm and this included the base of the neck, the parascapular region, the trapezial ridge, the point of the elbow as well down the arm and forearm towards the wrist. There was no evidence of muscle wasting and his ulnar nerve at the elbow was not tender. I noted that there was obliteration of the radial pulse with the abducted and external rotated and I thought that this represented cervical rib syndrome symptom. At this stage I recommended arthroscopic repair of the 'SLAP' lesion and further review by a vascular surgeon with regards to his cervical rib. " (Blue AB 12) 17 The arthroscopic repair to the shoulder was carried out on 17 June 1998 by Dr Machart. Dr Machart examined the plaintiff in review of the shoulder operation on 25 August 1998. At that time the shoulder had healed. The review he had recommended by a vascular surgeon was carried out by Dr G. Leslie on 2 September 1998. Dr Leslie's letter-report of the same day was as follows: " Thank you for asking me to see Mr Pirillo who is a rather difficult diagnostic problem. I note he fell into a manhole in March of '97. He has had considerable problems with his left shoulder and also with pains emanating from his neck to the left scapula and down the left arm and sometimes into the hand. His shoulder appears to have been fixed with recent arthroscopic surgery but he still has symptoms in the neck, scapula and arm. These are most marked when using his arm. On examination today there is no obvious muscle wasting, however with his arms above his head there is a clamping down of both radial pulses. This can occur in normal people and is not necessary pathological. There is no real tenderness over his brachial plexus but he does get pain in the arm when exercising above his head. I feel all in all he has evidence of thoracic outlet compression. This is reinforced by the fact that his cervical spine and CAT Scan of the thoracic spine shows in abnormality. He wishes something done about this as he is unable to work with the present symptoms. I have explained to him that decompression of the thoracic outlet would involve excision of scalenus anterior and scalenus medius muscles and sometimes removal of the first rib. this should get a 50% improvement in symptoms. I have asked him not to make a decision on this but to think about it and I will have further talk with him in a couple of weeks time. I will communicate with you after I see him next. "