New South Wales Court of Appeal CITATION : Rusu v Woolworths Ltd [2002] NSWCA 72 FILE NUMBER(S) : CA 40217/01 HEARING DATE(S) : 11 March 2002 JUDGMENT DATE : 11 March 2002 PARTIES : Cornell Rusu - Appellant Woolworths Ltd - Defendant JUDGMENT OF : Stein JA at 19; Giles JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 7472/99 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER : COUNSEL : S Norton SC & A Healey - Appellant G M Watson - Respondent SOLICITORS : Brydens Law Office, Liverpool - Appellant Ebsworth & Ebsworth - Respondent CATCHWORDS : NEGLIGENCE - damages - global award of economic loss as part of general damages - whether inadequate - no question of principle. CASES CITED: Dessent v Commonwealth of Australia (1977) 13 ALR 437; Government Insurance Office of NSW v Bailey (1992) 27 NSWR 304. DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40217/01 Dc 7472/92 STEIN JA GILES JA Monday 11 March 2002 RUSU v WOOLWORTHS LTD Judgment 1 GILES JA: The appellant was shopping in one of the respondent's stores on 22 November 1996. He was squatting on his haunches looking at merchandise. A store employee pushed a loaded metal trolley from the storeroom area into the area where the appellant was squatting. He pushed it through the doorway without care for anyone on the other side of the doors, and the trolley struck the appellant on the left side of his head. The respondent was found to have been negligent and the appellant was awarded damages of $58,476. He appealed in relation to the assessment of his damages. 2 The grounds of appeal in the notice of appeal were as follows: "1. His Honour erred in making a global assessment of the appellant's loss and including past and future economic loss in the award for past and future general damages. 2. On the finding of injury made by his Honour, the appellant was entitled to damages for loss of economic capacity past and future, general damages and expenses past and future. 3. On finding [sic] of injury made by his Honour the allowance for future economic loss should have been substantial and his Honour erred in failing to assess the appellant's percentage loss of earning capacity. 4. His Honour's finding that the appellant's condition was not permanent was against the evidence and the weight of the evidence. 5. His Honour erred in reducing the amount allowed for future expenses on a basis that the appellant may be entitled to treatment without charge. 6. His Honour's assessment of general damages was below the limits of sound discretionary judgment." 3 The only substantive order sought in the notice of appeal was that the verdict and judgment below be set aside. Although there was a conventional reference to such further orders as the Court deems fit, it was left unclear whether the appellant wanted a new trial or a reassessment on appeal, although I think the latter became plain enough. It does not matter because, for the reasons which I now give, in my opinion the appeal should be dismissed with costs. 4 The grounds of appeal were in some respects not well framed. Ground 5 proceeded on a misreading of the trial judge's reasons, as I think became accepted, although in its place an argument was put that there had been an error in failing to allow for future physiotherapy expenses. The appellant was entitled to the damages identified in ground 2, and he was awarded them, so ground 2 meant little: he said that he was not awarded enough. The essential complaints were three. The first was that there had been what was called a global assessment of non-economic loss and economic loss (see ground 1 and in part ground 3). The second was that the assessment of non-economic loss should have been greater than whatever its component was of the global assessment (see in part ground 4 and ground 6). The third was that the assessment of economic loss should have been greater than whatever its component of the global assessment was (see ground 3 and in part ground 4). To this may be added the new version of ground 5. 5 The first complaint rather fell away in the course of the appeal. It was not submitted that as a matter of law the trial judge was obliged to make separate assessments of non-economic loss and past and future economic loss. Rather, it was said that as a matter of good practice that should have been done. The appellant's submissions referred to Dessent v Commonwealth of Australia (1977) 13 ALR 437, particularly at 447. The same point has been made in, for example, the judgment of Kirby P in Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 at 318, but it is of interest that in that case, in which the trial judge made a global award including a cushion for future economic loss in the general damages, the other two members of the Court, Clarke JA and Hope AJA, saw no problem in his doing so. 6 The question therefore was whether in the present case the global award made by the trial judge was in an inappropriate sum. So in the hearing of the appeal attention was concentrated on the other two complaints to which I have referred. 7 The trial judge was unimpressed by the appellant as a witness. He accepted that the appellant was struck by the trolley, but did not accept the appellant's evidence of unconsciousness and then considerable pain and thereafter continuing pain, or his evidence of episodes of dizziness, memory deficiency, inability to stand or drive for long periods, impairment of function such that he had difficulty in peeling an apple, and other such matters. The trial judge said that he had "no doubt that the appellant exaggerated his complaints and symptoms to a major degree". 8 The trial judge had the usual plethora of medical reports and only one live medical witness. He said that the reports provided contradictory opinions as to the degree, extent and origin of the appellant's complaints, and from a reading of them he was right. The weight of the reports supported the trial judge's opinion that there was no organic basis for continuing injury or disability, and as the one live witness Dr Conrad agreed that the doctors were dependent on what the appellant told them. This made it particularly significant that the appellant told different things to different doctors and did not complain to many of them of the matters he put forward in his own evidence. Dr Conrad was asked to assume some occasions otherwise established on which complaints were not made which one would have expected if his opinion were correct, and he agreed that the absence of complaint was significant but suggested that some people were stoics and that the appellant was a poor communicator. Referring to this, the trial judge said that having observed the appellant in the witness box he saw nothing to make him believe that the appellant was stoical. 9 Thus there was not an encouraging basis for substantial damages. With more particular reference to economic loss, the appellant had an existing disability. He had suffered a back injury whilst lifting a box in the course of his employment in 1990, and in April 1992, when performing light duties, he had suffered an aggravation to that condition. He was retrenched early in May 1992, and apart from a period of temporary employment for some months with a council he had only had what the trial judge described as "occasional stints of three or four days drawing plans for minor additions to houses and garages for friends or acquaintances and a minor painting job or two". 10 The appellant was born in July 1947, and thus was 49 at the date of the accident and 53 or 54 at the date of the trial. The trial judge expressed his conclusions and assessed the damages as follows: "I am prepared to accept that he does have headaches however in one report his treating neurologist described them as being tension headaches. Doing the best that I can to reconcile the conflicting medical opinions and assessing the plaintiff on his presentation and evidence in the witness box it appears to me that he did suffer a post-concussion syndrome which resulted in headaches and some right scapular and shoulder pain. Further that he sustained a soft tissue injury to his neck and right shoulder region. I am not persuaded that his low back condition was rendered worse by the Woolworths incident. His continuing ingestion of Panadol and other medication is in part the result of the subject accident. Any limitation of movement in his neck and right arm are minor. Indeed the accident has resulted in minor disabilities and not the major incapacities and handicaps described by the plaintiff. He has made but few inquiries with regard to employment. I find there is very little difference between his economic capacity, pre and post the Woolworths incident. I do however believe that there has been some minor diminution in his ability to work because of this incident and I will make a modest allowance for this. Having regard to the virtual dearth of any organic basis for his disabilities or symptoms it is difficult to assess their duration. I do not believe that he will be permanently disabled and [I believe] that he will return to his pre-Woolworths incident condition in the not too distant future. As stated in assessing his general damages I will make a modest allowance for economic incapacity. I will further make a modest allowance for future medical expenses and medication on the assumption that he may not be able to obtain such treatment without charge. As to past general damages I allow the plaintiff the sum of $30,000, interest thereon $2,520, future general damages of $25,000, future out-of-pocket expenses $450, past out-of-pocket expenses $506.70. The defendant is to have credit in the sum of $136." 11 Being a person with an existing back disability and its effect on his earning capacity, the appellant had to establish a further reduction in earning capacity. But, more important, the appellant had to establish the production or likely production of economic loss from that further reduction in earning capacity. This, I think, is what the trial judge had in mind when he referred to making a modest allowance for economic incapacity. The appellant began as someone with a reduced earning capacity, and over some four and a half years had not been able to exercise that reduced earning capacity in any significant way. 12 The consequence in production of economic loss of the minor diminution in his ability to work found by the trial judge was particularly difficult to assess and would not have been great. In my opinion it was appropriate for the trial judge to allow a cushion, and I do not see why he could not have taken the same approach in these circumstances both for the past and for the future, a kind of retrospective cushion plus a cushion for the future. Indeed, the appellant's counsel accepted that this was a case in which a cushion approach could have been taken. 13 The trial judge had a plaintiff with a significantly compromised earning capacity. He considered that there was very little effect on the earning capacity, and he did not have to put a percentage on that effect. He described it as a minor diminution, and that was sufficient for him making what he called a modest allowance. In the course of the hearing the figure of $50 per week as a reflection of reduction in earning capacity was proposed to see where it led, and it led to past and future economic loss in the vicinity of $20,000. One must then take into account whether, given the previous four and a half years, the postulated reduction in earning capacity at the level of $50 per week would in fact be productive of economic loss of that kind, and there was good reason to conclude that it would not. In my opinion, a cushion in the vicinity of $10-15,000 was the highest which the trial judge could reasonably have come to given his conclusions set out above. 14 That then left, to test the adequacy of the global amount, a figure of $40-45,000 for non-economic loss, and for the moment I put aside the question of physiotherapy. 15 On the trial judge's findings, the general damages properly awarded would not be large. There were headaches and there was some shoulder pain, but the trial judge clearly rejected the significant, immediate and continuing consequences of being hit on the head which the appellant put forward, and he described the consequences as minor disabilities. 16 He also considered that the appellant would be free from any consequences in the not too distant future. What was meant by "the not too distant future" is not entirely clear, and this was one of the focal points of the appellant's submissions. It was said that the medical evidence did not support an improvement whereby the appellant would return to his pre-Woolworth's incident condition at some time after the trial, although it was recognised that the appellant had said that he had got a bit better in 1999 with a change in his medication. Reference was made in addition to the evidence of the appellant's wife, generally to the effect that although the appellant's condition was not good after his 1990 and 1992 injuries he was more difficult to live with and appeared to be suffering more pain after the 1996 injury. It seems to me that the trial judge took a fairly broad view of the not too distant future, and considered that after some years, given a degree of improvement in the past and the conclusion of the litigation, the appellant would return to his condition before the 1996 injury. 17 But even if that not be right, and a less hopeful view be taken of the appellant's future, it seems to me that on the findings of the existing level of the plaintiff's pain and suffering and the effects on his life a figure of $40-45,000 for general damages was at the high end, if not beyond it, of what properly could have been awarded for non-economic loss. 18 The physiotherapy expenses were left rather obscure on the evidence, but whatever sum should have been allowed, if it was not included in the $450 future out-of-pocket expenses, would have been measured in hundreds rather than thousands. The two ranges of figures to which I have referred so far seem to me to have plenty of fat for including future expenses for physiotherapy if such expenses should be included. 19 In the result, therefore, in my opinion the damages which the appellant obtained were as good as he could reasonably have expected, and indeed he did quite well. No error warranting a reassessment has been shown. Hence my opinion that the appeal should be dismissed with costs. 20 STEIN JA: I agree with Justice Giles. Accordingly, the order of the Court is that the appeal is dismissed with costs. ________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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