Caterina Ruggiero v Grant John Burgess No. SCGRG 450 of 1992 Judgment No. 3588 Number of Pages 3 Damages General Principles

[1992] SASC 3588

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), LEGOE(2) AND COX(3) JJ

CWDS
Damages - general principles - Question of inadequate damages - substantial permanent disabilities affecting the spine - loss of income and reduction in earning capacity - reliability of witness' testimony - allowance of $1,673 to be made for the professional services that did not include thermography - increase in special damages.

HRNG ADELAIDE, 2 June 1992 #DATE 27:8:1992
Counsel for appellant:     Mr M A Crawley
Solicitors for appellant:    Moody Rossi and Co
Counsel for respondent:     Mr B D Amey
Solicitors for respondent: Stratford and Co

ORDER
Appeal dismissed.

JUDGE1 MOHR J The appellant appeals against an assessment of damages made in her favour in the District Court Adelaide on the ground that the amount awarded was manifestly inadequate. 2. The appellant was on the 26th May 1985 a passenger in a car driven by her husband which was struck from behind by a vehicle driven by the respondent. The respondent admitted liability and the matter proceeded as an assessment of damages. 3. The appellant complained of injuries to her spine which caused considerable pain and as at the date of trial - February 1991 - that her injuries had left her "with substantial permanent disabilities affecting her cervical and lumbar spine. She will continue to experience pain and restriction of movement to those areas. She will continue to experience headaches." 4. She further alleged a pre-trial loss of income and a continuing substantial reduction in her earning capacity. 5. As at the date of the accident the appellant was aged about 49 years. 6. As is not uncommon in this type of assessment much depended on the plaintiff's credibility. The learned trial tudge had this to say on that topic:-
    "The plaintiff gave her evidence mostly in English but
    with the help of an interpreter in the Italian language from
    time to time. I realise it is difficult for a plaintiff to
    appear candid and lucid in such circumstances but
    notwithstanding, allowing for those difficulties, I found the
    plaintiff to be evasive and vague as to her symptoms her working
    ability, her past work and her future working intentions." 7. His Honour rejected the evidence of a Dr. Thomas, who gave evidence on behalf of the appellant and preferred the evidence of Dr. Fry and Dr. Morrison who were called by the respondent. However, having said that, he went further and said:-
    "But even accepting their evidence because of my view of
    the plaintiff (appellant) as a witness I find that her injuries
    were minimal and have not affected her working circumstances to
    other than a very minor degree and the discomfort she does
    suffer depends on what incentive she has to go to work." 8. The appellant's counsel criticised his Honour's findings made subsequent to the remarks set out above and it may be that what his Honour said could have been expressed more precisely but what is clear is that it was the view he quite clearly took of the appellant's reliability which coloured his findings and assessment. It also coloured his interpretation of the opinions expressed by the doctors whose evidence he accepted. Both doctors spoke of the appellant as having suffered ligamentous injuries to the spine. Dr. Morrison spoke of her suffering "some musculo-ligamentous injuries to her neck and spine" and Dr. Fry "in her neck there appears to have been a mild musculo-ligamentous straining". 9. The appellant's counsel criticised his Honour's description of the appellant's injury when he said "the plaintiff suffered a minor ligamentous strain as described by Dr. Fry". In particular he pointed to the difference between "mild" and "minor" but when seen in the light of the finding as to the appellant's reliability in describing her symptoms this is understandable and in any event is a matter of semantics. The description of his Honour was justified bearing in mind his findings as set out earlier. The appellant's counsel did not seek to challenge the basic findings of his Honour as to the appellant's reliability. 10. As to the appellant's ability to work in the future. Further criticism was levelled at the following finding. "I accept the evidence of Dr. Fry that there was no reason why the plaintiff cannot continue in the limited amount of work she was doing before the accident." 11. I will not set out the whole of Dr. Fry's evidence but it is significant that in one passage he said "I would imagine, accepting that she gets problems in the neck and accepting that she gets problems in the lower back I would imagine that would cause her difficulties". 12. Later his Honour asked:- "So I am right in understanding your evidence, that if you were looking purely at the physical symptoms without looking at any incentive she could fulfil her functions of working a machine as before." Dr. Fry answered:- "Yes thats right, you get back to the balance as I say. Its going to cause her pain its going to reduce the pension, who in their right mind is going to do any extra work." 13. In my opinion the criticism was ill founded if one has regard to the earlier findings. 14. In the result his Honour held that the appellant "has not satisfied me on the whole of the evidence that there is any probability that she has suffered any loss of earning capacity because of the accident and I allow no amount for that". 15. In my opinion with evidence in the state it was there was ample justification for that finding. 16. The sum of $3,000.00 was allowed for future non economic loss. In my opinion this was sufficient to recompense the appellant for any pain she may have to suffer in her every day life including any pain suffered if she cares to do the work she is physically capable of. His Honour could perhaps have expressed his opinions and findings more precisely but I am not convinced he fell into any error. 17. Apart from one matter I would dismiss the appeal. In regard to Dr. Thomas no allowance was made for his consultations and treatment. In view of the attitude taken by the respondent's counsel it is unnecessary to discuss this aspect of the matter in any detail. Suffice to say that an allowance as part of the special damages of $1,673.00 should have been made for the professional services that did not relate to thermography and I would allow the appeal by increasing the assessed damages by that amount.

JUDGE2 LEGOE J I concur.

JUDGE3 COX J I agree with the order proposed by Mohr J for the reasons that he has given.