Drazic v Churcher File No. SCGRG 91/2699 Judgment No. 3654 Number of Pages 7 Damages General Principles Personal Injuries

[1992] SASC 3654

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(1), Mullighan(2) and Olsson(3), JJ.

CWDS
Damages - general principles - personal injuries - 41 year old woman - injured in road accident on way to work - musculo-ligamentous injury to cervical spine and injury to her back - upon return to work supervisor's job unavailable to her - unable to cope with job made available - depression - somatoform pain disorder - no findings made as to conflict in psychiatric evidence - reasonable to infer total incapacity for work for a substantial period and partial incapacity thereafter - increased on appeal from $11,533 to $58,933 - interest calculated on the basis of deducting all payments of workers' compensation as appellant did not discharge the nature and purpose of such payments - interest allowed at $14.500 - appeal allowed and judgment sum increased to $97,986.55.
Haines v Bendall (1991) 172 CLR 60, referred to. Batchelor v Burke (1981) 148 CLR 448, applied.

HRNG ADELAIDE, 4 September 1992 #DATE 16:10:1992
Counsel for appellant:        Mr R.N.H. Mayne
Solicitors:                 Paul Kirk Roberts and Co.
Counsel for respondent:     Mr I.H. Polson
Solicitors:                 Ross and McCarthy

ORDER
Appeal allowed.

JUDGE1 KING C.J. The facts are set out in the judgment of Mullighan J. This is a difficult matter for an appellate court because the learned trial judge did not indicate his attitude to the body of psychiatric evidence and did not make precise findings as to when the appellant recovered her earning capacity in whole or in part. It is necessary to draw some inferences as to what the judge must have thought of the evidence and to reach some further conclusions from the evidence without the benefit of the judge's findings. 2. On the evidence of Mr G A J McCulloch, the neurosurgeon, on which the learned judge relied with respect to the physical injury, it is clear that as far as the physical injuries, being the musculoligamentous strain to the back, were concerned, the appellant's incapacity for work ceased some three to six months after the accident and she had fully recovered from the musculoligamentous strain by December 1988. Nevertheless, it was the plaintiff's evidence that pain and discomfort continued up to the time of trial. The learned trial judge made this finding concerning the appellant's credibility:
    "I accept the plaintiff. I do not believe she was trying to
    embellish or exaggerate her injuries. No doubt she was
    disappointed when she returned to the more manual type job at
    Actil and she would have preferred being a leading hand.
    However, I do accept the nature of her suffering in that time
    and I note that she received compensation to 6th December,
    1986." 3. There was a conflict of evidence between the psychiatrists who were called to give evidence and his Honour did not indicate his findings regarding the psychiatric evidence. One psychiatrist, Dr. Czechowicz, considered that the appellant was suffering from a somatoform pain disorder, which is to say that the pain was psychologically caused. As there is no other explanation of the appellant's pain, acceptance by the learned trial judge that the appellant indeed suffers such pain appears to imply acceptance of the opinion that it is psychologically caused and that she suffers from a somatoform pain disorder. 4. The appellant's evidence was that she was unable to continue at the work which was provided for her when she resumed at Actil in May 1987. It was clear from her evidence, however, that she recovered a capacity for work at some subsequent time. The appellant's evidence about the timing and degree of that recovery is vague.
    "Q. Do you think you could have coped with a part-time job
         a couple of years ago?
     A. If I had that position what I had in Actil, may be (sic) I
         can full-time working, but that depends, what duty light
         can I have, what can the people offer me. May be (sic)
         light duty for people who need ironing or something like
         that. That I can do two years ago but now I can much more,
         hard cleaning, washing, something like that." 5. She gave evidence that she applied unsuccessfully for a cleaning job involving work for six hours a day, about three months before trial. 6. It is apparent that the appellant, on her own evidence, had recovered virtually her full working capacity some months prior to trial. She had recovered a partial capacity some considerable time before that. The expression "two years ago" was clearly not a considered definition of the precise time at which she recovered partial capacity. There is no precise evidence as to that. 7. The onus is on the appellant to prove her damages and consequently to prove the period of total incapacity. In view of the imprecision of her estimate as to when she recovered partial capacity, I do not think that it would be safe to attribute total incapacity to a period extending beyond the end of 1988. I think, however, that the judge's acceptance of the appellant's evidence as to her sufferings requires that she be treated as totally incapacitated to the end of 1988. I agree with Mullighan J that her loss to that date should be allowed at $31,400 in addition to the sum of $7,533 which she received by way of workers compensation payments and which will have to be repaid. 8. Thereafter, in the absence of proof that she remained totally incapacitated, she must be treated, in my opinion, for the purpose of the assessment of the damages as having recovered a partial capacity for work. By a point in time some few months prior to trial, she had recovered virtually full capacity. 9. The evidence is, however, that she made no effort to obtain employment until three months before trial. By that time she had recovered virtually full working capacity and there is no evidence that her failure to obtain the job for which she applied was due to any disability. The onus is on the appellant to prove that her partial incapacity during 1989, 1990 and 1991 resulted in financial loss. During that period she had a significant and, doubtless, increasing working capacity. As she made no effort to obtain employment, she has, in my opinion, failed to prove that the incapacity was productive of loss. She gave no real explanation of her failure to seek employment. The passage which I have quoted above might be read as indicating that she considered that it was the responsibility of others to offer her employment if they wished her to work. Perhaps the learned judge's assessment of her attitude is indicated, at least obliquely, by his reference in the passage quoted above to the appellant's disappointment at being returned to the more manual type of job in May 1987 and by another statement in his reasons that "the fact that she was not able to resume in her job as a leading hand, may well have contributed to her leaving her work and contributed to her decision not to return to work." However that may be, it seems to me that the appellant has not satisfied the onus which rests upon her as a matter of law to prove that such disabilities as she had after the end of 1988 produced financial loss. In the absence of such proof, there is no basis for including in the damages an allowance for the financial impact of loss of earning capacity during that period. 10. In my opinion the amount of $11,533 which the learned judge allowed for pre-trial economic loss is inadequate. I would allow $38,933 which sum includes the amount of $7,533 paid to the appellant by Actil by way of workers compensation. I agree with the comments of Mullighan J as to the way in which the lump sum payment of $5,000 should be treated for the purpose of computing interest. I would allow interest on the sum of $26,400 at the rate of 12 percentum per annum from the date of issue of the proceedings. I would allow interest on the sum of $4,000 allowed for past non-economic loss at 4 percentum per annum for the same period. I would fix a lump sum in lieu of interest of $14,400. In my opinion therefore the total judgment, inclusive of interest, should have been $77,886.65. I would allow the appeal and vary the amount of the judgment to $77,886.65. I would set aside the order for costs made in the court below and hear counsel as to the order which should now be made.

JUDGE2 MULLIGHAN J. The appellant was injured in a road accident on 25th July 1986. She brought an action in the District Court for damages for the injuries sustained and loss suffered by her as a result of the accident. The respondent admitted liability and the action proceeded for the assessment of her damages, which the learned Trial Judge assessed at $36,086.65. He declined to award interest in view of payments made to the appellant pursuant to the Workers Compensation Act 1971. The appellant complains that the award of $11,533 for past economic loss is manifestly inadequate and that the learned Trial Judge erred in declining to award interest on the damages for past non economic loss and part of the award for past economic loss. 2. At the time of the trial the appellant was aged 41 years. She was born in Yugoslavia and left school when aged 15 years. She was a dressmaker. After living in Germany for about five years and returning to Yugoslavia, she married and later migrated to Australia in 1981 with her husband and daughter. She obtained work at Actil Ltd. in the spinning department as a machine operator and eventually became a leading hand. 3. The accident occurred whilst she was travelling to work. She suffered a musculo-ligamentous injury to her cervical spine and an injury to her back. She received medical treatment, physiotherapy and hydrotherapy and her condition improved to the extent that she was able to return to work in May 1987. However, she was not permitted to resume her job as a leading hand and was required to work as a machine operator which was more physcially demanding. After about one and a half days she found that she could not perform that work due to her injuries and has not since been employed at Actil Ltd. She commenced proceedings for worker's compensation. Prior to the road accident she injured her left leg at work on 27th April 1985 and also commenced proceedings for worker's compensation. Both proceedings were settled. The worker's compensation payments received by the appellant were proved at the trial, although the nature of all of the payments is not clear. The learned Trial Judge found that she received weekly payments in the total sum of $7,533 up until 16th December 1986. It appears that she also received a lump sum of $5,000 when she settled one of the proceedings. It was a term of the settlement that her employment with Actil Ltd. terminated on 16th March 1989. Following the road accident, the appellant was seen by 16 medical practitioners, mainly for medico-legal purposes, including three psychiatrists. Only one medical practitioner, Mr. McCulloch, gave evidence. Reports of the others were admitted into evidence. Mr. McCulloch first saw the appellant on 1st September 1987. He expressed the opinion that injuries of the type suffered by her usually resolve within three to six months and that when he saw her she was fit to resume work. According to him, there was no relationship between the condition of her cervical spine and the pain and discomfort from which she claimed to be suffering. Indeed, he went on to say that she had resumed her pre-accident condition. According to him she had some minor residual disability, which he assessed at five per cent and which he described as only a nuisance. It appears that the learned Trial Judge did not accept that evidence entirely as he said:-
    "I have heard that statement many times before. I have made
     at times many findings that at times the pain symptoms from
     musculo-ligamentous injuries can exceed that time. Each case
     must be assessed on its own factual findings. I accept the
     plaintiff. I do not believe she was trying to embellish or
     exaggerate her injuries. No doubt she was disappointed when
     she returned to the more manual type job at Actil and she would
     have preferred being a leading hand. However, I do accept the
     nature of her suffering in that time and I note she received
     compensation to 6th December 1986." 4. According to the appellant she did not recover from her injuries. Her pain and discomfort increased. When she returned to work, she was unable to perform the duties allotted to her. She was required to sit for long periods, pull rubber from steel, push a broom and lift items from the floor to a table which caused soreness and pain. She continued to suffer pain in her neck, shoulder and back, and headaches intermittently, after attempting domestic work and heavy work at home. She is unable to carry heavy objects. She became depressed after the accident. In the few months before the trial, she attempted to obtain work as a cleaner but without success. She felt that she could work no more than a few hours each day, but the jobs which she sought all involved working for six hours each day. However, she acknowledged that by about two years before the trial, she was capable of light work such as ironing but had since improved so that by the time of the trial she could manage "hard" cleaning and washing. The trial took place in October 1991. 5. Among the many medical practitioners who have seen the appellant is Dr. Czechowicz, a psychiatrist. He saw her on 23rd March 1988, 20th September 1989, 22nd June 1990 and 14th November 1990. He disagreed with the opinions of Mr. McCulloch, and in particular that she was fit for work at the stage that Mr. McCulloch expressed that opinion on 22nd December 1988. According to Dr. Czechowicz the appellant was suffering from a somatoform pain disorder. On 15th November 1990 he was of the opinion that her level of disability was 20% and that she should undertake a consistent rehabilitation programme to enable her to return to work. This opinion is at odds with the views of the other psychiatrists. Dr. Meldrum saw her on 22nd August 1988. In his opinion she was not anxious or depressed and did not suffer a psychiatric illness. Dr. Blakemore saw her on 2nd September 1991 and expressed similar views. 6. The learned Trial Judge did not mention the psychiatric evidence in his reasons for judgment and did not express any conclusion as to the apparent conflict in this evidence. However, it is reasonable to conclude that because he accepted the evidence of the plaintiff, he must have concluded that the pain and discomfort in her neck, shoulders and back did continue as she claimed and that the major cause was a psychiatric condition of the nature described by Dr. Czechowicz. Such a conclusion is not necessarily inconsistent with the evidence of Mr. McCulloch as it appears that her symptoms were disproportionate to her physical condition as described by him. The only inference to be drawn from the findings made by the learned Trial Judge is that the appellant had substantially recovered from the physical effects of her injuries by the time she saw Mr. McCulloch, or soon thereafter, but by that time she had developed the somataform pain disorder which continued thereafter. 7. The reasons given by the learned Trial Judge for his assessment of the claim for past economic loss are:-
    "The plaintiff is entitled to repayment of the weekly payments
     of compensation from 16th December, 1986. That total was
     $7,533. As I mentioned, she has a restricted capacity which
     continued through into 1987 before her condition stabilised.
     The plaintiff is to recover something for this loss of income.
     I do not overlook the fact that she complained in 1987 of
     dizziness, which cannot be attributed to this accident. I note
     she has a very minor residual problem with her leg. In all the
     circumstances, I propose to award $4,000 for this sum. So that
total for past economic loss is $11,533." 8. In my view, as the learned Trial Judge had accepted the evidence of the respondent and, it would seem by implication, the opinions of Dr. Czechowicz the award of $4,000 for the period beyond 16th December 1986 was an erroneous estimate of damages for loss of earning capacity and was inconsistent with the evidence and manifestly inadequate. It is appropriate to regard the weekly payments of compensation as the measure of her loss until the time when they ceased. For the period thereafter, the award should be based upon the wages which she would have earned at Actil Ltd. during the period when she was unable to work with some additional allowance during the period when she was partially incapacitated for work. The learned Trial Judge did not express any finding as to when the appellant had recovered sufficiently to return to work. Despite the evidence of the appellant that she was fit for light work about two years before the trial, she was not attempting to be precise. There is considerable uncertainty in the evidence which is complicated by the failure of the learned Trial Judge to make the necessary findings. However, the evidence does justify a finding that she was not able to return to work, due to her injuries until the end of 1988, and that her condition improved thereafter so that she was capable of light work by about October 1989, had a 20% residual disability by November 1990 and was capable of some heavy work by the time of the trial. Such a finding is consistent with the evidence of the appellant and Dr. Czechowicz. If she had not been injured and had worked as a leading hand at Actil Ltd. until the end of 1988, she would have earned about $31,400 after income tax in addition to the payments of weekly compensation. Those amounts should be allowed. For the period thereafter there must be a broad axe approach. If she had worked as a leading hand until the trial she would have earned a further $50,000, or thereabouts, after income tax. However, she is to be compensated for the diminution of her earning capacity. The evidence does not permit precise findings as to the true extent of her earning capacity during that period, what income she did receive from an apparently brief period of employment or whether she was disadvantaged in attempts to obtain work due to her partial incapacity. Nevertheless, it is apparent that she had significant incapacity and I would allow a further amount of $20,000. 9. The appellant also complains that the learned Trial Judge was in error in declining to award interest on the award for past economic loss by reason of the payments of worker's compensation. It would appear that he felt constrained to have regard to the lump sum payment of $5,000 and to set it off against the award for past economic loss for the purpose of interest. The nature and purpose of that payment was not proved in evidence. It is not known if it was a payment by way of redemption for future weekly payments, under the s.69 of the Worker's Compensation Act (a table payment), or under s.70 (for other injuries) or entitlement to past weekly payments or something else. Furthermore, it was not proved whether that payment related to the injuries which she sustained in the accident or to the claim which she made with respect to the pre- accident injury. If the appellant sought to have that payment isolated from the consideration of interest in these proceedings, she bore the onus to prove the nature and purpose of the payment. As she did not discharge that onus, she must bear the interpretation most unfavourable to her. Consequently, that payment should be regarded as in the nature of weekly payments and should be brought to account in calculating interest on the award for past economic loss: Batchelor v. Burke (1981) 148 CLR 448. Consequently, it is unnecessary to consider the reach of the recent decision of the High Court in Haines v. Bendall (1991) 172 CLR 60. In my view, the learned Trial Judge was correct in his approach to the worker's compensation payment. 10. However, interest must be awarded with respect to part of the award for past economic loss in view of the assessment of that loss on appeal. The action was commenced on 24th June 1988. Interest should be awarded at 12.5 per cent. The total award is $51,400 in addition to the $7,533 paid by way of worker's compensation. The further payment of $5,000 must be deducted leaving an amount of $46,400 which attracts interest. About one half of the loss represented by that amount accrued before the action was commenced and the balance progressively thereafter. I would allow interest on 75% of that amount for the full period from the commencement of the action until the trial, a period of three years and four months. I would fix interest at $14,500. 11. The appeal should be allowed. The amount of the judgment should be increased to $97,986.65.

JUDGE3 OLSSON J. I have had the advantage of reading the reasons for decision of Mullighan J. in draft. I agree with his reasoning and the orders which he proposes.