Peter Bagnara v John Paul Puntillo No. SCGRG 93/1608 Judgment No. 4347 Number of Pages 17 Damages
[1993] SASC 4347
•23 December 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (2), BOLLEN(1) and MILLHOUSE(3) JJ
CWDS
Damages - Assessment of damages: exaggerated claim made deliberately: vague and to some extent untruthful evidence as to "Past economic loss": But the evidence of surgeon, general practitioner, and wife of the plaintiff prove some disability although slight: small award made by trial judge Held: not to be manifestly excessive. Richard Evans and Co. Limited v Astley (1911) AC 674 at 678 and DeVries v Australian National Railways (1993) 67 ALJR 528, applied. O'Brien v Mcxeen (1968) 118 CLR 540 at 546 and Giorginis v Hastrati (1988) 49 SASR 371 at 378, considered.
HRNG ADELAIDE, 3 December 1993 #DATE 23:12:1993
Counsel for appellant: Mr S Walsh QC
Solicitors for appellant: Ward and Partners
Counsel for respondent: Mr R W Evans
Solicitors for respondent: Tindall Gash Bentley
ORDER
Appeal dismissed, cross-appeal allowed.
JUDGE1 BOLLEN J The respondent was the plaintiff in this action in the District Court. He instituted proceedings to claim damages for injuries said to have been sustained in an accident on King William Road at Adelaide on the 23rd May 1988. The summons was issued "one day late". The learned trial Judge on sound grounds granted an extension of time for the institution of proceedings to validate these proceedings. No complaint is made about that extension. 2. The matter came on for assessment of damages. Liability had been settled with the appellants accepting 85 percent of the responsibility for the damages to be awarded to the respondent. 3. Underlying the case for the appellant below and on appeal was the contention that any award should be very small indeed, even minimal. The appellant could not go quite so far as to suggest that no award at all should be made. 4. The respondent was born on 23rd April 1963. He was 30 at the time of trial. He had married in the year prior to the accident. The particulars of injuries set out in the amended statement of claim are:-
"PARTICULARS OF PERSONAL INJURY
- Musculo ligamentous injury in the region of the cervical
spine.
- sublaxation of the left acromino-clavicle joint.
- neck injury.
- consequential tension headaches.
The Plaintiff's motor vehicle was hit head on by the motor
vehicle being driven by the defendant. His motor vehicle had to
be towed away. The following morning he was suffering from
severe headaches and considerable pain in his left shoulder. He
attended at his local general practitioner for treatment. After
the accident the Plaintiff also experienced symptoms of
persisting constant headaches, general weakness and lack of
energy; persisting pain in the left side of his neck and left
shoulder and arm and pain in his back. Due to the aforesaid
symptoms the Plaintiff has suffered interruption in his sleep
since the accident. He had commenced employment with Union
Street Produce on the very same day of the accident. He had some
time off work. In February, 1989 the left shoulder had became so
progressively more painful that he came off work and had
injections in the shoulder. He tried returning to light duties
but because of the pain he had stopped work. He had two
injections and has been examined by a number of orthopaedic
surgeons. The Plaintiff also had three weeks off work before
Christmas 1988 because of the shoulder pain and neck pain. Dr M.
Hone has recommended an excision of the outer end of the left
clavicle. On the 9th May, 1989 he resumed light duties at work.
He would only work a four hour daily shift. The light duties
consisted of driving a truck. He experienced difficulty turning
and changing gears which caused him considerable pain and
discomfort. At the end of a working day he felt very tired and
would be in considerable pain. On the 19th January 1990 he was
given 28 days notice of termination of his employment. He has
been in receipt of unemployment benefits since the 22nd of
February 1990 and has been unable to find any other employment
because of the injury to his left shoulder. Due to the injuries
that the Plaintiff sustained in the aforesaid accident he is
restricted in his ability to engage in social and sporting
activities. The Plaintiff has received treatment from his
injuries from his local general practitioner, orthopaedic surgeon
and a physiotherapist. He will require on going medical and
physiotherapy treatment." 5. The learned trial Judge found that there was no basis for an allowance for "future economic loss". The allowance made for economic loss was for loss prior to trial. 6. The assessment of damages was:- Pain and suffering - numeral 8 $8,560.00 Economic loss 8,000.00 Special damages 410.40 Interest 3,000.00 Total $19,970.40. Judgment was entered for 85 percent of that assessment, namely, $16,974.84. 7. The appellant appeals. The respondent cross appeals. The ground of the cross appeal is:- 1. That the learned Trial Judge erred in awarding the plaintiff only outstanding special damages in the sum of $410.40 and in failing to award the further sum of $2,636.20 being medical expenses paid by the WorkCover Corporation on behalf of the respondent." 8. I set out the grounds of appeal by the appellant against the assessment of damages although the attack was concentrated more narrowly on appeal than is suggested by the grounds. The grounds are:-
1. That the Learned Trial Judge erred in awarding the
plaintiff the following sum on account of damages:-
(a) The sum of $8,560.00 for pain and suffering.
(b) The sum of $8,000.00 for past economic loss.
(c) the amount of $3,000.00 for interest on past economic
loss.
2. The award for pain and suffering was manifestly excessive
and against the evidence and the weight of the evidence. 2.1
That the Learned Trial Judge, having found that the plaintiff's
permanent disability was minor and that his problems had
stabilised certainly early in 1988, erred in awarding $8,560.00
for pain and suffering.
2.2 That the Learned Trial judge erred in failing to consider and
place any or any sufficient weight on the medical opinion of Dr
Jose and in particular his opinion that the plaintiff was
suffering from no physical disability.
2.3 That the Learned Trial Judge erred in relying to any extent
on the evidence of Mrs Puntillo.
3. The award for damages for past economic loss was contrary to
the evidence and the weight of the evidence, or, alternatively,
was manifestly excessive.
3.1 The Learned Trial Judge found that the plaintiff's injuries
did not represent an incapacity for work in the future.
3.2 The Learned Trial Judge found that the plaintiff's permanent
disability was minor.
3.3 The Learned Trial Judge found that the plaintiff's problems
had stabilised certainly early in 1988.
3.4 The Learned Trial Judge found that the plaintiff had given
vague evidence about times away from work with no other support
in the evidence.
4. The Learned Trial Judge erred in awarding interest or,
alternatively, the allowance for interest was manifestly
excessive and contrary to the evidence and the weight of the
evidence." 9. In his earnest and forceful submissions Mr Walsh QC said much, all important, and in a short time. And he submitted a comprehensive outline of argument. He submitted that for pain and suffering the numeral 8 was too generous to the respondent. He said that the interest was manifestly excessive. But his heaviest guns were aimed at "economic loss". On this score in his outline he wrote:- "He neither had incapacity for his normal work nor any evidence of loss of income and there should have been no award for past loss of earning capacity in the circumstances of the case." Nothing for economic loss. So submitted Mr Walsh QC in his powerful argument. 10. I say some things that apply in general to claims for damages. 11. The plaintiff must always prove his case. He must offer evidence capable of proving it. I am sorry to be trite, perhaps I should say consciously trite. Mr Walsh pressed this point very hard. This leads me to mention that "proof" does not mean "demonstration of correctness". In Richard Evans and Co. Limited v Astley (1911) AC 674 at 678 Lord Loreburn LC said:-
"The applicant must prove his case. This does not mean that
he must demonstrate his case. If the more probable
conclusion is that for which he contends, and there is
anything pointing to it, then there is evidence for a court
to act upon." 12. As will appear I do think that there was a probability in favour of the respondent to the extent which I mention and something pointing to it in this case. 13. An appellate court must give great weight and importance to the findings of the trial Judge. I think that there has been something of a tendency in Australia in recent times sometimes for an appellate court to travel but a short distance from paying lip service to this principle. Perhaps the decision of the High Court in Devries v ANR (1993) 67 ALJR 528 will halt this unconscious tendency. The principle in Devries v ANR is very important in this case. The learned trial Judge had the advantage of seeing and hearing the witnesses. In particular he had the advantage of seeing and hearing the respondent and the doctors who gave evidence in his case. 14. A plaintiff who is found to be untruthful on any matter in issue must expect to have his evidence as an whole passed through the finest of mental tooth combs. If he has behaved dishonestly by receiving cash wages without declaring them in income tax returns or if he has submitted no returns he must expect the risk of receiving nothing, or perhaps very little, in compensation for past economic loss. If he produces no records in proof of loss he must expect the same risk. But sometimes lies, dishonest conduct and lack of records will reduce rather than negate altogether an allowance for economic loss. The court may find that some loss must have occurred and a modest assessment may, therefore, be made albeit on sparse evidence. In speaking of the assessment of damages for loss of capacity to earn in O'Brien v McKeen
(1968) 118 CLR 540 at 546 Barwick CJ said:- "The fair compensation for it is to be determined as a matter of judgment and not of calculation." 15. And in the very case on which Mr Walsh so much relied von Doussa J said:-
"Any attempt at calculation of damages is impossible.
The assessment must be broadly based. I would assess the
pretrial loss of earning capacity at $4,000.00..."
(Giorginis v Kastrati (1988) 49 SASR 371 at 378). 16. I understand and acknowledge the force of all Mr Walsh's submission based on that case but it is interesting to notice that in the end, left with very sparse material indeed, von Doussa J (with whom the other members of the Full Court agreed) made an assessment of damages for past economic loss. It was based on assessment not calculation. 17. The rogue may sometimes receive nothing. But sometimes there is enough proof of some injury some continuing effect and perhaps by fair inference some continuing loss of capacity fully to exercise the capacity to earn which will entitle the rogue to some modest award. Attempted deceit will not always prevent some award. It will usually depend on the evidence of people other than the plaintiff eg. medical practitioners, employers and members of his family. 18. There is no doubt that the respondent here was untruthful on an important issue. There is no doubt that he was receiving money which he did not declare in income tax returns. There is no doubt, in my opinion, that he was out to get more than to that which he was entitled and acted to that end deliberately. He substantially and dishonestly exaggerated his symptoms. 19. But the learned trial Judge saw through him. The learned trial Judge realised that this was an exaggerated claim. He, therefore, subjected the whole of the evidence offered for the appellant to close scrutiny. But in the end the appellant had the great advantage of evidence from a highly reputable and competent orthopaedic surgeon, Mr M R Hone. And there is no reason to doubt the integrity and competence of the general practitioner whom the appellant consulted so often, Dr A Cocchiaro. 20. Let me now (despite the resultant lengthening of these reasons) quote a long excerpt from the reasons of the learned trial Judge. I think it well to do so to see how the learned trial Judge reasoned. Better his own words than a summary by me. His Honour said:-
"The plaintiff was born in April 1963 and married in the year
prior to the accident. He lives at Prospect with his wife in a
house which is owned by his father-in-law. He attended St
Michael's College and Enfield High School and left midway through
year 12 when he said he commenced work with his brother-in-law
who was a rigger. He did not undertake any apprenticeship or
formal training. The plaintiff carried out that job for about 18
months and then worked for about a year as a process worker. He
was then overseas for about 6 months, in fact he left his
employment to travel overseas. After returning to Adelaide he
worked again for his brother-in-law for a short time, about 15 to
18 months, and then was able to obtain a job at Tecalemit as a
process worker. He explained that this was a job cutting steel
with an automatic machine. He worked there for about 7 months
from March 1987 to September 1987. He was asked -
'Q. In what circumstances did you finish up working there.
A. I got married. I left. I was after a better job.'
He said he was then unemployed for about 8 months, but during
this time he was helping a friend of his named Gabriel De Santis
in a fruit shop by going to the markets and helping load the
truck as 'he tried to keep busy'. The plaintiff said in all this
time when he was looking for work his health during the period
was 'pretty good'. The plaintiff said he was quite accustomed to
doing heavy work and in fact in this time and over about a two
year period he had helped his father-in-law with renovations of
their house at Farrant Street, Prospect. The plaintiff said the
work at the fruit shop was heavy work in the nature of lifting
heavy boxes off the truck, including boxes of apples and potatoes
up to 50 kilograms in weight. The plaintiff said he commenced a
job with the firm called 'Union Street Produce' in May 1988 and
this was work in the nature of a truck driver and storeman
loading at times as many as 30, 50 to 60 boxes of fruit on a
truck. He was asked -
'Q. I think you had a motor vehicle accident on the second
day.
A. Yes.
Q. That was on Monday, 23 May 1988.
A. That's right."
The plaintiff then outlined how he was driving his employer's
vehicle along King William Road when the accident occurred and
suffered injury to his shoulder and neck. He said at the time he
was shocked and did not really feel anything, but, then that
night he suffered a sharp pain in his neck and shoulder with an
accompanying headache. The next day he attended his doctor, Dr
Cocchiaro, who prescribed some analgesics as well as
anti-inflammatory tablets, but they did not assist his problems.
The plaintiff said that he was unable to work his full time
duties as he could not lift, but he received help from his work
mates. He was placed on light duties at his work. The plaintiff
also attended for physiotherapy within a few days of the
accident, but eventually felt that treatment aggravated his
condition. The plaintiff was unable to say how many days he had
away from work following the accident. He remembered that he was
referred to Mr Michael Hone who injected cortisone into his
shoulder on a number of occasions and told him that he needed an
operation for the removal of a small piece of bone in his
shoulder. It was explained to him that this bone was touching a
nerve and the operation would relieve that problem. The
plaintiff said he was 'a bit scared' to have the operation and he
asked Mr Hone if he could guarantee it would be a 100 per
cent cure and the doctor said 'no'. The plaintiff said he was
also referred by Dr Cocchiaro to another doctor, Mr Atkinson.
Again he discussed with Mr Atkinson the desirability of this
operation and because of the eventual advice from Mr Atkinson, he
preferred not to go ahead with the operation. The plaintiff said
he had received WorkCover payments at the rate of $330 per week
for the period that he was away from work and they were
eventually reduced to $260. He said in the rest of that year he
had a 'fair bit' of time away from work and in 1988 was placed on
what WorkCover called a 'work hardening program'. He outlined
how this involved a gradual build up of hours a day. He said he
could not do more than four hours each day because of increase
pain in his shoulder. The plaintiff also said he undertook a
course with the CES. The plaintiff said he ceased working with
Union Street Produce because there were not light duties and
eventually decided not to continue with WorkCover payments which
were then about $260 a week because he could receive more moneys
by way of unemployment benefits. This occurred in about February
1990. The plaintiff said that since this time he has looked for
all manner of work, storeman, sales, spare parts, work of a light
nature. He produced a long list of people, firms and companies
to whom he had unsuccessfully applied for work. He outlined how
he continues to take analgesic tablets as prescribed by Dr
Cocchiaro which give him some relief, but he still continues to
suffer from headaches. The plaintiff was cross-examined over a
long period. As this cross-examination developed it was clear in
some areas of the evidence he had attempted to deceive me. He
was asked about his job at Tecalemit and was particularly asked
if anyone at Tecalemit had expressed concern about the time he
had taken away from work. He answered 'No'. He said he did not
remember having any unpaid leave except to get married. The
plaintiff was then asked whether he was sacked from Tecalemit.
He said, "yes". he was asked -
'Q The reason you were told was because of your excessive
absenteeism.
A. No.
Q. You deny that.
A. I took a few days off, yes.
Q. What was the reason you were given by the boss at
Tecalemit.
A. Because he didn't like me, for one.'
The records from Tecalemit were subsequently placed in
evidence and they show a number of days sick leave and, indeed,
that his termination date was November 1987 for excessive
absenteeism. On the notice of termination it was written,
'continued absenteeism after having verbal warning, then a
written warning'. I do not place too much emphasis on this area
of contradiction, but when seen as a whole with other matters
there is little doubt that the plaintiff has endeavoured to place
his case in the best light. The plaintiff admitted the
proprietor of Union Street Produce was a friend of his called Pat
Quattrocchi. He was asked -
'Q. This accident occurred on your second day of work for
him.
A. That's right.
Q. You're absolutely sure of that.
A. That's right.
Q. No doubts.
A. No doubts.
Q. Your second day of employment for Union Produce.
A. That's right.'
The plaintiff admitted that he had met Mr Quattrocchi some
two years before this time and was asked -
Q. In that intervening period of two years had you ever
worked for him at Union Produce.
A. No.
Q. You categorically deny that.
A. Yes.
Q. No suggestion that you were working there and not on the
books.
A. No.'
The plaintiff was asked if he assisted Mr Quattrocchi in his
company in 1985 or 1986 or 1987 and each time he said, "no".
The cross-examination of the plaintiff continued into the
second day. Early in the morning of that day, he was asked
about his employment with Mr Quattrocchi. He was then
asked-
Q. Is that still your evidence.
A. I denied it yesterday, I worked for him for a while, a
few days a week.
Q. You thought about it overnight.
A. And he told me that he couldn't put me on the books and
to keep my mouth shut.
Q. When I asked you questions yesterday you deliberately
lied.
A. No, I denied it because I didn't want to get him into
trouble, I didn't want to get myself into trouble, because it
was only two to three days a week when he needed me and he
told me not to tell anybody. I didn't want to get him into
trouble, didn't want to get myself in trouble.
Q. When did you decide to tell the truth, overnight of
yesterday.
A. Yesterday.'
The plaintiff then reiterated that he told a lie in his earlier
evidence because he did not want to get Mr Quattrocchi in trouble
or himself. The plaintiff then admitted that he had started
working for Mr Quattrocchi a short time after he had been
dismissed from his job at Tecalemit. The plaintiff has not
produced any taxation records verifying income or employment over
the past years. The plaintiff then outlined that he first
started working for Mr Quattrocchi a few weeks before Christmas
of the year prior to the accident, thus 1987. It was then put to
him that in fact he worked for Mr Quattrocchi before his job at
Tecalemit. The plaintiff denied this altogether. The plaintiff
married in September 1987. The plaintiff then agreed that he had
driven a truck for Union Street Produce and occasionally would be
at his father-in-law's house at Prospect. He agreed that before
Tecalemit he worked 'now and then' for Mr Quattrocchi. He said
this was part time, a few days a week, and he received a cash sum
for these efforts which he did not declare for tax purposes as
they were periods when he was receiving unemployment benefits.
In the course of his evidence I advised the plaintiff of his
rights and despite that warning he continued his evidence of the
cash amounts, which he said were $50 to $70 per two or three days
a week, he received when he worked for Mr Quattrocchi. It was a
very thorough and unrelenting cross-examination of the plaintiff
and to say the least he was far from impressive. On the final
afternoon I noted that he was not in court. I asked his counsel
if he would be in attendance and was told that 'he had enough'.
I could understand his attitude." 21. These words reveal the dishonesty of the appellant. It was an attempt to get a large award knowing he was not entitled to it. In September 1988 the appellant was complaining still of pain in the neck to the left hand side and pain in the upper part of the left arm. Dr Cocchiaro referred the respondent to Mr Hone. The respondent also consulted Mr Dobson and Mr Atkinson, both orthopaedic surgeons. 22. Dr Cocchiaro saw the respondent last before trial in June 1993. He then thought that there may have been some non organic cause for the pain. He sent the respondent to a psychiatrist. He was permitted to say in evidence that the psychiatrist reported that there was nothing mentally wrong with the respondent. The plaintiff therefore had pain from physical cause or no pain at all. Dr Cocchiaro did say that he thought the plaintiff would improve after the litigation concluded. His evidence was :-
"I think once he gets worries of court and insurance out
of the way, he will have to find himself some suitable light
duties and learn to live with his pain. I'm hoping that he
will be able to do without strong painkillers and I expect
that he will have continuing pain in his shoulder and neck." 23. The learned trial Judge said:-
"I have no doubt that as viewed by Dr Cocchiaro and Mr
Hone, there are factors other than organic in this young man's
presentation, but, there is no evidence before me to assess the
non-organic factors. All that is before me are the views of Dr
Cocchiaro that at the conclusion of these proceedings there will
be improvement in his overall well being." 24. It must be remembered that Dr Cocchiaro did expect that there would be some continuing pain in neck and shoulder. It is inherent in the reasons of the learned trial Judge that he accepted the evidence of Dr Cocchiaro. 25. The most important evidence was given by Mr Hone. The learned trial Judge accepted his evidence. It is important to notice that Mr Hone, Mr Dobson and Mr Atkins all recommended an operation to the shoulder. The respondent refused to have it. The learned trial Judge rejected the suggestion that he had failed to mitigate his loss. The surgeons could not guarantee success. But the true condition of the shoulder was that, in my opinion, surgery was not necessary to get the respondent back to work. That is not to say that he could work without experiencing pain. But he could get back to work without having surgery. In fact he had not worked since February 1990. 26. The appellant tendered reports of Mr G.A. Jose a reputable and competent orthopaedic surgeon who had twice examined the respondent in the interests of the appellant. He thought that as at April 1992 there was "no objective reason why he should not be back at the type of work which he was doing pre-accident". Nor did Mr Hone. But Mr Hone had an opinion about how the respondent would fare or would have fared at work. 27. In March 1993 Mr Jose could find "No objective evidence that there is any significant residual disability". 28. This is not quite the same as the evidence of Mr Hone and Dr Cocchiaro. I mention too that Mr Jose thought that the respondent should have had the surgery recommended by Mr Hone. 29. Let us see more of the opinion of Mr Hone. As I have mentioned his opinion was accepted by the learned trial Judge. In his first report date 7th March 1989 (part of Exhibit P1) Mr Hone wrote:-
"Examination showed that there was no tenderness over the
cervical spine. Movement of the cervical spine was normal in all
parameters. He was tender over the left acromio-clavicular joint
and he experienced pain on moving the left shoulder. He moved
the left shoulder poorly. X-rays taken on 31/5/88 of the
cervical spine showed an anterior osteophyte over the level of
the 5th cervical vertebra and an avulsion fracture. In the left
shoulder there was no abnormality but there was slight sclerosis
of the left acromio-clavicular joint. In my opinion this man was
suffering from a ligamentous injury of the cervical spine and a
subluxation of the left acromioclavicular joint. I advised him
to have further physiotherapy which he had and when I saw him on
28/11/88 he said that he still had pain in the neck and the left
shoulder. He said that he was still not much better. He was
having hydrotherapy which eased his pain. The examination showed
he had a full range of movement of the cervical spine but he was
still tender over the left acromioclavicular joint. I advised
him to continue with his hydrotherapy and when I say him on
17/1/89 he said he'd had three weeks off before Christmas because
of neck pain and left shoulder pain. He says he took the day
before I had seen him off because of pain in his left shoulder.
The examination showed range of movement of cervical spine was
restricted in rotation by 20 degrees to the left but normal to
the right. Lateral flexion was normal to the right and left and
flexion and extension were normal. He had full range of movement
of the left shoulder but tenderness over the acromioclavicular
joint. I injected his left acromioclavicular joint with 1
percent Lignocaine. I again saw him on 28/2/89 when he said
after the injection he was relieved of the pain for a short while
but the pain had now returned. He was still working. He was
still tender over the left acromioclavicular joint and he
experienced pain on carrying out the throwing motion with the
left arm. This man is suffering from a painful left
acromio-clavicular joint following a subluxation of the left
acromio-clavicular joint. The treatment of this is to excise the
distal end of the left clavicle as this will eradicate the joint
and the pain and give him complete relief. At the present time
he is deciding whether he will have something done to it and I
once again injected his left acromioclavicular joint with local
anaesthetic. In answer to your specific questions: I have
described the injuries. The injuries have stabilised but he
needs further treatment for his left acromioclavicular joint.
The treatment is an excision of the distal end of the left
clavicle. He is not aggravating his injuries by continuing to
work. He has a residual disability at the moment which would be
5 percent loss of function of his left shoulder as a whole. His
condition could be relieved almost completely by excision of the
outer end of the left clavicle." 30. Let us take stock there, at March 1989. This report, and oral evidence given by Mr Hone, is capable of proving that the accident caused some disability to the respondent. He was at work then. But he had tenderness of the shoulder and some handicaps in its use. Mr Walsh made much of the fact that Mr Hone said that the injuries had stabilised. But despite this he still said that treatment was needed. That treatment was surgery. And on Mr Hone's evidence at March 1989 the respondent had a 5 percent loss of function of the left shoulder. I should mention that I do not place much significance on "percentages". But the point is that there was some persisting result of the injury. And the respondent had had some time off. 31. In his report of 23rd October 1990 Mr Hone reported that the respondent said he had not worked since February 1990. He had been put off. The respondent says that he could not do the job because there was pain in the left shoulder. Of course it behove the learned trial Judge to regard anything said by the respondent to Mr Hone with suspicion. I see no reason to think that the learned trial Judge failed to appreciate this point. 32. Mr Hone wrote:-
"Examination showed he had superficial tenderness over the
whole of the neck. Range of movement of the cervical spine was
normal in all directions. He complained of pain on all movements
of the cervical spine. Movements of the left shoulder were
normal but he experienced a lot of pain on moving the left
shoulder and resisted all movements of the left shoulder. The
pain in his left shoulder was in the shoulder joint and ran up
into the base of the neck and also down the left arm. There was
tenderness over the left acromio-clavicular joint. This man
presents with the same type of signs as he would have previously
but now there is much more emphasis on his condition because of
the long time he has been off work. This emphasis is caused by
other factors rather than physical ones. In my opinion this man
could be fit to return to his old job without pain if he had a
simple operation but he does not want this. I can conclude from
this that there is either nothing wrong with him and he should be
working or that he is genuinely frightened of the operation. If
he had the operation he would still have some problems with his
cervical spine where he also had a ligamentous injury. In answer
to your particular question, I have described the injuries he has
had, his injuries have stabilised because he is not having any
treatment. Further medical treatment and surgical treatment is
indicated but he will not accept this. There is no reason to
persist in this direction. He would not aggravate his injuries
if he continued his work. He has a residual disability because
of his cervical spine injury and his left shoulder injury. I
would rate these as a permanent residual disability of 5 percent
loss of function of his body as a whole." 33. In his final report of the 21st may 1993 Mr Hone wrote:-
"He certainly has a residual disability because of the injury
to his cervical spine but his perception of this has been made
greater by the way he has treated it. In my opinion he has a
permanent residual disability of the cervical spine of 7 percent
loss of function of the spine as a whole. I did not state this
in my first report, I only stated that he had an injury to his
shoulder. He also has a problem with his shoulder in the fact
that he has damage to the left acromio-clavicular joint and signs
of impingement in the left shoulder joint. This is a slight
disability. He could have treatment which he hasn't had. In my
opinion it is not a great disability. I believe he has a
permanent residual disability of the left shoulder of 5 percent
loss of function." 34. I emphasise the words "he certainly has a residual disability ..." and I emphasis the last sentence of the quotation from Mr Hone's last report. In evidence Mr Hone acknowledged that the respondent had "persisting pathology in his neck prior to the day of the accident" (words of the learned trial Judge). And Mr Hone also referred to earlier damage of the cervicular spine. 35. Mr Hone certainly said, as Mr Walsh emphasised, that the plaintiff was capable of work and work of the type which he had done in the past. But it would cause some pain and he would need to avoid doing anything to aggravate the neck. The learned trial Judge made an accurate summary of the evidence of Mr Hone. And I emphasise that Mr Hone and other surgeons thought surgery desirable to the shoulder. 36. There can be no successful challenge to the acceptance of the evidence of Mr Hone and Dr Cocchiaro. 37. Some evidence capable of assisting the plaintiff's cause was given by his wife. Of this the learned trial Judge said:-
"Mrs Puntillo gave evidence that the plaintiff still has
some problems with his neck and shoulder and sometimes he sleeps
on the floor. However, he does some work around the home, like
mowing the lawn, and after such work, says his shoulder is
hurting, or, 'it's worse', or 'it's better', and he takes tablets
for his condition. Her view was that he seems to be frustrated
by his problems and, consequently, became depressed. I accept
her evidence." 38. The learned trial Judge put aside some incorrect answers which the respondent's wife had earlier given to interrogatories. He was entitled to do so. He was entitled to accept the evidence of Mrs Puntillo. The learned trial Judge cannot have ignored the possibility of false evidence on her part given for the support of her husband. Yet he accepted her evidence. So the learned trial Judge found that things like mowing the lawn caused pain to the respondent. In offering his reasons for the assessment the learned trial Judge said:-
"DAMAGES Pain and Suffering This accident occurred in 1988
and the relevant multiplier is 1,070. I believe Mr Hone has
accurately summarised this young man's injuries. He is the
surgeon who has seen the plaintiff over the years. There was
some disruption of his pre-existing problems by this accident and
the injury has to be seen in that light. However, he did suffer
this sprain type injury to his neck which made his neck problems
symptomatic. The plaintiff is one to maximise his problems. He
saw his doctor the following day. He is the type of person who
would have seen his doctor if he had any prior problems with his
neck. If he had problems with his neck at GMH or Tecalemit, I
have no doubt he would have immediately sought medical treatment
and advice. The plaintiff underwent a long period of
physiotherapy in May 1988 and June 1988. However, I believe his
problems would have stabilised certainly early in 1989. The
aggravation of his problems has to some extent contributed to his
residual disability, but, clearly accepting Mr Hone's view the
permanent disability is minor. I accept Mr Hone's evidence that
with heavy work, work of a nature he described with the forward
movement of the hands, may well aggravate his problems, but the
same will eventually settle down and he can carry on work like he
did in the past, but obviously taking care. I have allowed in
this amount a sum for the pain and suffering which will occur
when he exerts himself in his future employment. Doing the best
in all the circumstances, I propose to allot the numeral 8 for
his pain and suffering, thus giving a figure of $8,560. Economic
Loss This is a claim limited to past loss. The plaintiff has
given vague evidence about times away from work with nothing to
support this evidence. The plaintiff has received WorkCover
payments over a long period and more recently unemployment
benefits. Doing the best I can in all the circumstances, I
propose to fix a lump sum of $8,000 for past economic loss.
Special Damages I have been told the only outstanding special
expenses are in the sum of $410.40. The other expenses totalling
$2,251.20 and $385 in hospital expenses have been paid by
WorkCover. A schedule has been placed before showing payments
which have been made by WorkCover during the years 1988, 1989 and
1990. In the main they are expenses for attendances upon Dr
Cocchiaro. Consequently, I fix the special damages in the sum of
$410.40. Interest I propose to allow the sum of $3,000 for
interest on his past economic loss." 39. It may be that the multiplier of 8 is generous to the plaintiff. But I cannot see any error in its selection. The injury at the time of trial still caused the respondent pain and was likely to continue to cause some pain. The trial was in August 1993. Lack of care in doing heavy work would aggravate "his problems". The pain was not, on the evidence of Mr Hone and Dr Cocchiaro, likely to vanish completely. It was not severe pain but it continued. It did not prevent the plaintiff's having the capacity to work even at heavy work but it would call upon him to show care and avoid doing anything to aggravate the injury. I do not think the challenge to the numeral 8 succeeds. 40. The evidence of economic loss was not only vague on some issues but unsatisfactory and in part untruthful in the mouth of the respondent. But he did have time away from work. A precise period was not proved. More importantly there is no evidence to contradict his evidence about extensive efforts to get work. The learned trial Judge remarked on this in his reasons. He spoke of the long list of places where the respondent had unsuccessfully inquired for work. He did not say whether he accepted or rejected this evidence. I cannot think that he regarded it as false. He would have so stated had he so thought. The efforts to get work are important. The respondent could work but with some pain, not much, but some. He needs to take care in some movements. He is therefore, handicapped on the labour market. He is not completely fit for heavy work. If he reveals to a prospective employer that he has some pain in the shoulder and neck as a result of a road accident he would probably not get the job. If he does get a job he may be put off if he is perceived to be taking some extra care of himself. It is the reduction in the chance of getting work, and in the chance to exercise his earning capacity which is important. 41. The respondent set out to get a very large award. He had not worked since February 1990. The trial was in August 1993. Any regular work in a period of three years and six months would have produced much more than $8,000.00. The plaintiff was seeking to get very much more than $8,000.00. I do not suppose that a figure as low as $8,000.00 ever crossed his mind. It is a modest award once the evidence of Hone. Cocchiaro and Mrs Puntillo is accepted. It is a figure reached by assessment not by calculation. The learned trial Judge noticed the payment by WorkCover. The deception of the respondent was revealed. But that did not negate some injury and some modest, even minor, disability. The disability was there and persisting. Indeed in strict principles something perhaps should have been awarded for the loss of chance to get work in the future. But it is impossible to say that the allowance of $8,000.00 was manifestly excessive or that it has been awarded on any wrong principle. 42. I can see no fault in allowing $3,000.00 for interest. 43. I would dismiss the appeal. I would allow the cross-appeal. The learned trial Judge fell into error in my opinion in not allowing the expenses mentioned in the cross-appeal because they had been paid by WorkCover. Mr Walsh acknowledged that the respondent would be required to pay back WorkCover. He said that the respondent did not deserve to be awarded the amount paid for medical and hospital expenses by WorkCover. I cannot agree. There is no reason to regard the frequent consultation with Dr Cocchiaro or any of them as excessive or unreasonably held. Dr Cocchiaro does not emerge from the evidence as a doctor who is over sympathetic to his patient. The respondent had a measure of persisting pain. It was reasonable to see the doctor when he did and any other accounts are not shown to be unreasonable. The sum of $2,636.20 expenses for doctors and hospitals should be allowed. The award should be increased by 85 percent of $2,636.20 which is $2,240.77. The Judgment should be increased to $19,215.61.
JUDGE2 KING CJ I agree that the appeal should be dismissed. I also agree that the cross-appeal should be allowed and the amount of the judgment increased to $19,215.61. 2. I agree with the reasons of Bollen J and Millhouse J.
JUDGE3 MILLHOUSE J These are appeal and cross appeal from an assessment of damages by Judge Lowrie. Liability had been agreed before trial: the appellant accepted 85 per cent responsibility for the motor accident in which the respondent was injured. 2. It occurred on 23 May 1988. The plaintiff was then about 25 years old. He injured his neck and shoulder. The next day he went to his doctor, Dr Cocchiaro. Dr Cocchiaro treated him for some time and referred him to Mr Michael Hone the surgeon. Later the respondent saw other medical practitioners as well but the learned trial judge relied on the opinions of Dr Cocchiaro and of Mr Hone. In his Reasons he has quoted from two of Mr Hone's reports:-> That of 7 March 1989:-
"He is not aggravating his injuries by continuing to work.
He has a residual disability at the moment which would be 5
per cent loss of function of his left shoulder as a whole.
His condition could be relieved almost completely by excision
of the outer end of the left clavicle." That of 23 October 1990:-
"In answer to your particular questions, I have described
the injuries he has had, his injuries have stabilised because he
is not having any treatment. Further medical treatment and
surgical treatment is indicated but he will not accept this.
There is no reason to persist in this direction. He would not
aggravate his injuries if he continued his work. He has a
residual disability because of his cervical spine injury and his
left shoulder injury. I would rate these as a permanent residual
disability of 5 per cent loss of function of his body as a
whole." 3. Mr Steven Walsh QC for the appellant, the defendant in the District Court, does not dispute the learned judge's findings but complains that the assessment of eight on the scale for pain and suffering (coming to $8 560.00) and the allowance of $8 000.00 for past economic loss are too high. 4. The only other heads under which His Honour assessed damages were special damages $410.40 and interest $3 000.00. The appellant doesn't challenge either but the respondent complains - this is his only complaint in the cross appeal - that the learned judge has made a mistake with the special damages - the figure should be $3 046.60. 5. The thrust of Mr Walsh's argument is that the respondent's injuries were minor and had stabilised by early 1989: there was no reason why he should not have been able to work by then: in any case the respondent was a liar, a perjurer, as was his wife and there was no evidence to support the assessment of $8 000 for past economic loss: the learned judge should have sent the papers on to the Attorney-General - he did not and we should "do something" about it. 6. There is no doubt that the respondent did lie. The learned Judge found as much:-
" Although there were many aspects of the plaintiff's
evidence which were totally unsatisfactory, indeed, a number
when he gave misleading evidence ....."
" The plaintiff was cross-examined over a long period. As
this cross-examination developed it was clear in some areas
of the evidence he had attempted to deceive me."
" .... there is little doubt that the plaintiff has
endeavoured to place his case in the best light......"
" It was a very thorough and unrelenting cross-examination of
the plaintiff and to say the least he was far from
impressive." 7. Mr Walsh expressed his indignation and provided references in the evidence to the respondent's "untruthful evidence". The references first are to the reasons why the respondent left a job at Tecalemit - he said he left because he got married and wanted to look for a better job whereas he was sacked for absenteeism. Secondly the references are to previous work for a man named Quattrocchi at Union Street Produce - the respondent said he started there only the day before the accident whereas under cross-examination he admitted having worked on and off for the man for some time: his wife backed up the respondent's original evidence on this after the respondent had acknowledged it was false. Thirdly, the references are to undeclared income - the respondent admitted that he had been getting "black money" paid in cash but not disclosed to the tax people. (At trial the respondent had produced no income tax returns nor did he produce any evidence to support his estimates of his earnings.) 8. All this is so but the learned judge was aware of it and formed the impressions of the respondent which I have set out. 9. Mr Richard Evans for the respondent reminded us of what Brennan, Gaudron and McHugh JJ said in DeVries v Australian National Railways Commission (1993) 67 ALJR 528 at 531:-
" More than once in recent years, this Court has pointed out
that a finding of fact by a trial judge, based on the credibility
of a witness, is not to be set aside because an appellate court
thinks that the probabilities of the case are against - even
strongly against - that finding of fact. If the trial judge's
finding depends to any substantial degree on the credibility of
the witness, the finding must stand unless it can be shown that
the trial judge 'has failed to use or has palpably misused his
(or her) advantage' or has acted on evidence which was
'inconsistent with facts incontrovertibly established by the
evidence' or which was 'glaringly improbable'." 10. The Trial judge in this case has not committed any of the sins described in the above quotation. Mr Walsh could not suggest that he had. His Honour saw the witnesses and formed his opinions of them, relied on medical evidence before him and came to his conclusions. 11. He summarised his conclusions in this way:-
" .. Mr Hone has accurately summarised this young man's
injuries. He is the surgeon who has seen the plaintiff over the
years. There was some disruption of his pre-existing problems by
this accident and the injury has to be seen in that light.
However, he did suffer this sprain type injury to his neck which
made his neck problems symptomatic. The plaintiff is one to
maximise his problems.......... I believe his problems would
have stabilised certainly early in 1989.
The aggravation of his problems has to some extent contributed
to his residual disability, but, clearly accepting Mr Hone's view
the permanent disability is minor.
I accept Mr Hone's evidence that with heavy work, work of a
nature he described with the forward movement of the hands, may
well aggravate his problems, but the same will eventually settle
down and he can carry on work like he did in the past, but
obviously taking care." 12. Mr Walsh's main attack was on the assessment of past economic loss. His Honour summarised his view on this:-
" The plaintiff has given vague evidence about times away
from work with nothing to support this evidence. The
plaintiff has received WorkCover payments over a long period
and more recently unemployment benefits.
Doing the best I can in all the circumstances, I propose to
fix a lump sum of $8 000 for past economic loss." 13. $8 000 for over three years, (the period up to trial when the respondent was out of work), is little enough really, less than $3 000 a year. The judge thought there had been loss even though the evidence to quantify it was unsatisfactory: the respondent had suffered some limitation of range of employment. I do not think we should disturb the assessment. 14. As for the pain and suffering Mr Walsh's attack on it was less strong; perhaps the assessment is on the generous side but it is not so high as to justify interference. 15. I come to the cross-appeal. This is what the learned trial judge said:-
" Special Damages I have been told the only outstanding
special expenses are in the sum of $410.40. The other expenses
totalling $2,251.20 and $385 in hospital expenses have been paid
by WorkCover. A schedule has been placed before (me) showing
payments which have been made by WorkCover during the years 1988,
1989 and 1990. In the main they are expenses for attendances
upon Dr Cocchiaro.
Consequently, I fix the special damages in the sum of
$410.40." 16. With great respect to him, I think he has overlooked that, whatever the damages the respondent be awarded, he will have to repay to WorkCover the amounts it has paid on his behalf. They should have been included in the assessment. 17. Mr Walsh suggested that perhaps the action should be remitted to the trial judge precisely to assess the specials: although there is a schedule (headed "'Claim Report' for External Agencies" apparently prepared by WorkCover) yet some of the items may not be properly included as specials. I hesitate to send the matter back for what could only be comparatively small adjustments: I adopt what the Chief Justice said in arguendo to Mr Evans:- " I suppose you would say that if we accept your argument that he suffered these injuries and that they continued until the date of trial, and there is no evidence of any other injuries which would have brought about treatment, that really this treatment must have been the result of the injuries sustained in the accident and that in the absence of some other evidence that suggests the contrary ought to be accepted." 18. It means that the amount allowed for special damages should be increased by $2 636.20 to make a total of $3 046.60. 19. That would make the total damages $22 606.60 instead of $19 970.40. Eighty-five percent of $22 606.60 is $19 215.61. 20. Finally I mention again Mr Walsh's plea that "something" be done about the respondent's perjury. The perjury was not a ground of appeal: there is nothing we have to decide about it. Apparently the trial judge has taken no action. As the Chief Justice said during argument the appellant, realistically the SGIC, can take what action it considers appropriate. There is no need for the Court to do anything. 21. I suggest that the appeal be dismissed, the cross-appeal allowed and the judgment for the respondent be increased from $16 974.84 to $19 215.61.
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