Rauber, A v Samoty, S
[1988] FCA 427
•8 May 1988
C A T C H W O R D S
DAMAGES - apoeal agalnst adequacy of awards for general damaqes and loss of earnlng capaclty - no new question of prlnclple
Browne v. Dunn ( 1 8 9 4 ) 6 R. 6 7 (H.L.)
Purkess -- v. Crlttenden ( 1 9 6 5 ) 1 1 4 C.L.R. 1 6 5 Watts v. Rake ( 1 9 6 0 ) 1 0 8 C.L.R. 1 5 8
On Appeal from a slnqle Judge of the Supreme Court _ - -
- of the Australlan - Capital Territory - ARMIN RAUBER V.
Canberra. STANISLAW SAMOTY -- A.C.T. No. G90 of 1 9 8 7 Coram: Gallop, Neaves and Spender JJ.
Date : 5 August 1 9 8 8 . IN THE FEDERAL COURT OF AUSTRALIA )
I
AUSTRALIAN CAPITAL TERRITORY 1
) No. ACT G90 of 1987
REGISTRY
DISTRICT
) )
| DIVISION | GENERAL | 1 |
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL
TERRITORY
BETWEEN: ARMIN RAUBER -
Appellant and Cross-Respondent
(Defendant)
AND : STANISLAW SAMOTY Respondent and Cross-Appellant
(Plalntlff)O R D E R
Judqes Maklng Order - : Gallop, Neaves and Spender JJ.
_ - Date of Order : 5 August 1988. - -- Where Made : Canberra.
THE COURT ORDERS THAT:
( 1 ) The plalntlff's cross-appeal be dismissed wlth costs.
(2) The defendant's appeal be dlsmlssed with costs.
- Note: Settlement and entry of orders 1 s dealt with In
Order 36 of the Federal Court Rules. - - IN THE FEDERAL COURT OF AUSTRALIA ) )
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G90 of 1987
REGISTRY DISTRICT ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE
THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ARMIN RAUBER - Appellant and Cross-Respondent
(Defendant)
AND : STANISLAW SAMOTY -
Respondent and Cross-Appellant
(Plalntiff)
_ _ _ Coram: Gallop, Neaves and Spender JJ. - - Date: 5 August 1988. REASONS FOR JUDGMENT
THE COURT:
Thls 1s an appeal by the plalntiff, Stanlslaw
Samoty, agalnst the adequacy of an assessment of damages
made by the Supreme Court of the Australlan Capltal Terrltory (Mlles C.J.).
The plalntlff suffered ln]ury on 28 October 1979
when the vehlcle In which he was travelllng as a passenger
overturned near Bunqendore In New South Wales. He had been
wearlng a seatbelt and was assisted by the driver from the
vehlcle by means of the rear hatch door.
The I s s u e s o f l l a b l l l t y f o r n e g l l g e n c e , v o l e n t 1
a n d c o n t r l b u t o r y n e q l l g e n c e were all r e s o l v e d I n t h e
plaintiff's f a v o u r .
On 17 D e c e m b e r 1 9 8 7 , t h e l e a r n e d p r l m a r y ~ u d q e
a s s e s s e d d a m a g e s I n t h e sum o f $ 1 5 4 , 4 8 7 . 0 4 , m a d e u p as f o l l o w s :
| $ 2 5 , 0 0 0 . 0 0 | s u f f e r l n q | a n d | P a l n | |||
| ||||||
| ||||||
|
e x p e n s e s 1 , 0 0 0 . 0 0 m e d l c a l F u t u r e
2 , 0 0 0 . 0 0 F u t u r e m e d l c a t l o n
I n t e r e s t 8 , 5 7 5 . 0 0
On t h e f o l l o w l n q d a y , h l s H o n o u r h e a r d t h e p a r t l e s
f u r t h e r a n d o r d e r e d t h a t I n t e r e s t b e a w a r d e d o n p a r t o f t h e
a w a r d f o r pas t loss o f e a r n l n q c a p a c l t y , 1.e. o n $ 4 8 , 1 8 8 . 9 4
a t 1 4 % r e d u c e d b y o n e h a l f . T h e f l g u r e o f $ 4 8 , 1 8 8 . 9 4 was
t h e d l f f e r e n c e b e t w e e n t h e a s s e s s e d p a s t loss of e a r n l n g
c a p a c i t y of $58 ,412 .04 and an a m o u n t o f $ 1 0 , 2 2 3 . 1 0 r e c e l v e d b y t h e p l a l n t l f f a s soc la l s e c u r i t y p a y m e n t s . T h a t I n t e r e s t
componen t amoun ted t o $16,182.20 whlch when , added t o t h e
p r o p o s e d f l g u r e of $ 1 5 4 , 4 8 7 . 0 4 , q a v e t h e sum o f $170 ,669 .24 . Judgmen t was e n t e r e d f o r t h e p l a l n t l f f €or
t h a t s u m , w i t h costs.
T h e u n s u c c e s s f u l d e f e n d a n t a p p e a l e d a g a l n s t t h e
a w a r d o f d a m a g e s as b e l n q u n r e a s o n a b l y h l g h , b u t t h e a p p e a l
was a b a n d o n e d . T h e p l a l n t l f f c r o s s - a p p e a l e d o n t h e q r o u n d t h a t t h e d a m a g e s a w a r d e d were I n a d e q u a t e . I t was s u b m l t t e d
t h a t t h e a w a r d f o r loss o f e a r n l n g c a p a c l t y f o r t h e f u t u r e
was too low a n d t h a t t h e a m o u n t a w a r d e d b y way o f d a m a g e s
f o r p a l n a n d s u f f e r l n g was I n a d e q u a t e .
I t m u s t b e s a l d a t t h e o u t s e t t h a t t h e q u e s t l o n o f
t h e a s s e s s m e n t o f d a m a g e s was o n e o f p a r t l c u l a r d l f f l c u l t y . The evldence of the drlver of the vehlcle was
that, when he asslsted the plalntlff from the vehlcle, hls
leg appeared to be badly cut below the knee, that he had
difflculty breathlnq and he was "golnq Into shock". He was,
however, conscious, talklng and walklng. On admlsslon to
the Queanbeyan Dlstrlct Hospltal, he was said to be alert
and found to have sustained a laceratlon to the left kneecapand abraslons to the forehead and was complalnlng of
tenderness across the chest. X-rays of the skull, chest and rlbs were found to be normal and the hospltal records
lndlcate he was ambulatlng. He remalned In hospltal untll 3 1 October 1979 . Thls 1s to be contrasted wlth the plalntlff's account that he had lost consclousness In the accldent; that he regalned consclousness In hospltal some days later, "screamlng wlth paln"; and that, whllst In
hospltal, he was conflned to a wheelchair. The trial judge expressed something of the
dlfflculty of the assessment of damages confrontlng hlm. He sald :
"The plalntlff's credlt as a wltness both In Court and In hls accounts to the many doctors who have seen hlm
over the years 1s the m a ~ o r
dlfflculty. I cannot
recall havlng seen a person In a clvll case behave In
such a blzarre fashlon In the courtroom. Such conduct has proved a dlfflcult questlon also for the doctors. The medlcal assessment of hls case 1s compllcated by whether the plalntlff's symptoms can be accepted and lndeed to some extent whether those seeklng to assess
hlm feel sympathy for hlm OK otherwise."
Hls Honour found that the plalntlff lost no more
than a week from work lmmedlately after the accldent and
that he dld not seek medlcal attentlon aqaln untll 28 July
1980, when he complalned to Dr Roach, his general
practitioner, of an irrltable scar over hls left patella and
aches In the leqs and shoulders. He made simllar and further complaints on 6 August 1980, when he was very exclted and talkative, demandlnq to see a speclallst and
blaming all h l s troubles on the accldent. He made slmilar complalnts and behaved In a slmllar way on 10 September
1980 . Dr Roach was unable to persuade hlm that hls physlcal lnjurles were essentlally mlld.
Dr Roach felt that the
plaintiff had developed an acute nervous aqltatlon whlch "almost amounted to mild psycho-neurosls" which was
"presumably .. . mostly If not entlrely due to the accldent".
The Calvary Hospital records suggest that Dr Roach
had observed that, before the accldent, the plalntlff had
tended to exaggerate paln when he vislted the doctor as hlsgeneral practltloner.
The plalntlff changed to another general
practltloner, Dr Carter, on 12 September 1980 , and has
continued to see hlm slnce. Dr Carter characterlsed h1s role as actlng as "malnly a repeat p111 prescrlber" when the
plalntlff returns from visitinq other doctors.
He was referred on 25 September 1 9 8 0 to a
consultant physlclan, Dr Lonq, whose examlnatlon falled to
dlsclose any physlcal cause for the symptoms. Dr Long felt
that Mr Samoty's behavlour in the surgery was such that he
was mallngerlng.On 5 February 1981, he was referred to Dr Truman, a psychlatrlst, who has contlnued to treat the plalntlff.
He has, In fact, seen him more than 50 tlmes. The plalntlff's condltlon appeared sufflclently serlous to have
hlm hospitallsed In Calvary Hospltal, where he was seen by a
number of doctors who concluded that the plalntlff was
sufferlng from a severe emotional disorder brought about by
the trauma of the motor vehlcle accldent and presentlng as a
mixed anxlety depresslve hypochondrlacal neurosis.
Dr Truman agreed wlth that concluslon.Hls Honour found that the plalntlff's condltlon had not appeared to have changed essentlally slnce the
mlddle of 1981, although there were some chanaes In lntenslty and emphasls. Varlous medlcatlon treatments were attempted, but wlth no slgnlflcant long-term result.
In October 1984 , the plalntlff was once agaln
admltted by Dr Truman to Calvary Hospltal, where he remalned for about a week. On 16 August 1985 , he arrlved unannounced at Calvary Hospltal. He appeared at that tlme to be In a
very agltated, paranold state. Dr Truman was at the hospltal at that tlme. The plalntlff had been referred by h l s sollcltors to a Dr Ferguson, who then descrlbed hlmself as a
"medlco-legal assessor". Dr Ferguson flrst saw hlm on 7 December 1982. H1s Honour noted:
"...lt appears that soon after the plalntlff was referred to hlm, Dr Ferguson took over to a substantlal
extent the management of the plaintiff's treatment."
Hls Honour concluded that Dr Ferquson's assessment was "clearly based upon a total acceptance of what he was
told by the plalntlff". It 1s apparent that hls Honour regarded the evldence of Dr Ferguson wlth conslderable
reservatlon.
Hls Honour sald In regard to the large number of doctors who gave evldence concerninq
the plaintlff, that:
"Many of the doctors tenderlng advice In the present
case have done so on an accepted history that the
plalntlff suffered loss of consciousness over a period
of some days lmmedlately following hls Injury. Thls,however, 1s not supported by the ob~ectlve evldence."
He cont lnued :
"The present case also presents to an extraordlnary
degree a problem of credlbility. The concluslons ofsome of the doctors are based upon a total acceptance
of hls complalnts. The conclusions of others are based on a re]ectlon of what he has had to say or at least conslderable scepticlsm, and that is based partly on the blzarre presentatlon of the plalntlff and of hls conslderable lack of co-operatlon."
Hls Honour specifically rejected that the
plalntlff suffered braln damage as a result of the accident. Confronted wlth thls array of medlcal vlews, hls
Honour made speciflc comment concerning the observatlons of two of the medlcal practltloners. He sald:
"...Dr Chandran makes the perceptive remark that 'the organic Illness has been relnforced by varlous people that he has seen and nobody has of course the courage to tell M r Samoty that there 1s a large psychlatrlc
component. "
He later sald:
"In a report from Dr Truman of 4 November 1985 there 1s a sentence whlch, I thlnk, with one qualification, accurately sums up the sltuatlon:
'There was a tendency to use a lot of hyperbole
whlch I do not think was exaggeration but lust his
attempt to emphasise how much dlstress he was
sufferlng. '
If the word 'mallngerlng' replaces the word
'exagqeratlon', I thlnk that thls is accurate. There
1s no doubt In my mlnd that the plalntlff does In fact
exaggerate, and grossly exaggerates, but thls 1s part
of the ongolng problem."
He sald that the medical assessments depended, to
a conslderable extent, on assumptions, some of which were
not made out by the evldence.
l.
There was, In addltlon, a conslderable amount lay evldence at the trlal relevant to the questlon
of
of
damages.
The concluslon of the trlal judge was:
"I flnd that the plalntlff's mlnor physlcal ~nlurles
occurrlng as they dld to a person with tendency towards
hypochondrlacal lrrltablllty, susplclousness and
eccentrlclty precipltated an emotlonal and
psychologlcal condltlon whlch has aggravated all those characterlstlcs." As to the worklng hlstory, the trlal ludge found
that the plalntlff returned to work a week after the
in~ury. He was able to work full-tlme untll the beglnnlnq
of July 1981. Hls condltion was such as to necessltate several weeks ln hospltal In the mlddle of 1981 . He then worked part-tlme until about March 1 9 8 3 and he has not
worked slnce then. The trlal ludge sald "I thlnk heprobably became unemployable In July 1983 , and certalnly so
from 1 9 8 5 " , and by 1 9 8 5 hls condltion "appeared to be borderlng on the psychotic". The trlal judge sald of the
appellant, as at September 1983 :
"It 1s obvious to my mlnd that by that tlme the plalntlff had become convinced that all h1s troubles
had been conflrmed by the doctors, that he was not
golng to get any better, and that everythlng was due to the accident. "
The flndlng of most slgnlflcance to the appeal 1s
as follows:
'I thlnk he wlll contlnue to be unemployable for some
tlme into the future, but the dlaqnosls and prognosls
of his condltlon 1s so beset wlth difflcultles and
hypotheses that It 1s lmposslble to be confldent.
However, I am not satlsfled on the balance of
probabllltles that If he continues to be unemployable
after a lapse of two years or s o , then hls
unemployablllty can be materlally related to the
accldent. I thlnk that there must have been a good
chance that he could have become llke he 1s without the
accldent. I am of the vlew that I have to allow for
the contingency that hls symptoms wlll contlnue much as
they are beyond that perlod and to allow for the
flndlng that If they do there will be some part of the
further perlod at least In whlch the acczdenr plays a
part but a dlmlnlshlng part."
It was submltted on behalf of the plazntlff that
the trial had been conducted by the plaintiff on the basls
that he had suffered a severe psychlatrlc dlsorder as a result of the accldent whlch was permanent, and that the
defendant had conducted the trlal on the basls that the
plalntlff was a mallngerer and that any psychlatrlccondltlon he was presently experlenclng was unrelated to the
accldent. It was therefore submltted that, In the absence of any specific suggestlon that hls present conditlon would
be other than permanent or that, Independently of the
accldent, he would have been reduced to It, It was notproperly open to the trial judge to flnd as he dld.
Rellance was placed on the prlnclple of Browne v. Dunn - _ -
( 1 8 9 4 ) 6 R. 67 (H.L.) and _ - - Purkess v. Crlttenden ( 1 9 6 5 ) 1 1 4
C.L.R. 1 6 5 explalnlng Watts v. - - Rake ( 1 9 6 0 ) 1 0 8 C.L.R 158. Moreover, It was submltted that In the llght of the flndlngs as to the acceptablllty of the evidence of varlous of the
wltnesses, the trlal ~ u d g e was constralned to conclude that the plalntlff's psychlatrlc condltlon was caused by the accldent and was permanent.
On analysls, the plalntlff's submzsslons come down
to the submlsslon that the evldence before the trlal judge
was such that he was obliged to conclude that the plazntlff
was, as a result of the accldent, permanently unemployable:
it was not open to the trlal judge to conclude, as he dld,
that:"...I am not satlsfled on the balance of probabllltles that If he contlnues to be unemployable after a lapse of two years or so, then hls unemployab1llty can be
materially related to the accldent."
In the context of both llmbs of the plalntlff's submlsslons on thls Issue, the questlon
of onus becomes very
real. It wlll be remembered that on the questlon of the
future employablllty of the plalntlff, the trlal ludge sald:
"...the dlagnosls and prognosis of hls condltlon 1 s so beset with dlfflcultles and hypotheses that it 1s
mposslble to be conf ldent. "
In our vlew, It very much overstates the posltlon
to say that the trlal ludge "accepted" the evldence of any
partlcular wltness as to the conditlon of the plalntlff.That hls Honour referred to Dr Corry's "useful summary of the plalntiff's complalnts", gave a quallfled adoptlon of the vlew of Dr Truman as to whether or not the
plalntlff was mallngerlng, and accepted the descrlptlon by
Mr Petroni of the nature of the plalntlff's psychologlcal
condltlon, simply does not lead lnexorably to the concluslon
that the plalntlff was sufferlng from "a permanent condltlon
caused by the accldent", as was the thrust of thesubmlss1ons by senlor counsel for the plalntlff.
Moreover, the conduct of the contendlng partles at
the trlal dld not lead to a sltuatlon where hls Honour was faced wlth a slmple cholce between black and whlte. The extent of the plalntlff's present mental condltlon, any pre-dlsposltlon to such an Illness, whether In fact the accldent Inltlated or aggravated the mental Illness from
whlch the plalntlff is presently sufferlnq, the proqnosls of that condltlon and the extent to whlch the exlstence of such dlsease at tlmes In the future can properly be attrlbuted
to the accldent In 1979, were but some of the dlfflcult
Issues whlch the trlal ~ u d g e was called upon to resolve. His Honour was obllged to reach his conclusions on the whole of the evldence. A readlng of hls reasons indicates that he dld that with sensltlvlty and care and, ln partlcular, gave reasons why the welght properly to be glven to the evldence of medlcal witnesses had to be quallfled.
In our vlew thls is a case, of a l l cases, where
the advantage of a trial judge In seelnq the plalntlff and
the other wltnesses, lncluding the medical wltnesses, has to
be properly acknowledged. The trlal judge's concluslon' l . . . the diagnosis and prognosls of hls condltlon 1s so
beset wlth dlfflcultles and hypotheses that It 1s lmposszble
to be confldent" was an assessment open to him on the
materlal before hlm. That he was unable on that materlal toconclude that the plaintlff was permanently unemployable
cannot, we thlnk, falrly be Impeached. Nor do we thlnk that, havlng regard to the onus that lles on a plalntlff in a clvll trlal clalmlng damages, the concluslon by the trlal
-judge, VIZ. "I am not satlsfled on the balance of
probablllties that if he contlnues to be unemployable after
materlally related to the accldent", was not also falrly a lapse of two years or so, then hls employablllty can be open on the evldence.
Slnce these concluslons, which formed the basls of
the trlal -judge's assessment of the amount properly to be
awarded for the future loss of earnlng capacity, are not
shown to be erroneous, the plaintlff Ealls on that aspect of
the appeal.As to the amount for pain and suffering, it was
simply submitted that, on the evldence, the amount of
$25,000.00 was manifestly inadequate glven the very gross
change from the plaintiff's posltlon before the accident to
his position at trlal. Thls component is, In a sense, assoclated wlth the conclusion as to the contlnulnq effect
of the accldent on the plalntlff's mental condltion.
As was conceded, damages for pain and sufferlng
are at large, and It seems to us In the llght of OUT
conclusions on the other aspect concernlng the amount properly to be awarded for loss of earnlnq capacity In the
future, no reason has been shown for lnterferlng with the
amount awarded for pain and sufferlng.In the result, the plalntlff's cross-appeal should be dismissed with costs. The appeal by the defendant, whlch was not pursued before us, 1s also dlsmlssed wlth costs.
I certlfy that this and the preceeding
ten pages are a true copy of the reasons for ludgment hereln of the Court. Date: 5 August 1988.
Associate
Counsel for the appellant : MK Coombes QC and MK LUCaS
Solicltors for the appellant : Crossln Power Haslem
Counsel for the respondent : Mr P. Shells QC and MK Romano
Solicltors for the respondent : Romano & Co. Date of hearing
: 6 July 1 9 8 8 .
.
J
Attachment "A"
FEDERAL COURT OF AUSTRALIA
........ ........ ........ Q .c .7- DISTRICT REGISTRY
. qw.%%!?.k.. . ... .DIVISION
H No. of Action$%.of.l%.T
TITLE OF ACT~ON.@%Y.F. ~?O.VE% Y. S>%N.WPM. MW.OH .
Date( s ) of hearing. &./?/!?.y.. . .Date judgment delivered..
* Counsel and ( mK .kow%. .aG .4. . M f . ........ ........ LUcsC
' 1
* Solicitors for ( .C.~SS!YI.?~LOC. .%G\.%.;. ........
... ( ........ .
* Counsel and ( t?i\.J .T . .6h%!\S. as-. .?. .W.(. k . W o n 0 . .
* Solicltors for ( h-. A. .C&:. ........ ........ ....... %W?. .. ( 2s ........ ........ . .S+, 5-2. . R C .
S iqned . &.&.W (Associate)
Date. . .S / .? /% .F. .....
* Please delete, as necessary, in Industrial Division matters
where a representative appears for a party pursuant to s.117A
the of Conclliatlon and Arbitration Act 1904. The
representative's name and the name of the party he is
representing will be inserted in lieu.
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