Abdul-Massih v Abdul-Massih [2001] VSCA 231

5. In the absence of mis-direction - and, in my view, there was none in this trial - an appellate court will only interfere with a jury's assessment of damages if it concludes that the assessment is so large or so small as to be unreasonable; or put another way, that no jury could reasonably have awarded them[1]. In determining that question, the Court must proceed on the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence before them. We are not at liberty to form our own view upon the facts and to substitute it for the view which may reasonably have been taken by the jury in the respondent's favour[2].

8. 3 Approaching our task in that way, I agree with Vincent, J.A. that the jury's assessment of pecuniary loss damages at $90,000 was unreasonable. I agree with his Honour's conclusion that, having regard to the way the issues were fought in this case, such an award must mean that the jury have assessed the appellant's future loss of earning capacity in a sum approximating $25,000. Such a figure could only be supported on one of two alternative bases; either because it was accepted that the appellant would have returned to her pre-accident employment (or some similar employment) within a period of 12-18 months after trial, or that she would - in any event - have ceased to be engaged in gainful employment at an early age (that is in her mid-forties). As Vincent, J.A. has shown, neither view was reasonably open on the evidence before the jury. The verdict with respect to pecuniary loss damages must, accordingly, be set aside; and - for the reasons already given - there should be a re-trial both as to pecuniary and non-pecuniary damages.

18. This is an appeal brought by the plaintiff in a County Court action against the verdict of a jury which awarded damages for pecuniary loss sustained by her as a consequence of personal injuries suffered as a result of a motor vehicle collision.

21. Reliance has been placed by the appellant upon three grounds of appeal, namely that:

1. The jury's assessment of damages for pecuniary loss was manifestly inadequate and against the evidence and the weight of the evidence.

2. On the basis of the evidence and in light of counsel's final addresses, the jury's verdicts with respect to pain and suffering damages and pecuniary loss damages are mutually inconsistent and indicate error by the jury.

3. The trial judge erred in his charge to the jury as to the evidentiary burden on the defendant with respect to the issue of pecuniary loss damages in the light of the expert evidence called by both the plaintiff and the defendant to the effect that the plaintiff was unemployable and would remain so indefinitely.

28. The appellant was, on 10 January 1996, a rear-seat passenger in a motor vehicle being driven by her husband when it was struck from behind. The force of the impact was such that the car was pushed into a high brick fence and extensively damaged. Despite the fact that she was wearing a seatbelt at the time, the appellant was thrown about. She was removed from the car and placed on the ground. It was apparent at that stage that she had sustained a severe injury to her back and she was taken by ambulance to the Austin Hospital. Subsequent medical investigation revealed the presence of a wedge fracture of the L2 vertebra with marked kyphosis and subluxation of the L1-L2 facet joint.

31. During the following days and whilst still in hospital, the appellant developed severe internal pain for which she required surgery, on 19 January 1996, to drain fluid from the region of the right kidney. It would appear to be undisputed that her injuries were very severe and her recovery from them relatively slow. On discharge from hospital, the appellant was attended by a District Nurse for the first three to four weeks and she wore a back-brace for approximately six to eight months. She continued to attend the Austin Hospital for out-patient treatment throughout 1996 and began physiotherapy treatment in December of that year, attending twice per week for seven months for pain in her middle and lower back. In 1997, the appellant commenced attending Dr Malios for treatment. I will return to his evidence. And, in 1998, she was referred by the Transport Accident Commission to a rehabilitation centre where she received some limited assistance.

34. At the date of the trial, that is 7 August 2000, the appellant had been in receipt of physiotherapy treatment for a further period of two months. She claimed to be still experiencing back pain that upon occasions extended into her right leg. She took Panadol and Panadeine Forte when the pain was very severe, but had not taken any Panadeine Forte in the preceding two to three weeks as it caused her to become badly constipated. She was attending a psychologist, to whom she had been referred by Dr Malios, fortnightly. The appellant described herself as being very depressed and said "My nerves gone very bad." She did not believe that she would be able to return to work due to pain. The pain was always present but she indicated that it varied in intensity. She did as much as she could in the house and garden but was limited by pain. The heavier tasks were left for her husband and daughter. She said:

"I push myself so much, I drive a car; every time I put my leg on the brake I feel like every car behind they are going to hit me. It is too scary. But I want to get on with my life."

"I can't go like I used to go before, and when I go, sometime I try to be happy. I go to a wedding or a party, I used to love dancing. When the music start now I feel like to get up. Sometime I do get up, I dance a bit, but then I feel the pain getting worse."

40. The appellant, gave evidence that she was born in Lebanon on 4 November 1956. She was therefore 39 years at the date of the accident; and 43 years at the date of the trial. The appellant migrated to Australia at the age of 19 years and is married with two adult children. The uncontested evidence at the trial indicated that she had an excellent employment history which commenced shortly after her arrival in this country. She had worked for approximately 12 years sewing electric blankets before suffering injury to her arms which required operative treatment. This was undertaken during the following Christmas holiday break and she was effectively off work for only two weeks. However, she continued to experience difficulties and subsequently had to leave that job. She was then unemployed for a period of time before securing work at a Coca Cola factory where she stayed for one-and-a-half years before beginning employment on 12 December 1988 as a pastry cook with a company known as Erica Manufacturing. She was still in that position at the time of the happening of the accident. She gave evidence that she had, at that stage, no intention of retiring from her work which she enjoyed.

43. Mr Peter Richter, the managing director of the company at the time, described the appellant as one of its better employees. His unchallenged evidence was that she had performed her work well and was very punctual and reliable. He said that, although she had sustained a back injury in June 1990, she had not experienced ongoing problems and had not lost any significant time from work in the six years before the accident. Throughout that period, she worked in an area where there were no sitting positions at all. The appellant's employment was terminated, on 18 June 1997, as she still appeared to be having great trouble with her back. She was not walking freely and there appeared to be no possibility of resumption of her employment in the foreseeable future. Mr Richter stated that there were no suitable positions available for the appellant in the factory.

46. Evidence was given by Mr Kevin King, an orthopaedic surgeon with approximately 40 years' experience in that discipline, who first examined the plaintiff, on 7 December 1998, and subsequently, on 3 April 2000. He expressed the opinion that the nature of the fracture sustained, the disruption of the associated ligament, and the partial overlapping of the joint facets were indicative of a major degree of trauma. The nature of the fracture also indicated that there must have been some rotation at the time of the stress which produced soft tissue tearing and blood loss. As a consequence of infection developing in a blood clot that then formed, an abscess had been caused which precluded surgical treatment to stabilize the spine. It was for this reason that a brace had been used and operative repair was not attempted, he said. The appellant was left, in Mr King's opinion, with an unstable spine. She had lost part of the range of her back movement, had definite weakness of the right quadriceps function, corresponding to nerve root impairment at L3 and L4, and an impaired sensation to the front of the thigh, corresponding to L2 and L3 distribution. It was Mr King's view that the appellant had a chronic disability of moderate to quite severe degree and that she would have permanent stiffness and pain in the lumbar spine that would be aggravated by any sort of exertion such as bending, lifting and twisting. This, he considered, represented a major impairment function to a previously fit, active and youngish woman who had been able to perform a busy job in a factory without difficulty. He expressed the opinion that she was, at the time of the trial, not fit to return to employment. The disability of which she complained was, in his view, consistent with a good result being obtained from what was a very severe injury. He said that she would probably remain as she was. He could not assert that she was totally and permanently unemployable, but considered that it was highly improbable that she would be able to secure or retain employment as a consequence of her injuries.

49. A video-recording, to which I will return, was shown to Mr King in the course of cross-examination. He said that it did not affect his opinion. Having seen the video, which to my observation revealed nothing inconsistent with his expressed understanding of her situation and capacity, I would have been somewhat surprised had he stated otherwise.

52. Dr John Malios, who practices as an occupational physician with a role in the training of medical practitioners in the assessment of impairment for WorkCover purposes, said that he had a particular professional interest in work-related back injuries. He stated that he saw the appellant on 27 February 1997 and on a number of occasions thereafter. He also expressed the view that, for practical purposes, she was unemployable. He referred her to a psychologist for assistance.

55. Ms Kobatsiari provided this treatment from 26 March 1999. The appellant gave to her a history of nightmares, severe pain and feelings of worthlessness with a loss of self-esteem. She told the psychologist that she was angry and resentful and concerned about the effects of her injuries upon her relationship with her husband and children. She complained of irritability, poor concentration, nightmares and insomnia, loss of libido, headaches, dizziness and a feeling of weakness. Ms Kobatsiari expressed the opinion that the physical symptoms suffered by the appellant were prolonging her psychological problems and that her psychological prognosis was poor.

58. Evidence of a confirmatory character of the appellant's assertions of the day-to-day impact of her injuries was provided by a next-door neighbour and the appellant's daughter.

61. The respondent admitted that the appellant had been examined by Dr Greenberger (a psychiatrist), another surgeon, and professional staff at the Victorian Rehabilitation Centre, in addition to the three witnesses who were called on their behalf.

64. The first of these witnesses was Mr Fleming, a general surgeon. He had examined the plaintiff on three occasions, the first being in February 1997 when he formed the view that she was unfit for work and prognosticated that it would take many months before she would even be able to undertake a work trial. The second examination was conducted on 25 September 1997, when she presented as tearful. He formed the impression at that time that she may have, in effect, "given up" and lost motivation. He considered that it was unlikely that she would improve sufficiently to be able to manage both employment and her normal household activities. On the occasion of the third examination, which took place on 10 December 1998, Mr Fleming considered that the appellant was still unfit for work and likely to remain so. It was his view that she was unemployable and that that situation was likely to continue indefinitely.

67. Ms Flavell, a psychologist employed at the Victorian Rehabilitation Centre, gave evidence that the plaintiff attended the Centre between 27 May 1998 and July 1998 when the decision was made that what was being offered in the way of psychological therapy was not useful for her. It was, however, accepted that the appellant had co-operated with the treatment which was directed towards pain management.

70. The third witness, called on behalf of the respondent, who gave evidence was Mr Kingsley Mills, an orthopaedic surgeon, who examined the appellant for about an hour on 11 July 2000, that is, less than a month before trial. This witness stated that in his view the appellant would be capable of most day-to-day activities although, if she were employed, it would be better for her to be engaged in semi-sedentary work. He questioned the severity of the symptoms described by her, expressing the opinion that the degree of ongoing pain of which she complained was usually associated with a much higher intake of analgesia than that indicated in her history of Panadol two or three times a day, and Panadeine Forte once a week. He expressed the opinion that the movements of the appellant which were demonstrated on the video recording were consistent with his view of the situation. He said that she should be comfortable in undertaking most day-to-day activities, including housework, travelling on public transport, walking quite reasonable distances and working.

73. This very different perception of the appellant's situation was challenged by her counsel in the course of cross-examination. It emerged that:

(1) apart from the notes from the Austin Hospital concerning her admission and a subsequent series of X-ray reports, Mr Mills had been provided with little, if any, background information. Specifically, he had not been supplied with copies of any of the reports that had been obtained by the TAC from Mr Fleming, the report of Dr Greenberger, or a report that had been provided to the TAC with respect to the attendance of the appellant at the Victorian Rehabilitation Centre;

(2) Mr Mills had seen the appellant on one occasion only;

(3) although he indicated that he considered that she would be able to resume the employment which had been described to him by counsel for the respondent at the trial, he accepted that he really had no idea of the nature of the job that she had been performing for approximately seven years prior to the accident;

(4) he had been provided with no information concerning her progress in the period of four-and-a-half years following the accident;

(5) he was first asked about her employability in the witness box in the Court.

79. It appears from the transcript that, on the basis of almost no information whatever concerning the work involved in the former employment and virtually no other background material, this witness expressed a view that ultimately the appellant would be able to return to that type of work. I find his preparedness to do so somewhat disturbing. He did, however, express the limitation that he did not think that she would be able to resume employment of that kind immediately, whilst not venturing to suggest any timeframe within which it could occur. The trial judge understandably possessed significant reservations about this evidence, as he commented in the course of his charge to the jury:

"the closest anyone got to saying that the plaintiff could get back to work was Mr Mills. ... His evidence on the matter was, you might think, pretty inconclusive."

83. Counsel for the appellant at the trial was concerned about this evidence and raised the matter with the judge at the completion of the charge, submitting without seeking a re-direction:

"Nor was there any evidence to suggest that the plaintiff could have got a job after the next three years. I am just, perhaps, overly concerned that the jury might, in light of the representing of the argument on both sides to them, that they might feel that somehow, there is some evidence there that she should be back at work in the future."

"I really don't see that, ... Counsel was entitled to, and did, raise a number of suggestions as to why the plaintiff might not have continued to work into the indefinite future, and they derive from your own evidence. True it was she said that she loved work, and wanted to continue; but there was the undoubted facts, for example, that her children are now grown up, and that her husband has retired.

...

The second point is that it was certainly pretty wishy-washy but, whatever its faults might be, Mr Mills did essay a conclusion that, given active therapy, the plaintiff could get herself fit enough to do the sort of work that she used to do. It mightn't have been a particularly inspiring piece of evidence, but it seems to have been there. I am sure I can find the reference - - - COUNSEL: I don't think there is any need, Your Honour. HIS HONOUR: So there was that evidence; and here is a woman who had been a valued employee. Given that four and a half years have gone by now, and that in two years' time, for example, six and a half years would have gone by, it might be a fairly fanciful extrapolation but why wouldn't there be some evidence upon which the jury could say, if it wanted to, `We think Mills is right; that this woman has, and will, get back to the point where she could do that sort of work and, as a valued employee, that is where she is likely to get it.'" (My emphases.)

His honour indicated that in his view a re-direction was not called for even had one been sought, there being what he described as a "skerrick" of evidence before the jury.

90. It is possible only to speculate as to why Mr Mills had not been provided with what must be regarded as essential background information if any worthwhile opinion was to be secured, or how it came about that, in a situation where the respondent had had a number of examinations made of the appellant that consistently indicated that she had significant ongoing disability, the opinion of another medical practitioner was obtained three weeks before the hearing date. Be that as it may, the questions which arise for consideration in this Court must be answered on the basis of the evidence before the jury.

93. I have already referred to the production of a video-recording in the proceeding. It appears that there were two private inquiry agents engaged on behalf of the defendant to observe the appellant, only one of whom was called during the trial. He carried out observations over a period of five days, namely Monday 1 June 2000, Sunday 18 June 2000, Saturday 24 June 2000, Sunday 25 June 2000 and Saturday 22 July 2000. A recording of approximately 14 minutes in length in total was made, demonstrating something in the vicinity of two or three minutes of limited activity. As I have earlier intimated, I am of the opinion that this recording was clearly incapable of supporting the claim that the appellant may not have been significantly disabled at the time, or to an extent inconsistent with her evidence and that of the observations and assessments of all other witnesses, save Mr Mills.

96. Ultimately the case was put to the jury by counsel for the appellant and the respondent on the basis that the appellant was at least entitled to damages for economic loss based on total incapacity from the date of the happening of the accident to the time of the trial. The agreed figure for this period was $65,000 and represented loss of income at the rate of $450 per week. Counsel for the appellant argued that, with the exception of the evidence provided by Mr Mills, all of the witnesses, including Mr Fleming who had examined her on more than one occasion and had been called on behalf of the respondent, accepted that she was for practicable purposes, unemployable for the foreseeable future. The opinions advanced by Mr Mills, the argument proceeded, should be rejected. Not only were they inconsistent with the observations of treating practitioners and others who had seen her over a long period of time, but they lacked any adequate evidentiary support. On this foundation, he contended that an award of $270,000 should be made for economic loss. This represented an allowance of $205,000 for the future and was based upon a continuing loss of approximately $450 per week. The appellant's counsel put no figures to the jury with respect to damages for the pain and suffering that she had or would experience.

99. Counsel, for the respondent, drew the attention of the jury to the video-recording, to the limited resort to prescription analgesics by the appellant and the observations and opinions of Mr Mills. He submitted that the appropriate assessment of damages for pain and suffering would be in the vicinity of $80,000. He effectively accepted that the award should include the sum of $65,000 representing past economic loss and that the total award could perhaps be rounded to $175,000, but certainly not beyond $200,000. This submission, in effect, represented an allowance of approximately $25,000 being made for future economic loss.

102. The jury returned with a verdict assessing damages for pain and suffering at $130,000 and for pecuniary loss at $90,000.

106. In considering this matter, I have been conscious of the role of an appellate court and the need to exercise extreme care before a jury verdict is overturned. The Court must, of course, approach that possibility on the basis that it is not authorized to disturb a verdict simply because its members do not agree with it or consider that the evidence called at the trial preponderates against the verdict.[3] The jury must be regarded as having adopted the view most favourable to the respondent of the evidence taken at its highest, which a reasonable jury could reach[4] in the circumstances and the view of that evidence most consistent with the size of the verdict that it returned.[5]

109. On this foundation of well-established principles, the respondent contended that:

"The jury was entitled to reach its verdict in relation to pecuniary loss damages having regard at least to the following aspects of the evidence: * the unreliability of the appellant particularly in relation to the extent of the medication she was taking as casting doubt upon the extent of the claimed disability [see respondent's address - ABd 387-400]; * the film; * inconsistencies in the presentation to the respondent's doctor Mr Mills [ABd 329]; * the view of Mr Mills that significant severe ongoing pain of the kind from which the appellant claims she was suffering was usually associated with a much higher intake of analgesia than that noted in the history given to him of panadol two or three times a day and panadeine forte once a week [ABd 333.25]; * Mr Mills' evidence as to the nature of the injury, the expected nature and time of recovery from the injury [ABd 330, 335], the reasonable likelihood of return to pre-accident work or similar work [ABd 336-9], although not immediately so; * Mr Mills' interpretation of the video [ABd 333-4]; * the jury was entitled to have given great weight to the view expressed by Mr Mills that motivation was a critical factor in successful return to work in a case like this [ABd 339]; * the jury was not bound to accept the views of the appellant's doctors, Dr Malios and Mr King, especially if the jury accepted the film as demonstrating very clear inconsistency in the plaintiff; in particular such view would have put the jury at loggerheads with Mr King [ABd 152-3; 154-55]; * the evidence of the appellant's employer, Mr Richter was capable of being used in the way referred to by the learned trial Judge in argument; the plaintiff was a favoured employee and why could she not go back into the same job or similar job without the need for special assistance [ABd 526-7]; the earlier evidence of Richter as to her disability rendering her unfit to work was based on his seeing her relatively shortly after the accident when she was indeed greatly disabled [ABd 174]. Accordingly it could not be said that in the circumstances of this case no reasonable jury could have concluded as follows: * the nature and degree of the appellant's injuries entitled her to an award for past economic loss of about $65,000.00; * on the balance of probabilities, the plaintiff was capable of return to work within six to twelve months, the jury preferring the evidence of Mr Mills fortified by the film. Thus a figure of $25,000.00 representing up to a year for loss of earnings in the future was reasonably open to the jury. The case was permitted [ABd 525-7] to be left to the jury upon the basis of the figures put by respondent's counsel in his final address [ABd 410-12]. Accordingly, it cannot be said that the jury's assessment of damages for pecuniary loss was unreasonable. In the circumstances it cannot be said that the award of $90,000.00 for pecuniary damages was not reasonably open on the best view of the evidence for the respondent. The appellant cannot overcome the `formidable obstacles overcoming the rule of restraint required before appellate intervention'."

113. Whilst it would appear to be relatively clear that the jury must have accepted and relied upon the evidence of Mr Mills, perhaps supported by impressions gained from their observation of the appellant as a witness, the video recording and the evidence with respect to the appellant's limited resort to analgesics, I am unable to identify a rational basis for so doing. The opinions of Mr Mills rested on an inadequate and deeply flawed foundation. They could not be supported by the video recording or the small amount of evidence with respect to the appellant's use of analgesics. There was no basis whatever upon which the jury would have been entitled to find that the appellant who, it had been accepted, had sustained a serious injury and had been totally incapacitated for work to the date of the trial, would be able to resume employment within the period of one to two years, for which allowance appears to have been made in the award, or that she would, after many years of regular employment, have retired in her mid forties if she had not been injured.

116. In the circumstances, I am of the view that the assessment of damages for pecuniary loss made by the jury was manifestly inadequate and unsupportable by the evidence adduced at the trial. Accordingly I consider that this appeal should be allowed on this ground.

120. This ground must fail, in my opinion. I am by no means persuaded that there is within the jury's verdict an internal inconsistency evidenced by the quantum of the award of $130,000 for pain and suffering on the one hand and the award for $90,000 for pecuniary loss on the other. As counsel for the respondent contended before us, both awards are consistent with a finding by the jury that the appellant suffered very severe initial injuries and had experienced five to six years of lingering pain sufficient to have totally incapacitated her during that period, but not prevent her from returning to work within a further twelve month period. However, this argument, advanced to support the contention that no internal inconsistency can be detected, in my opinion, provides additional support for and demonstrates the manifest inadequacy of the jury's allowance for future economic loss in the circumstances.

124. This ground also must fail. At the conclusion of the trial judge's charge to the jury, he invited counsel to indicate whether there were any exceptions taken to what he had said.

"Your Honour, just one matter: Your Honour did not mention to the jury there was any evidentiary burden upon the defendant, if it is to be alleged by the defendant that the plaintiff's damages for loss of earning capacity should be assessed on the basis that she would, in likelihood, obtain employment, or that she could have and should have in the past. Woodhead v. Barrow[6] is the case that I would be relying upon. In this case, Mr Fleming, for example, saw the plaintiff on three occasions. The first two occasions were not at the request of the defendant's solicitors, but were at the request of the Transport Accident Commission. HIS HONOUR: Yes. COUNSEL: So that the Commission has an actual involvement, and Woodhead v. Barrow is one of those cases where the Court of Appeal approved the reasoning of two cases in Western Australia, where the Full Court of that State held that there was an evidentiary burden upon a defendant, particularly a defendant such as the TAC, which has a statutory obligation, or it is part of their charter or objects to assist in rehabilitation of road traffic victims. HIS HONOUR: Yes. COUNSEL: And in this case there has been no attempt by the defendant to lead evidence from anybody that there would be a job available, realistically available, for Mrs Abdul-Massih in the past or in the future. It is a matter I perhaps mention out of a sense of caution, rather than asking for anything pro-active to be done about it at this stage."[7]

131. A little later, counsel for the respondent inquired as to "whether my learned friend is asking to re-charge the jury, or what is the submission". The judge replied that he did not understand that any application for re-direction was being made. Counsel for the appellant at no stage in the ensuing discussion suggested otherwise.

134. Whilst the absence of an application for redirection is not determinative of the situation, it is a feature to which substantial significance must be attributed when a conscious decision has clearly been made by senior counsel not to pursue the matter. I do not consider that the trial judge should be regarded as falling into error in not giving a direction which counsel for a party before him in a civil proceeding had chosen not to seek.

138. On the basis earlier indicated I would allow this appeal. In the circumstances I would set aside the verdict in the court below and order a re-trial on the issue of damages.

[1] cf. Precision Plastics Pty. Ltd. v. Demir [1975] HCA 27; (1975) 132 C.L.R. 362 at 369 per Gibbs, J.

[2] Zoukra v. Lowenstern [1958] VicRp 94; [1958] V.R. 594 at 595; Liftronic Pty. Ltd. v. Unver (2001) 75 A.L.J.R. 867 at 872 per Kirby, J.

[3] Liftronic Pty Ltd v. Unver, (2001) 75 A.L.J.R. 867, per Kirby, J. at paragraph 64. See also Zoukra v. Lowenstern [1958] VicRp 94; [1958] V.R. 594 per Herring, C.J., O'Bryan and Deane, JJ. at 595.

[4] Liftronic (supra) per McHugh, J. at paragraph 30.

[5] Calin v. Greater Union Organisation Pty. Ltd. [1991] HCA 23; (1991) 173 C.L.R. 33 per Mason, C.J., Deane, Toohey and McHugh, JJ. at 42.

[6] Woodhead v. Barrow (1993) A.T.R. 81-238.