KNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH

Court of Appeal (NSW)|1995-03-17|Before: Lee AJ, Kirby P, Priestley JA

KNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

KIRBY P, PRIESTLEY and CoLe JJA 17 March 1995, 13 April 1995

DAMAGES - sexual dysfunction - loss of libido - injury to back causes pain on sexual intercourse - substantial complaints to psychiatrists confirmed by wife - held: General damages inadequate - need for realistic approach to seriousness of sexual disabilities.

DAMAGES - adequacy of - motor vehicle accident - serious injury to back, arm and ribs - consequent resort to painkilling drugs - development of addiction to painkilling drugs - provision for past economic loss ($86,000) and future economic loss ($60,000) challenged as inadequate - provision for general damages ($60,000) challenged as inadequate - video film suggests appellant has greater mobility, on occasions, than demonstrated by his awkward movements in court - objective evidence of serious injuries and disabilities particularly to the back - whether allowance for economic loss appealably inadequate - whether Court of Appeal may safely reassess - held: (1) The provision allowed for economic loss was inadequate; (2) The claim must be sent for retrial as the assessment of the appellant's entitlement to damages depended significantly upon the assessment of his disabilities which, in turn, depended in part upon the view taken of his credibility. DAMAGES - loss or diminution of sexual function pleasure and capacity - proper approach to assessment of general damages for sexual injuries - significant evidence of impairment of sexual function - evidence of substantial reduction in frequency, duration and intensity of sexual intercourse between male plaintiff and his de facto wife - primary judge (Lee AJ) allows $60,000 for general damages - whether appealably inadequate - substantial evidence of such sexual dysfunction and loss of libido consequent upon injuries - very brief treatment of the issue by the primary judge in his reasons - held: (per Kirby P): The allowance for general damages for loss of enjoyment of life, including interference in sexual function and pleasure, was inadequate. Observations on the need for attention the proper proof of such claims and to their proper assessment by the court. Fairhurst v Aspden [1961] QWN 14 disapproved; Vasilef vy BGC Marine Services (NSW) Pty Ltd [1980] QdR 21 considered; Lindsell v Robson [1976] 1 NSWLR 249 (CA); Cook v JL Keir and Co Ltd [1977] 1 WLR 774 (CA) referred to. Workers Compensation Act 1987, s73, Table.

Kirby P This appeal demonstrates once again the difficulty which our legal system seems to experience when asked to provide properly for damage to an injured person for loss of sexual function, enjoyment and capacity.

There are several other issues in the appeal. Upon all of these I am in general agreement with Priestley JA. I agree with the orders which his Honour has proposed.

At the retrial it will be essential that specific attention should be paid to the damages which should be allowed for loss of the appellant's sexual function enjoyment and capacity. With respect to the learned and experienced primary judge (Lee AJ), I consider that this aspect of the case did not secure either adequate attention or adequate provision by way of general damages. In fairness to his Honour, it should be mentioned that the point may not have been elaborated in the submissions for the appellant at the trial. This seems likely because it was not even referred to in the otherwise extensive written submissions for the appellant in this Court. It was not mentioned in oral argument in the appeal until I raised the point by reference to the numerous statements about the matter in the many psychiatric reports which were admitted into evidence at the trial. I wish to address some remarks to this reticence. It is not uncommon. It may occasion injustice unless the attitude is changed.

COMPLAINT OF SEXUAL DYSFUNCTION AND EVIDENCE AT THE TRIAL

The statement of particulars filed on behalf of Mr David Knight (the appellant) included, after the long list of physical injuries:

"(p) Sexual dysfunction and inability to perform complete and enjoy sexual intercourse because of back pain...

In the appellant's evidence at the trial, an understandably large part of his examination-in-chief was addressed to his continuous pain and the problem of drug addiction (described by Priestley JA) which developed as a consequence. Although the appellant was taken in his oral evidence through the various specialists whom he had seen, his counsel (not, I should say, counsel retained in the appeal) passed but lightly over his sexual difficulties. He did so in a manner which is familiar and typical. The treatment of this disability in the courtroom contrasts with the intense concern recorded in the opinions of medical witnesses in front of whom the subject is typically more candid and can explain his disabilities as they are really affecting his life:

"Q: What aspect of your condition led you to consult (Ms Davies) in her capacity as a clinical hypnotherapist and counsellor?

Q: What problems were you having when you went to see her?

A: I wasn't coping very well with it. I was very angry all the time and I was very scared I was going to be violent with my wife.

Q: What about your relationship with your wife from an intimate aspect, was there any affectation in that area?

A: Definitely. It practically ceased. It was very rarely did we meet in our common bed.

Q: After you saw the clinical hypnotherapist did she do anything for you by way of treatment?

UFKNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) 3

A: Yes. I went through a course of hypnotherapy to try to reduce the pain and I was having - and it didn't have a real lot of success.

Q: You remained under the care of Dr Giblin in an overall sense, is that so? A: Yes."

Apart from leading the appellant through the other medical consultations which he had had, that was the extent of his direct testimony on the point in the examination-in-chief.

The appellant's [de facto] wife, Ms Julianne Knight, was called to give evidence in his case. She had commenced living with the appellant in about 1980. By him, she had two boys, aged four years and nine years at the time of the trial in November 1992. Ms Knight gave evidence of the substantial change in the appellant's temper after the subject injuries. With unhidden embarrassment, felt by himself but attributed to the witness, counsel approached questions concerning the sexual relationship of the couple:

"Q: With regard, madam, to the intimate aspect of your married life, has there been a change in that regard?

Q: Without embarrassing you, in broad terms, what alteration has occurred?

A: We would be lucky to get together, once every three to four months for maybe five minutes. We tried in the beginning but he ended up in so much pain he couldn't move afterwards and, half-way through it, you might be lucky... that is it... He is all finished. He can't continue.

Q: How would you describe that aspect of your relationship before the accident?

A: Before the accident there was maybe three or four times a week. It didn't matter, we never actually kept track of it."

The evidence deposed to the substantial increase of violence on the part of the appellant and to his continuous complaints of pain.

The cross-examiner, quite properly, tested the evidence about sexual intercourse by reference to the birth of the couples' youngest child. That child was conceived after the subject injuries:

Q: In relation to your youngest child, when was that child born? A: In 1988.

Q: That was about three years after the motor vehicle accident, is that right? A: Yes.

HIS HONOUR: Q: Was that the youngest or the oldest?

A: And at that point in time you were lucky to have sexual contact with him three to four times a year, is that right?

Q: So it was the situation then that you were just very lucky for you to fall pregnant perhaps on the one go?

A: Ihad a IUD. My doctor said to me you must be very fertile to be pregnant already. He said don't ever go without the IUD. Every time I take it out I can go back a couple of weeks later and I'm pregnant.

Q: So this was just one sexual encounter and you conceived, is that right?

Q: Is the situation that you still only have sexual contact perhaps three or four times a year?

Q: Are you aware over the years that your husband has taken medications?

Q: And were you aware that he took these medications that he had that it improved his condition?

A: He always took them just to keep going. When you are out he is always taking painkillers. He lives on painkillers.

Q: I take it though you noticed that when he takes painkillers, he is often free of pain?

A: He is not actually free of pain. He says it relieves the pain. You can see he is still hurting and you say to him why are you taking them. I have always questioned the painkillers. I have always thought that there are too many painkillers in our house...

Q: When it relieves the pain, isn't it the situation though that you can undertake sexual contact?

A: We have never tried to take painkillers just to undertake sexual contact because when he is finished he can't move for days after. He hobbles away if you do anything that night.

Q. What, he doesn't attempt to have a gentle sexual relationship with you?

Q. If it is very gentle you wouldn't physically stress his body?

A. I don't know what it does but for some reason it does. It causes a lot of pain. We are lucky to go two or five minutes. It is very quick, but the next day he can hardly move.

Q. Leaving that aside, isn't it the situation though that when you have sexual contact, you can be the more active partner, can't you?

Q> And if he has taken some painkillers that wouldn't be too much physical stress on him during intercourse?

A. Also when he is on painkillers you are lucky to get any erection.

Q. You are aware on one occasion he went to seek some treatment is that right for his sexual dysfunction?

Q. And I take it you are aware that that is the only occasion that he sought treatment, is that right?

Q. Did you ever encourage him that perhaps he ought to go and get some test for it?

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Q. Are you being truthful to this Court about the regularity of your sexual contact with your husband?

Ms Knight was then interrupted and the questioning turned to other topics. In my observation of the record of many trials, reviewed on appeal, it is not unusual for such evidence to be elicited from a female witness. Presumably it is thought too embarrassing for some counsel to press such questions upon the male victim of sexual dysfunction.

Following Ms _ Knight's evidence, the appellant was recalled for cross-examination. He was asked questions about the birth of the child in 1988:

Q: But your wife conceived on one of those rare occasions; is that correct?

Q: She did not discuss with you the planning of the child at all?

Q: So I take it that when you would have that medication [Nembudene] you would be able to have some fairly gentle sex; is that right?

Q: So you tell this Court on your oath that you only had sexual intercourse with your wife three or four times a year?

Q: Is the reason you don't have it because you have experienced difficulty as a result of pain; is that right?

Q: You went along to a sex therapist; is that right?

The appellant described the advice which he had received. It had not improved his sexual function. He agreed that he had discussed his sexual problems with other doctors.

The only oral medical evidence upon this point was from Dr Ramanda Hedge, a local practitioner. She deposed to referring the appellant to a psychologist at his own request:

"Q: Do you recall what it was he wanted to see a psychologist about?

A. I don't know. I would think his sexual performance was restricted because of the back pain.

A. He mentioned that his sexual performance had been restricted because of the back pain.

Q.... Before that he hadn't made any complaint to you about any sexual dysfunction?

Q.... When he indicated to you that he was having the sexual problems did you discuss it with him?

EXTENSIVE WRITTEN EVIDENCE RECORDS SEXUAL DISABILITIES

Dr Thomas O Clark, psychiatrist, reported in 1987 that the appellant's marriage had "been recently through quite a hard time":

"He says a couple of times he has got violent thoughts about his wife and he is very frustrated at home, not only sexually but he is unable to play with the children... He has a somewhat over-valued idea of his self-worth therefore and his present sexual difficulty is perhaps related to this in that he is always expected to be someone with perhaps more abilities and more successes in life than he can actually achieve."

Dr Clark expressed the opinion that the subject injuries had caused a "troubling, irritating sexual problem and that it has plunged him into a chronic anxiety state". He linked this to the appellant's severe back injury.

Mr Steven Woods, clinical psychologist, reported in May 1987 that the appellant's relationship with his wife suffered; that his sexual arousal and performance has been "critically impaired" and that he "rarely experiences desire and with back pain has no sexual feeling at all'. "Frequency now is probably now once every three months and this only under the influence of painkillers and for short periods of time".

Dr Malcolm Dent, consultant psychiatrist, was called for the appellant to give evidence about his problems of pain, depression and drug addiction. His oral testimony did not touch directly upon the appellant's sexual dysfunction. But a great deal of his written medical evidence, received at the trial, did so. It clearly indicated longstanding complaints by the appellant about sexual problems. The complaints to the doctors long preceded the complaint to Dr Hedge. On the basis of the objective medical records, there can be no suggestion that sexual dysfunction was a late invention on the part of the appellant.

For example, Dr John Douglas, orthopaedic surgeon, reported in 1988:

"His married sex life has been disrupted. Whereas he described it as quite healthy before the accident, he now finds that any attempt at sexual activity causes severe back pain and loss of desire to the point where now he avoids initiating any such activities. "

"His sex life has been ruined because of increased back pain at such times, and he often finds that he is impotent. He takes a lot of analgesics for pain."

Dr Daryl M Salmon reported on a consultation in 1990: "He was prescribed low dose Amitriptyline for his sleep disturbance and depression. Panadeine Forte was to replace Nembudeine, he was advised on home-based pelvic exercises and sexual guidance... "

"Sexual activity has dramatically decreased and he has essentially lost interest in it. He now only participated four to five times per year and then unsatisfactorily."

Dr Malcolm Dent, in December 1990 took a history that the appellant was complaining of "poor sensation in the genital area, there is no sexual arousal except very occasionally". He said:

"He can feel his wife's hand on his genitals but back pain commences with any attempt at intercourse and hence he does not readily become sexually stimulated. He has no libido. He said back pain commences through trying to commence intercourse, hence whilst his organs can appear normal, there is rarely capacity to sustain an erection. He said that there is not much sensation around the penis particularly around the glans. He said that he feels some penile discomfort. There is an obvious marked negative effect on sexual intimacy and relationship is

UFKNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) 7

otherwise curtailed now as well as there is frequent disputation and irritability in the marriage because of these overall effects of health, finance, sexual activity and freedom."

As a consequence, the appellant stated to Dr Dent that, since the accident, he had become "something of a hermit". Dr Dent considered that, unless and until the appellant had adequate treatment for his depression, his symptoms would persist, leading to anger and violence.

Mentor Psychological Consultants, retained by the Government Insurance Office in April 1992, stated:

"His marital difficulties appear to have predated the accident in 1985 and various separations took place prior to the accident."

However, there was no evidence that these separations were related to physical dysfunction.

In February 1992 the appellant told Dr Alex Ganora (retained for the respondent) that sexual activity had become painful and ineffective and that he "frequently feels depressed". A similar history was given by Dr James Maguire, consultant psychiatrist, retained for the respondent. He too recorded a history that the appellant had:

".. lost interest in sex after the motor vehicle accident and last year only had sex on one occasion and there has been no contact this year. He says his wife is very good about the problem. He has no sexual desire and said "I have been told by a psychologist I associate sex with pain" (a more probable explanation is the large amount of medication he is taking which is commonly associated with a lack of desire and also a problem with potency)"

The appellant complained to Dr Yolande Luciere, consultant psychiatrist, retained for the respondent in 1991 of the difficulty which he was having with sex. In 1992, Dr Justin Carey reported that he had organised for the appellant to "have a series of injections of male hormones in an attempt to improve his libido".

Perhaps the most vivid indication of the seriousness of the appellant's reports of his sexual difficulties is contained in the report of Mr C Waydon of the Australian College of Clinical Sex Therapists. This report was written in October 1987. Objectively, it contradicts the suggestion in the cross-examination of Dr Hedge, that the complaints of sexual difficulties were discovered shortly before to the trial, and by inference to exaggerate the appellant's claim for damages. Five years before the trial, the appellant was telling Mr Waydon exactly the same things as, briefly, he stated in evidence and as, with more elaboration, Ms Knight recounted at the trial:

"He told us that when he gets the urge to have sex, although he might go right through with it, he will last no more than 2 minutes whereas before the accident, 2 hours of lovemaking was not uncommon. He said that before the accident he made love at least 3 times a week. Now, he says, he is lucky to do it once every three months. The biggest problem seems to be the pains he can experience when attempting to have intercourse. The pain can come on at any time before, during or after intercourse, but then creating immediate impotence. He can, from time to time, put the pain in the background while having intercourse but as soon as he completes ejaculation, the pain will return with a vengeance which is consistent with the body being able to produce a certain amount of painkilling during intercourse... Of course, a natural side effect of having a pain of this sort can and will be a turn-off in the desire to have sexual intercourse. The desire can be there but knowing that the pain will occur, it will produce a paranoia of

whether to go through with it or not.... L.. feel sure that the accident is solely responsible for [the appellant's] disability so far as sex is concerned. In my opinion [the appellant] is one of the most straight-forward and honest persons I have ever had the pleasure interviewing. He held absolutely nothing back from me and was totally candid in many areas, even those he didn't have to discuss."

In September 1990, the appellant returned to Mr Waydon. He gave a history that he had only had intercourse on one occasion in the year past. It then lasted only one and a half minutes. He stated that his wife was becoming irritable and wanted him to "do something about the situation" before it resulted in a marriage breakup. Mr Waydon suggested to the appellant that he should look to marital aids. A "realistic" penis could be "strapped onto his body with a special harness". He could then lie back to afford sexual satisfaction to his wife whilst avoiding undue physical stress on his back.

From the continuing complaints of sexual difficulties, both of Ms Knight and of the appellant, it must be assumed that this expedient was not acceptable or for other reasons failed.

In the course of his reasons, which were otherwise extensive, Lee AJ referred to all of the foregoing evidence in only two passages in his judgment:

"HIS SEXUAL LIFE HAS BEEN INTERFERED WITH and at the very early stages in 1987 he did raise a complaint of that and the matter was looked at closely but with no satisfactory result. That raises a question which the plaintiff's own doctor called by the plaintiff was very concerned about - the question of whether the precise aetiology of his complaint in the spine and related as they might be to such a claim have never been properly investigated. However, that is another aspect of the plaintiff's claim." (emphasis added)

At the conclusion of his reasons his Honour dealt briefly with general damages:

"The plaintiff received very serious injuries and at the very outset of this judgment I said that they were the sort of injuries that you would expect would result in his not being able to have the same aptitude for all kinds of work that he had before. He was five and a half months in hospital in pain. There are photographs of him in traction in the hospital. He has since been through the court system and all that that involves. He has become drug dependent and he must take steps to remedy that situation. He has been emotionally upset AND IN SOME WAYS HIS SEXUAL LIFE HAS BEEN INTERFERED WITH... His life has thus contracted quite considerably. He will find always that there will be some limitation upon his movements - his physical movements - every day by reason of his knee and leg problem and having been injured in the back he will be precluded from heavy or strenuous work. The reports are full of recommendations that he take proper therapy to deal with his emotional upset and nothing has been done yet. One can hope that it will be done very soon indeed. In this case, however, I think the amount to be awarded for general damages to compensate him for all that he has been through, including the aspect of drug dependence, an amount of $60,000..." (emphasis added)

It will be seen from the foregoing that the ultimate reference, in the computation of general damages to the complaints of sexual dysfunction, loss of libido, etc is to be found in ten words in his Honour's reasons ("in some ways his sexual life has been interfered with"). Although the quantum of words does not necessarily indicate the depth of attention to a particular complaint, for an

UFKNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) 9

interference of such a serious kind in the appellant's life, revealed by the evidence, much of it uncontested, it does seem, with respect, a trifle curt.

The notice of appeal complains in the first ground of the amount awarded for general damages. There is no specific complaint about the treatment of sexual dysfunction. No specific complaint was raised by the written submissions for the appellant. It was not mentioned in the written submissions for the respondent. As I have said, it was not at first raised in the oral submissions of the appellant's counsel to this Court.

We thus have a man, aged twenty-six at the date of the injuries, thirty- four at the date of trial, who, amongst his many other disabilities had suffered what seems fairly clearly to have been a very significant impairment of sexual function and interference in his sexual life. With all respect, this element of the appellant's claim does not appear to have received the attention it deserves. It was almost passed over entirely in the primary evidence of the appellant at the trial. No real attempt was made to lead it from him. It was only the fact that it was elicited through the less inhibited testimony of his wife that caused the issue to be opened up more fully and presented for decision. The written medical testimony spoke virtually with a consistent voice of the appellant's complaints, frustration and depression on this account.

The only answers which the respondent could offer were: first, that a child had been conceived after the injury; secondly, that there had been relationship difficulties before the injury; and thirdly that video film showed that the appellant could, on occasion, move with far greater freedom than he evinced in court. In my estimation, none of these answers undermined the consistency of the evidence of complaint about sexual disturbance and the attributability of that complaint either directly to back pain or indirectly to the consequent painkillers and other treatment. Most importantly, no finding was made by Lee AJ to the effect which the complaints of the appellant (and his wife) were, in this regard, unacceptable. On the contrary, in the abbreviated passage in which his Honour deals with the subject, he appears to accept, to some undefined extent at least, the impact of the injuries upon the appellant's sexual function and libido.

A FRESH APPROACH IS NEEDED TO COMPENSATING SEXUAL DISABILITIES

The approach taken to the appellant's complaints of sexual dysfunction in this case was not atypical of the treatment of that head of complaint in damages cases in this country. The impact of such dysfunction may be great on the party's life and enjoyment of the amenities of life. But whereas, over the course of this century, the medical profession has gradually come to a realisation of the high importance of sexual well-being for the enjoyment of life of most people, the legal profession, including the judiciary, has by and large failed to do so, at least in the formal setting of the civil courts.

Lawyers have largely conserved their attention to sexual dysfunction to criminal trials where sexual conduct is examined (as the Crimes Act requires) with minute attention to the particularity of sexual activity. But when it comes to civil trials, and complaints by ordinary people of the impact of accidents upon their sexual lives, the result has been a rather sorry saga of mutual embarrassment. Whereas for the people themselves the issue may loom large (as their reports to their medical practitioners suggest), once they approach lawyers and the courts, there is a tendency to retreat to embarrassed silence or reticence. In part, this reticence may be the consequence of inherited cultural and legal norms. "Decency, morality and policy" have regularly prevented courts of our

tradition from coming to consider actual facts in sexual matters. See eg Goodright ex dim Stevens v Moss et al (1777) 2 Cowp 591, 594; 98 ER 1257; Contrast Russell v Russell [1924] AC 687 (HL), 699; V et al v C et al (1972) 26 DLR (3d) 527 (OHC), 529. In part, the law's reticence arises from the contrast between the ease of private discussion of such matters with a medical practitioner and the public disclosure of things so intimate in an open courtroom. But if these complaints figure significantly in the actual consequences of a compensable wrong as felt by the victim, it is essential that the attitudes and, if necessary, the procedures of the courts should be modified to permit appropriate evidence to be received and tested, so that the judgment which follows is a true compensation for the harm done to the victim of the wrong.

A review of Australian cases bears out the inhibitions of our courts and of our law in dealing with the civil consequences of sexual injury. Because of the suggested difficulty of putting a money value on sexual intercourse, it was held, as recently as 1971, that only a moderate amount of damages were called for under this head. In the case of a plaintiff, aged 57, it was held that an inevitable slowing down of his sexual activities warranted only "moderate" recompense. See Hills v Transport Commission [1971] Tas SR 154 (SC) 162. Cf B v Harrison (1962) 40 WWR 385 (BCCA).

Professor Harold Lutz, Assessment of Damages for Personal Injury and Death, 3rd edition, Butterworths, Sydney, 179 calls attention to another tendency in cases involving complaint of interference with sexual capacity and desire whereby the courts substituted moral judgments for objective assessment of the factual consequences of the wrong upon the particular victim. Thus, in Fairhurst v Aspden [1961] QWN 14 (SC), Townley J declined, in at case involving a thirty-five year old unmarried man, even to take into account the deprivation of non-marital intercourse occasioned by a severe injury to his penis. Townley J concluded that, to provide damages, would be to condone "fornication" which was unacceptable to society. His Honour went on: "Neither is any loss of such enjoyment as he may have had in the past in telling or listening to salacious stories".

Similar decisions were given in Canada at about the same time. Thus Wright J in V et al v C et al (above), at 536, rejected inclusion of sexual dysfunction amongst loss of the amenities of life with the explanation: "...'amenity' is not a word used to describe the more fierce, intense or urgent pleasures of life."

However, his Lordship did increase general damages.

In Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] QdR 21 (SC), 22 Demack J declined to follow Townley J's rather censorious approach. Perhaps this was because of his Honour's earlier service in the Family Court of Australia where the significance of sexual activity to parties' emotions and relationships would have been brought home to him. Perhaps, it was simply the passage of twenty years between 1961 and 1980, during which time profound changes occurred in Australia in social attitudes to, and candour about, sexuality. Demack J was of the view that the fact that the impairment of sexuality occurred in a plaintiff who was unmarried was "not of much significance". He remarked that impotence "seems to be a significant loss of amenity" and "impairment of sexuality seems to me to be a serious matter." There has been less inhibition in Australia in the judicial recognition of the importance of lost sexual sensation and potential sexual satisfaction in a young plaintiff: see eg Linsell v Robson [1976] 1 NSWLR 249 (CA), 253. The potential importance of this head of loss to children has also been accepted. See St Margaret's Hospital for Women,

UFKNIGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P)11

Sydney v McKibben [1987] Aust Torts Reps 80-130 (NSWCA). In England, it has been emphasised that the impact of the sexual impairment must be evaluated in the wider context of the effect of the impairment on the injured party's whole family and emotional life. See eg Cook v JL Kier and Co Ltd [1970] 1 WLR 774 (CA), 776.

The common law and judicial attitudes move in general harmony with community attitudes and expectations. Judges may take notice of what those attitudes and expectations are. In the matter of compensating people for injury to their actual sexual organs, it is worth noting that statutory compensation benefits are now provided under the Workers Compensation Act 1987 for injuries to sexual organs. See s73, Table. Past authority on sexual dysfunction, injury to sex organs and impact upon libido must be viewed with "extra martial very considerable reservation today. References to "fornication' intercourse" and other judgmental phrases are, in my opinion, entirely inappropriate. It is not the court's business to make moral judgments in this regard. It must simply compensate people for the damage that is done to them. If that damage includes interference with their sexual life, it has the potential to disturb very greatly the enjoyment of life. This is true of married couples. But it is also true of those living in de facto married relationships (such as the present appellant and his wife) and people living in the variety of physical and sexual relationships which lawfully exist in our society today. Earlier judicial statements concerning the suggested insignificance of disturbance of sexual function in persons older than the present appellant appear highly dubious. At least this is so where they are unsupported by scientific evidence addressed to the particular case. Each case must be evaluated in its own facts. Plaintiffs and their legal representatives should disclose complaints of sexual dysfunction to the court lest, in default, such a serious head of damage is passed over or under-valued. If necessary, the court should adapt its procedures to permit such evidence to be given with as little embarrassment to the subject and the subject's family and friends as possible.

entertain little doubt that, if the procedures of the courts were less formal and the appellant and his wife had been able to speak candidly of the consequences of the accident upon the appellant as a human being, the sexual dysfunction would have loomed much larger than it did either in the conduct of the trial or in Lee AJ's reasons and judgment.

Any fair review of the extensive written medical reports in this case would lead the reader to the conclusion that the ten word treatment of the complaint of sexual dysfunction, appearing in the reasons of Lee AJ, and the award of general damages which followed, did not adequately address the seriousness of the problem of sexual disturbance as it affected the life of the appellant, his image of himself and his relationship with his wife.

Disabilities of a sexual kind were not only relevant in this case insofar as they affected the appellant's relationship with his wife, important though that consideration was. They were also relevant to the appellant's own experience of sexual pleasure; his happiness; his feeling of self-worth and identification as a person. The courts of the United States have adopted a much more factual approach to this head of claim. In one case, for example, the plaintiff's claim was described as being for "loss of sexual appetite" for which he was compensated. See Doca v Marina Mercante Nicaraguense SA 474 F Supp 751 (1979), 757. Australian courts need to adopt a similarly factual approach in dealing with this issue.

Whatever generalities may have been uttered in past judicial opinions concerning the decline of the importance of sexual activity in an older person, "sexual appetite" would ordinarily be very important in the case of a person of the appellant's age. Reflect for a moment upon the damage to the self-image of the appellant inherent in a necessity to purchase an artificial penis and to strap it to his body in order to compensate for his disabilities. The appellant recorded the loving cooperation of his wife. The medical reports record his own efforts to receive instruction on sexual activities which could meet his wife's sexual needs. But they also record that such activity left the appellant unsatisfied, depressed and with increased feelings of anger and diminished self-worth. Whilst attention to the underlying physiological or pharmacological causes of the appellant's sexual difficulties might, as Lee AJ said, produce improvement there was no certainty that they would be successful. In assessing the appellant's general damages, allowance would have to be made for the risk that his sexual dysfunction would prove permanent; that it would contribute to a breakup of his personal relationships and that it would rob him of an important part of his full life as a man and as a human being. For such interference in the enjoyment of life the appellant was, in my view, entitled to substantial general damages.

Had it been appropriate to proceed to reassess damages, I would have favoured a large increase in general damages. As the matter is returning for retrial, it is unnecessary for me to say more than I have done.

Priestley JA This is a plaintiff's appeal from a judgment of Lee AJ who awarded the plaintiff $293,600 for damages for personal injuries suffered by the plaintiff in a road accident.

The accident happened on 18 July 1985 when the plaintiff was twenty-six. The plaintiff was riding a motor cycle when struck by a car insured by the GIO. Lee AJ found that the accident was caused by the negligence of the car driver.

The plaintiff was undoubtedly quite badly injured by the accident. He spent five and a half months in hospital recovering, partly, from his injuries.

In the amended statement of particulars filed on behalf of the plaintiff it was said that in regard to future economic loss it would be alleged the plaintiff was fit for work of a light and sedentary nature only; that he had significantly restricted physical capacities; as a result his vocational options were severely limited; it would be difficult for him to obtain light employment or any employment at all; and he claimed a continuing weekly loss of $561. He also claimed to have been incapacitated for work during the period between his accident and the trial before Lee AJ which took place in November 1992.

Lee AJ arrived at the judgment sum of $293,600 by adding the following figures for the various heads of damage claimed:

Past out of pocket expenses $72,874
Past economic loss $86,000
Fox v Wood component $ 9,726
General damages $60,000
Future economic loss $60,000
Future medical expenses $ 5,000

WRUGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAB

In his appeal the plaintiff submitted that the trial judge had made significant mistakes in arriving at his figures for heads 4, 5 and 6.

To make the plaintiffs argument comprehensible it is necessary to trace the course of reasoning in the trial judge's reasons.

His Honour began by pointing out that the plaintiff was a labourer/truck driver before the accident and that when he came into the court room at the commencement of the hearing of his case he gave the impression of being a severely disabled man. He said the real issue in the case was the extent of the plaintiffs disabilities which, the judge noted several times early in his reasons, depended largely on the significance of the back condition from which he was suffering.

Lee AJ commented critically on the state of the medical evidence before him which, as he saw it, because of tactical manoeuvring by both plaintiff and defendant, had gaps in it, which made more difficult the task of assessing the plaintiff's medical situation.

He then mentioned that in addition to the question whether the plaintiff had a serious back problem he was not passing over the injuries to the left leg and wrist but was also considering the problem whether in any event the plaintiff had a serious psychological problem. He then mentioned that he had become aware both from the behaviour of the plaintiff in the witness box and from the medical reports that the plaintiff had become addicted to pain killing drugs prescribed to him on a regular basis by his local GP.

Faced with the task of making findings of fact about the state of the plaintiffs health as a necessary precondition to assessing the damages to which he was entitled, the trial judge looked in detail at the medical evidence presented by plaintiff and defendant. In the course of and at the conclusion of considering this evidence his Honour made a number of findings which I will set out fairly fully, substantially using the judge's own words, but putting them in the order in which they were arranged in the written submissions filed by the plaintiffs counsel:

(a) The plaintiff suffered very serious injuries, requiring five and a half months in hospital during which he suffered considerable pain. The injuries involved loss of consciousness; comminuted fracture of the mid-shaft of the left femur; back injury involving anterior wedging of the lumbar spine at L1 and fracture of the transverse processes at L2, 3 and 4; a comminuted fracture of the distal radius involving the left wrist joint; and the extraction of two teeth because of injury of the mouth.

(b) The fractured left femur left the plaintiff with a leg one inch short that could come against him later on in life unless he wore a built-up heel. He had a permanent 35 per cent loss of function of the left leg as a whole.

(c) The plaintiff suffered a severe injury to his back leaving him in the condition where exertion or effort produces symptoms of pain. He should not be regarded as unfit for any work of any kind by reason of his back. He can do sedentary work and is fit for moderate forms of work.

(d) The plaintiffwill always find that there will be some limitation upon his movements - his physical movements - each day by reason of his knee and leg problem and having been injured in the back he will be precluded from heavy or strenuous work".

(e) There is "some psychological disturbance" which is a "significant feature in the case" and " the medical reports concerning this condition speak for themselves". The medical reports are full of recommendations that he take proper

therapy to deal with his emotional upset and nothing has been done yet but "one can hope that it will be done very soon indeed".

(f) The plaintiff has become drug dependent, and this is closely associated with psychological disturbance. The plaintiff may be freed of drug dependence by proper medical management and when that takes place there is no reason not to assume the plaintiff notwithstanding his other disabilities of a physical nature cannot enjoy a much more happy and contented and non-stressful life than he has. The plaintiff has "become drug dependent and he must take steps to remedy that situation".

(g) In "some ways" his sexual life has been "interfered with".

(h) The plaintiff was a very active man in sport, being very good at martial arts in which he was involved and his life has contracted quite considerably.

In the course of going through the medical evidence and coming to the foregoing conclusions, Lee AJ commented particularly on one aspect of the evidence which emerged from reports of Dr P Giblin. Dr Giblin, whose qualifications were those of an orthopaedic surgeon, had first seen the plaintiff on 13 January 1986 and saw him on later occasions going up to 30 June 1992. There were reports from Dr Giblin put in evidence by the plaintiff covering the period till towards the end of 1990. There was a letter from Dr Giblin dated 30 June 1992 which was put in evidence by the defendant. The judge noted that in the earlier group of reports Dr Giblin recorded the plaintiff as having had a normal gait. The judge said that the plaintiffs gait as the judge saw it in court could not be described as normal, and that it had been described as abnormal by a number of witnesses as from about 1990. The judge said that as from about 1990 "something has happened". He then quoted from Dr Giblin's letter of 30 June 1992, as follows:

"As you know he has some unusual symptoms in terms of his legs collapsing on him and sometimes being unable to hold his urine. When I examined him today reflexes were normal in the lower limbs, plantar responses were down going and straight leg raising was ninety degrees without any discomfort. His gait is bizarre and he filled out his spinal form to day and chose to state his occupation as malingerer. I cannot find any objective orthopaedic diagnosis. I have recommended that he continue with his appointment with Professor Hall this Monday and I shall be most interested in the Professor's comments."

"T do not appear to have been given the benefit of the Professor's comments. So, that is Dr Giblin. One asks oneself what is it that happened to the plaintiff between the last time Dr Giblin saw him and this court case? It is not easy to find an answer to that question."

"... one looks for a reason why this dramatic change in the plaintiff would have taken place so from a gait that was normal and a complaint of discomfort as Dr Giblin put them he came to the pass that he has reached."

The trial judge having asked this question, thereafter does not seem to have directly answered it. The closest he came to indicating a direct finding was a reference, immediately after the second time he asked himself the question as set out above, to evidence given by Dr Hedge, the plaintiff's treating GP, that he had advised the plaintiff to have one shoe built up to obviate his limp and that he had not taken that advice. The judge said he could only be somewhat surprised that the plaintiff still persisted in a limp notwithstanding that there appeared to be a remedy available for it.

WRUGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAB

To this point the trial judge would appear to have been laying the ground work for a factual finding that the plaintiff was deliberately exaggerating his symptoms and was consciously pretending to be more badly affected by the accident that he really was. However, after his survey of the medical evidence he came to the conclusions earlier set out and did not make, in plain terms at any rate, findings of the kind that he appeared to have been leading up to. In fact, he said (here reappears some of the material already set out):

"T am not satisfied, however, in the fact of Dr Giblin's report made three years after the accident that the plaintiff should be regarded as unfit for any work of any kind by reason of his back. I accept the doctors like Giblin and Ireland who claim that the plaintiff can do, other than the very heavy strenuous work, Dr Giblin described it as sedentary work and I think 'moderate' was the other word.

However, that is not the end of the picture; the mere fact that I have not accepted the plaintiff's case on that point is not the end of the matter. It is apparent from the medical evidence in the case and I would have thought from the plaintiff's own actions in this case that a conclusion that there is some psychological disturbance is plainly open and it is referred to as being a significant feature in this case."

He then went on to refer to the matter of drug dependence which in his view was afflicting the plaintiff. He said:

".. here is a person who on fairly solid evidence is in a difficult situation because of drug dependence, yet no serious attempt has been made by anybody to free him from it."

Lee AJ then made some further comments which I will return to and stated the basis on which he calculated the various elements of damages. The figure for out of pockets was agreed as necessarily becoming part of the judgment.

Counsel for the defendant also agreed it would be fair to allow the plaintiff his full wage loss for the period from the date of the accident to the end of June 1986, which in round figures was $15,000. In regard to the period from the end of June 1986 to the day of judgment, the judge said it would be appropriate to regard the plaintiff as having had only half his earning capacity. In calculating the figure the judge took, as this court was informed, by agreement, the figure of $561 as being the net figure the plaintiff could have earned, at the time of trial, as a labourer.

To state the judge's approach to future economic loss and future medical expenses it is necessary to return to the last stage of his Honour's reasoning. His Honour, having found the difficult situation in which the plaintiff had become involved because of drug dependence had said:

"The conclusion which I have drawn and this is a further finding I make is that on the medical evidence before me - the plaintiff may be freed of his drug dependence by proper medical management and when that takes place there is no reason not to assume that the plaintiff notwithstanding his other disabilities of a physical nature cannot enjoy a much more happy and contented and non stressful life than he has. Whilst he is drug dependent he will naturally want to assert he has pain in order to feed his addiction."

He also said that the plaintiff was a man highly skilled in regard to the fixing, the repairing and attending to break downs in motor vehicles and continued:

".. It is difficult to believe that his skills notwithstanding his one inch shortening of the leg and notwithstanding the left wrist, cannot gainfully be put to work by him either in his own business which of course he denies to exist but

which is certainly there as a hobby and attracting, one would think, enough people to keep him occupied all the time or most of his time - or he could look to other fields.

... The plaintiff undoubtedly has an earning capacity. After seven years spent not working and going through the hoops of the compensation system involving a wait of his hearing of seven years, constant parading of his complaints to various doctors whom he never sees again and who do nothing for him - it would fly in the face of common sense if one did not recognise that the sooner he gets

himself usefully occupied the better off he is going to be."

These last mentioned observations of his Honour were the target of particular criticism by plaintiffs counsel in the appeal.

First, in regard to what was said to be his Honour's optimistic view of the likelihood of cure of the plaintiff's drug dependence, which he said he had formed on the medical evidence before him, it was submitted that there was no such medical evidence. Counsel for the defendant was unable to refer the court to any specific evidence along the lines one would expect his Honour to have based his finding on, apart from some evidence by Dr Dent, who had specialised in psychiatry and who had been the honorary psychiatrist from June 1991 at the University of Sydney Pain Management and Research Unit, Royal North Shore Hospital.

There are two aspects to Dr Dent's evidence. First, there is the aspect in regard to which the court was specifically referred by counsel for the defendant, in answer to the question whether there was any medical evidence before the trial judge upon which he could found his conclusion that the plaintiff might be freed of his drug dependence by proper medical management.

The evidence to which the court was referred in answer to this question was towards the end of Dr Dent's evidence in chief, he having been called as a witness for the plaintiff. Also in evidence were two reports from him which are quite long, and to my lay mind, lucid and thoughtful, in which he expressed the opinion that the plaintiff was not deliberately exaggerating his symptoms. The relevant evidence was as follows:

Q. If Mr Knight has been experiencing pain of the type and intensity described to you firstly in your consultation in December of 1990 and had been so since his accident in 1985, would that have precluded him from performing gainful work in your view?

A. No. I see many individuals who continue in gainful employment who have pain of that nature.

A. If one - I want to please make this very clear - if we in our area of pain are describing an individual, we're not talking merely of the perception of pain but we're taking about the concept of suffering and that includes the effects upon the individual's life and circumstances. Now, it is common that there is low morale, the onset of depression, the inability to cope, the inability to master it, the feeling of being disbelieved and it is often those that become the factors that continue the pain to the state where the individual is unable to work.

Q. From a psychological point of view I will invite you to assume that this gentleman has had symptoms of irritability, anger, feelings of worthlessness, concern about his acceptance by medical practitioners and matters of that type from a very early stage in his post-accident history, would that be the sort of condition that you have just been describing?

WRUGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAY

Q. And have implications for his incapacity to work?

Q. Assume that that condition has persisted from 1985 to now, late 1992, what would you say as to the future?

A. We actually have attached to this pain clinic a pain centre which is an in-patient programme for individuals with just this sort of problem stressing, first of all, my view that there needs to be very genuine and intensive investigations as to what is actually going on: is it a correctable thing or is it not, and that cannot be determined until he has had a proper evaluation in an expert centre. Secondly, if it is determined that he has got a chronic pathological pain, which I accept he has, then once the pattern is entrenched we are talking about an increasingly verbatim prognosis. However, if there is admission to such an in-patient programme - for example in the North Shore Centre within the last year, 18 months, we have seen 853 people, then we are finding that 40% of those people remained permanently disabled despite maximum input so that is his risk, if he has the best available investigation and is admitted into such a treatment programme he is still at 40 per cent risk of not being able to recover."

Putting the doctor's figures another way, he was saying that the plaintiff had a 60 per cent chance of being able to recover from his depressed state and continuing perception of pain if he had the best available investigation and was admitted into a treatment programme of the kind with which Dr Dent was concerned.

Although I can see how minds may differ on the conclusion to be drawn from this evidence, I would not myself draw from it the conclusion which Lee AJ did and which I have set out at 7 above; the first part of what Lee AJ said seems to me to be a fair transcription of the evidence, namely that the plaintiff might be freed of his drug dependence by proper medical management but the second part of what he said. namely "when that takes place there is no reason not to assume... that the plaintiff... cannot enjoy a much more happy and contented... life" seems to me to carry an assumption that that is what is going to happen to the plaintiff or at least from the defendant's point of view should be treated as what is going to happen to the plaintiff, which I do not think Dr Dent's evidence or any other evidence in the case justifies.

The second aspect of Dr Dent's evidence, which is not directly relevant to the point which caused me to refer to it here, but which does seem to cast light upon what his Honour had in mind in his overall reasons for judgment, appears from some questions and answers passing between the judge and Dr Dent at the conclusion of Dr Dent's re-examination, as follows:

"HIS HONOUR: Q. One of the things that troubled me in reading the reports is the fact that a number of doctors have checked him over, to use a neutral expression, and have not been able to see or be conscious or aware of any particular pain that he ought to be suffering from. You put it down as a case of very severe depression?

Q. With possible disastrous consequences in the future?

Q. Can you help me with an answer to how it is that that is how he appears to you and not to other people?

A. I guess it is a question of if one has asked the right questions.

Q. He was in the witness box here for quite some considerable time and he had a rather flat, unenthusiastic one could almost say, approach to a great deal of the cross-examination that was thrown at him - I am not being disrespectful to counsel. One could have got the impression that he was in fact affected by drugs. Do you have any observation to make on that?

A. Yes, if that is the case there will usually be what Gough Whitlam called obfuscation, a clouding of awareness, an inability to sustain a discussion or follow a point of view. A clouding of awareness if you will.

Q. there is a report here before us that indicates in fact that he may become addicted to drugs?

These questions and answers brought the oral evidence before his Honour to an end. Counsel's addresses presumably followed. His Honour delivered judgment the next day.

It seems to me quite likely that his Honour was, to some extent at any rate, favourably impressed by Dr Dent's evidence. The course of his Honour's reasons seems to me to reflect, in the end, that favourable impression. That is, as his Honour said to Dr Dent, he had been troubled by the number of doctors who had not been able to see any particular pain that the plaintiff had any clinical cause for complaining of. Dr Dent supplied a persuasive explanation. Consequently, as reflected in his reasons, his Honour's mind turned from the simple solution of finding that the plaintiff was a deliberate malingerer and ended by adopting what seems to me to be the more realistic attitude that the explanation of the plaintiffs behaviour was more complicated than would justify the adoption of an unqualified malingerer theory.

However, although it seems to me that the trial judge did come to some such view of the most acceptable explanation of the plaintiff's appearance and behaviour, nevertheless the criticism of the way in which he dealt with future economic loss is at least to some extent justified. In my opinion the medical evidence before the judge did not enable a conclusion that on the probabilities the plaintiff would be likely, as the result of treatment which he would be likely to receive, to reach the stage where he would enjoy a much more happy and contented and non stressful life than the one he was experiencing at the time of trial.

So far as the trial judge's assessment of future economic loss is concerned therefore, there are two points in the plaintiff's favour in the appeal: the first is the one I have just been dealing with; the other is the contrast between the way the trial judge dealt with economic loss between accident and judgment and the way he dealt with post judgment economic loss. In regard to the former he was prepared to allow the plaintiff 50 per cent of what he could have obtained working regularly as a labourer after the period of total incapacity following the accident came to an end. The allowance he made for post judgment economic loss was on a different and much more restricted basis. It is of course not necessary that the assessment of the court in regard to the two periods should be the same, but the type of consideration which led the trial judge to reach his conclusion in regard to the former in the present case, would seem to require that post judgment economic loss be worked out on a basis closer to that for the economic loss between accident and judgment than the trial judge used.

WRUGHT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAD

Probably the reason for the marked difference is the view formed by his Honour that the plaintiff ought to get treatment of the kind which Dr Dent thought would under the best conditions give him a 60 per cent chance of recovery from the results of his now long standing depression and that as a result of such treatment he would be cured of his condition. I have already given reasons why I think the evidence did not justify such an optimistic view on his Honour's part.

Furthermore, another point made by counsel for the plaintiff in the appeal was that even if his Honour were fully justified in taking the optimistic view about the result of future treatment that he did, he was still overlooking the grave effect that the physical disabilities which he had found the plaintiff was suffering from would have on the job prospects of a person with the plaintiff's range of skills. Here again it was submitted that the trial judge painted altogether too optimistic a picture of the use to which the plaintiff could put his knowledge of cars. I think there is something in this criticism also.

The other item of specific future economic loss which was the subject of argument was the amount allowed by his Honour for future medical treatment. The figure of $5,000 which he awarded was intended to be an allowance to be treated in the proper fashion to wean the plaintiff of the effects of drugs. The criticism which I have partially accepted of his Honour's views about the likely future success of treatment of the plaintiff's condition involving both his condition and drug dependence also undermines his Honour's approach to this matter. The court was not however referred, in the course of the argument, to any basis upon which any different figure could be allowed in regard to future medical expenses. All that can be said is that it seems likely to be a significantly greater figure than $5,000 even if it be limited to the kind of treatment which Dr Dent had in mind.

In regard to general damages, the figure awarded by his Honour must have been influenced by his opinion of the likely future successful treatment of the worst aspects of the plaintiffs depression and experience of pain. It seems to me to follow from my partial acceptance of the criticisms of the plaintiffs counsel of the judge's reasoning on this aspect of the case that the figure for general damages also is to some extent flawed. An additional matter in this connection is the effect of the accident on the plaintiff's sexual life. His Honour noted that "in some ways [the plaintiffs] sexual life has been interfered with". The evidence in the appeal papers reveals that the interference was very substantial. The medical reports were quite explicit and left no room for doubt that the change caused to the plaintiff's sexual life by the accident was both considerable and likely to have affected his feelings about himself and his domestic situation in a sad and continuing way. Taking these various elements into account, in my opinion the award for general damages was distinctly low.

For the foregoing reasons I think that the trial judge's assessment of damages should be set aside.

That raises the question whether this court should reassess the damages or order that the plaintiff have a new trial. As to this question, the plaintiff asked for reassessment, the defendant a new trial.

Although I think it would be highly desirable for the court to exercise its undoubted power of reassessment in this case, I do not see how it can be done with fairness to both sides. The basis on which the credibility of the plaintiff should be approached by this court is not at all clear; particularly I do not see how the court, without seeing the plaintiff, and without an explicit foundation from the trial judge's findings, could approach the question of "functional overlay". This

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