Rajcoomar v Darocha

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40605/99 DC 4564/97

POWELL JA GILES JA

Monday 26 February 2001 RAJCOOMAR v DAROCHA JUDGMENT

1 POWELL JA: I would ask Mr Justice Giles to deliver the first judgment. 2 GILES JA: The appellant was involved in a motor vehicle accident on 27 March 1994. He struck his forehead on the windscreen of his car, his right hand was jammed between the steering wheel and the driver's door and his left shoulder was twisted against the restraint for his seat belt. Liability was admitted. Phegan DCJ assessed the appellant's damages at $45,314.95. After deduction of amounts advanced to and paid on behalf of the appellant, judgment was entered in his favour for $20,834.41. The respondent was ordered to pay the appellant's costs to the date of an offer of compromise, but because of the offer of compromise the appellant was ordered to pay the respondent's costs thereafter. 3 Phegan DCJ did not award any damages for non-economic loss, finding that the appellant's ability to lead a normal life was not significantly impaired by the injuries suffered in the accident at the time of trial (see s 79(1) of the Motor Accidents Act 1988 as it stood at the relevant time and Roberts v White (1999) 29 MVR 331). The $45,314.95 was made up of out of pocket expenses of $12,814.95, an award for future medical expenses of $2,800 and an award for diminution of earning capacity of $30,000. 4 In this appeal the appellant put essentially three submissions - (a) that his Honour was in error in failing to award damages for non-economic loss because on the findings made by his Honour and in the light of some other matters to which attention was drawn in the appeal the appellant's ability to lead a normal life was significantly impaired at the date of trial and to an extent greater than 8% of a most extreme case; (b) that his Honour had failed to award damages for past economic loss or, if he had awarded such damages as part of the $30,000, that he had awarded an inadequate amount; and (c) that the $30,000 was an inadequate amount for future economic loss, and even more inadequate if including damages for past economic loss. 5 The grounds of appeal as filed included a challenge to the order for costs so far as the appellant was ordered to pay costs to the defendant. At the hearing of the appeal no complaint was made as to the order on the basis on which his Honour made it. The ground of appeal would arise if the appeal were to succeed in a manner material to the offer of compromise, because it would then be necessary to reconsider the order. 6 The appellant was found to be unreliable as an historian, and with credibility significantly compromised by professed lack of recollection under cross-examination contrasted with good recollection in chief; what were described as conspicuous inconsistencies in the accounts he gave to different treating doctors and to medico-legal experts and also in comparison with his evidence; and by what were described as glaring inconsistencies in personal details. In particular, most of the accounts given to doctors did not include that his right wrist, the subject of his principal complaint of injury in the accident, had been earlier injured and had given him trouble over many years prior to the accident. Nor did most of the accounts given to doctors include that the appellant had been affected with quite a large number of medical problems which had interfered substantially with his personal life and work history. There was no challenge in the appeal to his Honour's assessment of the appellant as a man of low credibility. 7 The appellant gave evidence that he suffered from headaches and from pain in the left shoulder in the immediate aftermath of the accident, but it was found that both those matters had significantly resolved and that the shoulder problem, so far as it remained, did not cause any substantial inconvenience. The appellant's case was really founded on what he said was a permanent disability in his right wrist, a disability causing continuing pain and restriction of movement and use and seriously affecting his earning capacity and his ordinary enjoyment of life. 8 The appellant had fractured his right wrist playing soccer in 1979. He had undergone a series of operations involving reduction and fixation and later a bone graft. When he went to his doctor in early 1991 with a complaint of constant pain, it was found that the union had been incomplete and that there was early osteoarthritic degeneration and instability. 9 The wrist was injured in an incident in which the appellant was the subject of an assault, and was also injured at work in late 1992. It was found that the long standing non-union had been irritated and made symptomatic. The final recommendation at this time was for conservative treatment prior to consideration of an operation, and by mid 1993 there had been significant improvement but with continuing concern about osteoarthritis. Dr Neil's conclusion, it seems accepted by his Honour, was that a fibrous union had brought stabilisation of the appellant's wrist which but for the accident could have persisted for a considerable time. That said, his Honour was clearly enough of the view that the incidents affecting the wrist had begun to bring more frequent instability, and that it could well have been that some other incident would have brought irritation and a symptomatic wrist injury quite apart from the accident at some time in the future. 10 Following the accident the appellant complained of a very painful right wrist. The long standing un-united fracture was noted and, after initial conservative treatment, surgery was recommended. In October 1994 a resection of pseudoarthrosis and insertion of a Herbert screw was undertaken, but it did not lead to union. In February 1995 a vascularised radial graft was performed. This brought reunion, but with residual deformity. Relevantly to one of the appellant's submissions in the appeal, it is clear enough that over at least the period immediately prior to these operations and during them and a period of recuperation, the appellant had obvious limitations on the use of his wrist. The appellant's evidence of continued limitations, and pain and in particular loss of sensation in his wrist and hand as at the date of trial, was not fully accepted - indeed, it would be correct to say but little accepted. 11 It was found that, save for damage to the radial nerve, the surgery had been conspicuously successful and had achieved a satisfactory range of motion and function, and that the appellant's wrist was in a much better and more stable condition than it had been since the soccer injury. There was numbness in the small area of the web between the thumb and the forefinger, but not the more extensive numbness asserted by the appellant. His Honour found, referring to the loss of sensation of which the appellant complained - "I am satisfied that it is much more confined than the plaintiff claims, and that it does not therefore have the serious effects which the plaintiff attributed to it that makes it, for example, dangerous for the plaintiff to undertake activities such as those associated with the trade for which he is qualified, namely, that of a boilermaker/welder."

12 This finding needs to be read together with what his Honour later said in relation the numbness and to economic loss. 13 As to numbness, after saying that the appellant was left with a wrist in better condition than prior to the accident his Honour said - "I have already indicated very clearly that I would not accept what the plaintiff has said in that regard and would on the other hand accept the medical evidence to the extent that the damage to the radial nerve in terms of the extent of its effect on the use of the hand is very specifically limited to the area between the thumb and forefinger. While I accept it may on occasions be the source of some embarrassment and possibly even a degree of danger, it is not of the extent which the plaintiff suggested was the result of the operation. As to the use of the hand generally and the claim of ongoing pain, I am satisfied that to a significant degree limitations on flexion and the periods of pain which the plaintiff has referred to are at least in part a consequence of various incidents involving the wrist before and up to the time of the motor vehicle accident and that this was a problem which the plaintiff was destined to face whether he had been involved in the motor accident or not."

14 When considering economic loss his Honour first said that he was prepared to accept that the only significant employment which the appellant had ever undertaken was that of a boilermaker/welder. I set out now what followed because, in the way the appellant's submissions were put, it is relevant both to the finding the appellant's ability to lead a normal life was not significantly impaired by the injuries suffered in the accident at the time of trial, and to the award of the $30,000. His Honour said - " ... and that whatever reservations I have expressed about the ongoing effect of the condition of the wrist and the extent to which it is properly attributable to the motor vehicle accident, there is evidence to suggest that the plaintiff may continue to find it difficult, if not impossible, to obtain that particular form of employment. Having had that avenue excluded from the range of possibilities open to him, I am equally satisfied that finding alternative employment that is within his capacity will also continue to be a matter of some difficulty. In those circumstances the plaintiff is entitled to a cushion to reflect the reduction in the range of choice of employment which is attributable to the motor vehicle accident even though that may only be a proportion of the accumulative effect of other circumstances."

15 Given that prior to the accident there had been a stabilisation by the fibrous union, his Honour accepted that the accident caused the need for the post-accident surgery at the time it was carried out. The last words are important. The award of out of pocket expenses followed, although it could have been said that, if there may have been a need for similar surgery at some future time his Honour was a little generous to the appellant. Again perhaps generously, given his findings, his Honour said that he was prepared to accept "that at least some relief of an ongoing and permanent kind can be properly associated with the motor vehicle accident," and awarded $2,500 for future cost of analgesics for that purpose. 16 It will be seen that his Honour was faced with the need to assess first, the appellant's condition at the time of trial, and secondly, the extent to which his condition was attributable to the accident. He considered that there was inconvenience and possibly pain on some occasions associated with the left shoulder, and that of the scarring around the right wrist most could be attributed to the accident. He accepted that there was some ongoing pain and discomfort and limitation on the use of the wrist, although the ongoing problems were described by his Honour as relatively modest, but he questioned whether what he called "a sufficient proportion" could be attributed to the accident. More specifically in relation to the effect on impairment of the appellant's ability to live a normal life, he referred also to the appellant's claim that a consequence of the accident was to seriously disturb his sense of well being and leave him in a state of depression, but found the kind of depressive state in which he was prepared to accept that the appellant found himself was not materially different from the condition the appellant had endured for many years prior to the accident. 17 His Honour's conclusion in relation to impairment of ability to lead a normal life, following reference to certain principles relating to burden of proof which were not in dispute on the appeal, was expressed as follows - "Keeping those principles in mind, and for reasons which I have now canvassed at various points in the judgment, I am satisfied that on balance the plaintiff has failed to pass the threshold imposed under s 79 as that has been interpreted. At best, the condition which the plaintiff now finds himself in would be borderline if it were solely attributable to the motor vehicle accident. In view of the evidence that at least part of that condition is properly attributed to a series of events going back as early as 1979, I am of the view that the plaintiff has failed to meet the onus which the plaintiff bears to show that as at the present time there is a significant impairment attributable to the motor vehicle accident as distinct from any other cause, and therefore that there are no damages recoverable for non-economic loss."

18 The appellant's submissions did not really take issue with the factual findings and assessments underlying the denial of damages for non economic loss. In essence the appellant asked this Court to reach a different conclusion, but it was said that his Honour had failed to pay adequate regard to one item of evidence and had, as it was put, misled himself in another respect, and that those deficiencies provided particular reason for this Court to come to a conclusion different from that to which his Honour came. 19 The item of evidence was a sentence in the report of Dr Herbert dated 22 February 1996. Dr Herbert reviewed the appellant and found that his right wrist appeared to be doing well with an excellent range of motion and increased strength, but that his radial nerve was completely numb. By this time, according to the report, the x-rays showed a sound union of the fracture. Dr Herbert said, "I have suggested to Mr Rajcoomar that he could consider seeking less heavy manual work as there is a risk of further injury to his hand due to the numbness". 20 It was submitted, relevantly not only to impairment of ability to lead a normal life but also to economic loss, that his Honour had paid insufficient regard to the fact that Dr Herbert had seen a risk of further injury to the hand due to the numbness, and had seen it as something warranting considering seeking less heavy manual work. This meant, according to the submission, that his Honour had weighed the impact of the numbness on the appellant's earning ability too lightly and, in consequence, had not paid adequate regard to the impact on the appellant's earning ability when coming to his conclusion as to the impairment of the appellant's ability to lead a normal life. 21 It was further said that the structure of his Honour's reasons contributed to this, in that he came to his conclusion as to impairment of ability to lead a normal life prior to considering economic loss. This gave rise to the misleading of himself propounded by the appellant, because it was said that his Honour only fully dealt with the impact of the accident on the appellant when considering economic loss and did not give it sufficient attention earlier in his reasons. 22 Attractively presented though the argument was, I am not persuaded by it. 23 The passage from his Honour's reasons which I first set out, in which his Honour found that the numbness did not make it dangerous for the appellant to undertake activities such as those associated with the trade of boilermaker/welder, appeared prior to his Honour's consideration of impairment of ability to lead a normal life. To my mind it was obviously part of what was picked up when his Honour referred back to the "reasons which I have now canvassed at various points in the judgment." That passage gives colour to his Honour's later reference to a possible degree of danger and indicates that the possibility and degree were, in his Honour's view, slight. I do not see his Honour's conclusion in this regard as inconsistent with the sentence in the report of Dr Herbert. Dr Herbert was speaking in February 1996. His Honour was coming to his view on all the evidence before him in 1999, and I see no reason why his Honour should not, consistently with what Dr Herbert had said, have come to the views to which I have referred. That being so, it seems to me that it can not really be said that insufficient regard was paid to the numbness, either in the conclusion to which his Honour came about the effect on the appellant's earning capacity or in the conclusion to which his Honour came about impairment of ability to lead a normal life. 24 More specifically in relation to the conclusion about economic loss, I think it a misreading of his Honour's reasons to say that he so regarded the condition of the appellant's wrist, particularly the numbness, as to attribute difficulty or impossibility of finding employment as a boilermaker/welder to the accident. His Honour was really saying, to my mind, that in the light of the evidence the appellant would in any event have had difficulty in obtaining employment, the important phrase being "may continue to find". Reading the relevant passage as a whole I think that his Honour was saying that the reduction in the range of choices of employment was certainly not wholly attributable to the accident, and indeed was contributed to by the accident only to a very small extent. 25 Returning to impairment of ability to lead a normal life, no doubt minds can differ as to what amounts to a significant impairment of the ability to lead a normal life. However, just as assessing the proportion of a most extreme case involves questions of facts and degree, matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment (see Dell v Dalton (1991) 23 NSWLR 528 at 533), so also does assessment of significant impairment of the ability to lead a normal life. What has been called the discretionary approach attracting appellate consideration guided by what was said in House v The King (1936) 55 CLR 499 should be taken on appeal, see Moran v McMahon (1985) 3 NSWLR 700, and in circumstances such as the present the trial judge's conclusion will not readily be disturbed. 26 In my opinion his Honour's conclusion was readily open and indeed I consider it to have been correct. 27 Returning then to economic loss, after stating his conclusion in relation to non economic loss his Honour said - "I come finally then to the question of economic loss. I have already dealt with the subject of medical and related expenses. It remains only then to deal with the question of earning capacity. It was conceded by Mr Baker on behalf of the plaintiff that at best this was a case for the award of a buffer or cushion representing some general diminution in the plaintiff's earning capacity which could not in any precise way be calculated weekly loss of income."

In the following paragraphs his Honour referred to the appellant's employment being interspersed with shorter periods of unemployment as a characteristic feature of his employment history, his unemployment at the time of the accident being not unusual, and to significant absenteeism in the past even while employed. He considered the picture as one of a degree of instability in the appellant's employment history and a future of a continually interrupted work history. After further discussion, his Honour came to the conclusion which I have earlier set out, in which he awarded $30,000 as a cushion. 28 The appellant submitted that his Honour had confined his attention to future economic loss, and had omitted to consider damages for past economic loss. It was said that, it having been found that the accident was the reason for the surgery in 1994 and 1995, there must have been some economic loss suffered in the period prior to the operations and whilst the operations and recuperation affected the appellant's use of his wrist. This, of course, took matters well into 1995, when the accident had occurred in March 1994. It was pointed out, correctly, that there was no specific reference in his Honour's reasons to loss of earnings over this period. 29 The absence of specific reference may have been due to the absence of any relevant submission from the appellant's counsel at the trial (not his counsel on the appeal), which we can see because we have the benefit of a transcript of the submissions. Be that as it may, in my opinion his Honour was addressing economic loss in general, including past economic loss. It was quite appropriate to depart from the conventional separation of past economic loss and future economic loss, and to award what was described as a cushion representing general diminution in the appellant's earning capacity, given the employment history, the recognition that any diminution in earning capacity was only in part attributable to the accident, and the possibility that the appellant would have had to undergo surgery at some time even if the accident had not occurred. It must not be forgotten that damages for both past loss and future loss are awarded to an injured plaintiff because the diminution of his earning capacity is or may be productive of financial loss, see Husher v Husher (1999) 197 CLR 138. I do not think there was this error of omission. 30 The appellant submitted that there was nonetheless an error of inadequacy, because of the clear effect on earning capacity of undergoing the surgery in 1994 and 1995. It was said that this must have accounted for a substantial part of the cushion for past economic loss, and that taken overall, the cushion was insufficient for both past economic loss and for future economic loss for a man with a working expectancy at the time of the trial of just over 23 years to the age of 65. 31 However, the appellant was unemployed at the time of the accident and, from his history, there may well have been a significant period of unemployment even if the accident had not occurred. Further, on his Honour's findings, the accident may only have accelerated the occasion on which the surgery would in all probability have had to be performed, so that at some time there may have been an interruption to the appellant's availability for employment in any event. As to the future, again the appellant's employment history and the relatively small contribution of the accident to impairment of his earning capacity had to be borne in mind. Insofar as the appellant ended up with a better wrist than before the accident at an earlier time than might otherwise have occurred, it is not easy to see that the accident materially contributed to exclusion of employment as a boilermaker/welder from the range of possibilities open to the appellant, or that the accident materially contributed to any difficulty in finding any alternative employment within his capacity. Bearing all these matters in mind, however, a cushion could have allowed for the perhaps ephemeral or unanticipated consequences of the accident, covering both the period prior to the trial and the future, and that I think is what his Honour intended. By no means, in my opinion, was $30,000 an inadequate amount. 32 Notwithstanding that everything which could have been said in support of the appeal was carefully put on behalf of the appellant, in my opinion the appeal must be dismissed. The challenge to the order for costs does not arise. I propose that the appeal be dismissed with costs. 33 POWELL JA: I agree. The orders of the court, thus, are that the appeal is dismissed with costs. (Argument as to costs) 34 POWELL JA: The court is of the opinion that, the appellant having appealed and the matter having been dealt with, as is apparent from the judgment of Mr Justice Giles as delivered, with a great deal of consideration by the court, it would not be regarded as a hopeless appeal. The conventional order for costs will apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.