Khan v Polyzois [2006] NSWCA 59 (12 April 2006)

CITATION: Khan v Polyzois [2006] NSWCA 59

FILE NUMBER(S):

40755/04

HEARING DATE(S): 20/02/2006

DECISION DATE: 12/04/2006

PARTIES:

Applicant - Hamid Khan

Respondent - John Polyzois

JUDGMENT OF: Mason P Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2988/03

LOWER COURT JUDICIAL OFFICER: Twigg ADCJ

COUNSEL:

Applicant - Mr S.D. Kalfas SC

Respondent - Ms S. Norton SC with Ms L. Goodchild

SOLICITORS:

Applicant - Australasian Medical Insurance Ltd

Respondent - Brydens Law Office LP

CATCHWORDS:

Medical negligence

Damages

Civil Liability Act 2002

LEGISLATION CITED:

Civil Liability Act 2002 - ss 13, 16, Part 2

Workers Compensation Act 1987 - ss 66, 67, 151Z

DECISION:

1) Appeal upheld

2) Judgment for the respondent be set aside and in lieu thereof there be judgment for the appellant

3) The judgment monies of $86,204.00 paid into the District Court on behalf of the appellant on 5 October 2004 pursuant to order of Judge Twigg made on 20 September 2004 together with any interest that has accumulated thereon be repaid

4) The respondent pay the appellant’s costs of the appeal and in court below and is to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40755/04

MASON P

HISLOP J

12 April 2006

Hamid KHAN v John POLYZOIS

JUDGMENT

1 MASON P: I agree with Hislop J.

HISLOP J:

Introduction

2 On 8 September 2001, the respondent, in the course of his employment with Target Australia Pty Limited (“Target”), sustained injury whilst lifting a table. The injury resulted in torsion of the respondent’s left testicle. On 9 September 2001 the respondent consulted the appellant, a general medical practitioner, in respect of his injury. The appellant failed to diagnose the testicular injury.

3 On the following day the respondent consulted another general practitioner who correctly diagnosed the injury and arranged for the respondent’s urgent admission to hospital. Unfortunately, due to the delay in diagnosis, the testicle had become necrotic and had to be removed.

4 The respondent recovered damages from the appellant in the District Court on the basis the appellant had been negligent in failing to diagnose the injury.

5 The damages were assessed by the Court at $86,622.70 comprising:

Non economic loss (30% of a most extreme case)

$88,500.00

Past out of pocket

expenses (agreed)

$418.70

Past wage loss

$2,704.00

Future economic loss

$30,000.00

TOTAL

$121,622.70

Deduct Workers Compensation lump sum

$35,000.00

NET TOTAL

$86,622.70

6 The damages were calculated pursuant to the provisions of Part 2 of the Civil Liability Act 2002 (“the Act”). A credit was allowed for the $418.70 past out of pocket expenses as they had been paid by Target.

7 The appellant has appealed, by leave, from the decision of the District Court. The appeal is limited to damages. The appellant contends:

a) The award of damages for non economic loss is excessive.

b) The trial judge erred in awarding damages for future economic loss.

c) If damages for future economic loss are recoverable then the award of $30,000 is excessive;

d) His Honour erred in not deducting from the damages for future economic loss an amount representing the respondent’s entitlement to future workers compensation payments.

e) His Honour erred in awarding damages for past economic loss in that he failed to offset the respondent’s entitlement to weekly payments of workers compensation.

8 The respondent, by notice of contention, seeks to support his Honour’s decision to award a buffer of $30,000 for future economic loss on the basis there is a permanent impairment of the respondent’s capacity to work in a range of occupations requiring lifting.

Background facts

9 The respondent was born on 14 February 1981. At the time of injury he was a single man who lived with his parents. He enjoyed good health and whilst at school engaged in a number of sports including competition soccer and basketball. He obtained the Higher School Certificate. He considered himself an average student. His father was a painting contractor and on leaving school at the end of 1998 the respondent commenced to work with his father in that business. The work involved some heavy lifting in relation to ladders, scaffolding and bulk paint drums. In December 2000 the respondent left that employment and commenced casual work with Target in customer service.

10 As a result of his injury, the respondent was absent from his employment with Target for approximately 13 weeks. He then returned to that employment and continued until recommencing work with his father in the painting business in August 2002. On 12 May 2004 he took employment as an assistant service co-ordinator with Maiko, a commercial maintenance property company. He remained in that employment at the time of trial. The respondent’s work there was to organise contractors to carry out work at commercial premises. This involved no lifting work on his part. He received a salary of $570 net per week which was substantially more than his earnings with his father or at Target. He proposed to commence a two year structural engineering course which, if successfully completed, would improve his earning capacity.

The effect of the injury on the respondent

11 The respondent was in considerable pain on the day following the injury which pain became more intense leading to the operation. He was in hospital for two days and suffered “a fair bit of pain” whilst there. On return home he was confined to bed for roughly two weeks and generally confined to home for about two months. He was required to wear incontinence pads for a month to a month and a half and, no doubt, suffered pain, discomfort and embarrassment during much of the period he was absent from work. He gave evidence he felt less of a man than before the operation and that he was embarrassed to let people know what had happened.

12 However the respondent’s physical recovery was uncomplicated. Dr Rochford, a urologist qualified on behalf of the respondent, reported (20 May 2003):

At this stage he has no ongoing disability apart from the loss of a left testis. His capacity and fitness for work is unchanged and is normal. He will have no ongoing physical disabilities.

13 The respondent gave evidence he did not have any physical problems these days and the scar area was pain-free. A complaint of an occasional shooting pain from the anus to the scrotum and some odd trickling sensation recorded by the psychiatrist, Dr Robertson, was not mentioned by the respondent in evidence and presumably was either no longer a problem or not of significance. Although the respondent had a permanent disfigurement due to the injury he has chosen not to have a prosthesis. He said he has avoided heavy lifting and contact sports for fear of injury to his remaining testicle.

14 During the initial period the respondent was concerned his injury may prevent him from marrying, having children and affect him in any intimate relationship. He told his GP, Dr Blows, he was very upset that the treating urologist had advised him not to do heavy lifting or engage in contact sports. He complained of headaches, difficulty with sleeping, poor appetite and lack of interest. Dr Blows commenced to treat him with antidepressants. The respondent gave evidence he had taken anti-depressants for two weeks, they had helped him and he had discontinued their use after a short time. He said his depression had not come back enough to cause him to again resort to antidepressants.

15 The respondent’s initial concern as to whether his injury would him prevent him marrying, having children or affect any intimate relationship has been somewhat allayed as since that time he has formed a romantic attachment with a young lady who he proposed to marry. A semen count taken in November 2001 was reported to be normal though the count (20) was at the bottom of the normal range of 20 – 250. The urologists Drs Rochford and Taylor considered the respondent’s fertility should not be significantly affected. Dr Taylor reported:

The chances are that he will father children without a problem.

Dr Conrad was less optimistic, but as he is a surgeon, the opinions of the urologists were preferred by his Honour, as was appropriate. No claim is made for loss of fertility but damages are sought on the basis it is a matter of concern to the respondent that his fertility may be compromised or his marital relations affected.

16 Dr Robertson, who was qualified on behalf of the respondent, reported (17 June 2003):

... did not impress as significantly depressed ...

I think that, as a result of the surgical removal of his testis, your client has developed a diagnosable psychiatric disorder. This can probably best be diagnosed as an Adjustment Disorder with anxious and depressed mood.

He has been given advice by his treating urological surgeon, but he seems to have taken this advice somewhat to extremes, as has his mother, with the result that he has been, in my opinion, “wrapped in cotton wool” or otherwise over-protected. I do not see any medication or counselling is likely to help him, except advice from a specialist which delineates more accurately what is truly dangerous for him to do, as compared to activities which may carry some theoretical risk. In addition, it was my impression that his mind has not been set entirely at rest with regard to the possible effects of the loss of one testicle on his likely sexual function in the future. This, in particular needs to be spelled out very clearly to him, otherwise he is likely to run into major difficulties with his marital relationship.

With these measures one might expect to see a significant degree of improvement, although it is impossible to predict how far the improvement will go.

17 Dr Lee, a psychiatrist qualified on behalf of the appellant reported (3 February 2004):

I do not think that he currently has a diagnosable psychiatric disorder as a result of the accident. He describes some fear of the loss of his remaining testicle, and loss of self-confidence ... If he has sexual problems when he gets married, he may need to consult a medical practitioner for advice. If he is too apprehensive, he may require a referral to a sex therapist or psychologist, but again, this is difficult to predict. ... It appears that he was predisposed by anxious personality traits to the incident precipitating in him a mild adjustment disorder with anxiety and depression for a brief period, which was treated with Aurorix.

Discussion

Non economic loss

18 Section 16 of the Act provides:

(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table ...

19 Section 16 requires that the severity of the respondent’s non economic loss be calculated as a proportion of a most extreme case. The type of cases normally considered as falling within the expression “a most extreme case” are those of severe brain damage, quadriplegia and the like. Effect must be given to the intention of the legislature by initially determining the appropriate proportion rather than a monetary sum.

20 The Trial Judge awarded 30% for non economic loss. His reasons were:

The plaintiff had suffered a significant injury, which caused him physical and emotional disturbance .... He did suffer depression and does have genuine but misguided anxiety concerning his future sexual capacity. I have no doubt that time will demonstrate that there is no need for future anxiety.

21 The appellant submitted his Honour’s assessment of 30%, having regard to the evidence, was so unreasonable and unjust as to warrant the intervention of this Court. The appellant submitted the upper limit of the appropriate range was 20% of a most extreme case.

22 Senior counsel for the respondent supported his Honour’s assessment and stressed the respondent’s youth, that he has been disfigured for life and that he has legitimate concerns for his future.

23 The parties referred to a number of decisions of this Court pursuant to s 17A of the Act. Section 17A permits the parties to bring to the Court’s attention awards of damages for non-economic loss for the purpose of establishing the appropriate award for non-economic loss in the proceedings. This legislative change to the law as stated by the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 was intended to foster the development of a system of tariffs – that is, conventional amounts (or ranges of amounts) for different types of injury based on court decisions - see Review of the Law of Negligence: Final Report, September 2002. The cases referred to by the parties related to assessments of injuries to other parts of the body. As such I found them of little assistance.

24 In Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 49 ALJR 281 at 285 Gibbs J said:

Whether the assessment (of damages for personal injuries) was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.

The same principle applies to the assessment of the appropriate proportion of a most extreme case.

25 In this case, in summary, the respondent suffered pain, embarrassment, anxiety and depression for some months following the injury. However he has been left with no physical disability. He has disfigurement in a part of the body normally covered by clothing and in respect of which he has declined a prosthesis. He has some anxiety as to the possible effect of the injury on his marital relationship and fertility, which fears the trial judge considered misguided. He has avoided heavy lifting and contact sports for fear of injury to the remaining testicle. The consequence of injury to the right testicle would be much greater by reason of the loss of the left testicle, though the risk is remote.

26 Cases that are assessed below 15% of a most extreme case typically are cases of soft tissue injuries which heal relatively rapidly. The respondent’s injury is more significant than that but well short of approaching one third of a most extreme case. In my opinion the appropriate ratio is in the order of 1:5 when compared to a most extreme case. Accordingly I have concluded his Honour’s assessment of non-economic loss is such as to warrant the intervention of this Court. I uphold the appellant’s submission and substitute an assessment of 20% of a most extreme case. This equates to $14,500 on the current table.

Future economic loss

27 Section 13 of the Act makes provision for the determination of damages for future economic loss. In Penrith City Council v Parks [2004] NSWCA 201 this Court held that it was open to assess damages by way of a “buffer” under that section. Counsel for the respondent submitted, for the purposes of s 13, that the respondent’s most likely future circumstances but for the injury was employment in a semi-skilled manual trade such as a house painter.

28 The trial judge awarded a buffer of $30,000. His reasons were:

... it is submitted, the probability of his injury and anxiety causing loss of work is a ‘real’ concern to him. The Plaintiff is not highly educated or skilled and injury has caused difficulties in him obtaining employment .... [The defendant submits] there should be no future economic claim because it is clear, it is put, that the worker can come back subsequently and get further compensation under the Compensation Act ... I find that there is a possibility that his injury may affect his future earning capacity. I do not share the view that a claim against his employer in future years would succeed. To my mind it may be quite difficult, years after the injury, for the Plaintiff to prove that future earning capacity problems are attributable to an injury when shifting a table in September 2001.

29 His Honour, seemingly inconsistently, had said earlier in his judgment:

For a time his earning capacity has been affected, but he has recovered his full earning capacity.

It is unclear on what basis His Honour concluded an allowance for loss of future earning capacity should be made.

30 The appellant’s primary submission was that no award of damages for future economic loss could be made on the evidence before the Court. No reliance was placed upon s 33 of the Act.

31 The respondent contended his Honour’s decision could be supported on the basis there was a permanent impairment of the respondent’s capacity to work in a range of occupations requiring lifting.

32 The respondent gave evidence he had a discussion with his treating urologist, Dr Mitterdorfer, as a result of which he understood he should not involve himself in contact or physical sports. As well as that it was his understanding that he “oughtn’t to do any strenuous lifting.”

33 The respondent gave evidence that when he returned to working as a painter with his father his father did the lifting and carrying of ladders and bulk paint drums. His father was contemplating retirement but rather than take over the business from him the respondent thought it time to find another job that wouldn’t have any physical or heavy lifting. At the time of the trial he was content to stay in his job with Maico but if he was to look for another job it would be one that did not involve lifting or carrying things of any significant weight.

34 Dr Lee recorded a history the respondent resigned from Target because he could not avoid heavy lifting of stock. The respondent gave no evidence as to his reasons for leaving Target.

35 His Honour formed a favourable impression of the respondent and accepted his evidence. I accept the respondent received some advice from Dr Mitterdorfer as to contact sports and lifting work. This advice, it would seem, was given shortly after the surgery as it was referred to in the history in Dr Blow’s report dated 7 December 2001, see also the history taken by Dr Lee. The respondent gave evidence he consulted Dr Mitterdorfer on one subsequent occasion but he could not really recall what was said on that occasion.

36 Testicular torsion can result from physical exertion in genetically predisposed persons. Accordingly a fixation of the contralateral side was performed at the operation on the 10 September 2001 to prevent the condition occurring in the unaffected testicle.

37 It can be readily accepted that a person should not engage in contact sports or heavy lifting until a reasonable time has passed following surgery of the type undergone by the respondent. However no reason is apparent why such limitation should continue thereafter particularly when the risk of a similar injury to the remaining testicle has been removed by surgery, though obviously, as Dr Conrad indicated in his report, care should be taken to avoid a direct injury to the remaining testicle.

38 Although a report and two letters from Dr Mitterdorfer were in evidence there was no reference to any limitation upon the respondent’s work capacity contained therein. Two other urologists were qualified on behalf of the respondent. They do not, in their reports, suggest there is any ongoing limitation on the respondent’s work capacity, indeed Dr Rochford expressly stated that the respondent’s capacity and fitness for work was unchanged and normal.

39 The High Court in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 3 said:

A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is that ... the diminution of ... earning capacity is or may be productive of financial loss.

40 In my opinion the evidence does not establish the respondent has any physical or psychiatric condition which would prevent him engaging in employment that involves heavy lifting. In my opinion it is more likely than not that the respondent’s avoidance of lifting work is a result of some misunderstanding between him and Dr Mitterdorfer which could be readily resolved.

41 In any event the evidence indicates that the respondent’s future employment will probably be in areas which do not require him to undertake heavy lifting. The evidence does not establish that if the only employment choice open to him was one which involved heavy lifting he would refuse it.

42 In these circumstances I have concluded that the tests in Medlin have not been met and that the appellant’s submission that his Honour erred in awarding damages for future economic loss should be upheld.

Deduction of Workers Compensation entitlements

43 The parties conducted the appeal on the basis that there was no negligence on the part of Target, that s 151Z of the Workers Compensation Act 1987 had no application and that any deduction from the verdict for Workers Compensation payments or entitlements was to be determined by the application of general principles against double compensation.

44 On 26 March 2004 Target agreed to pay the respondent $35,000 representing his entitlements under ss 66 and 67 of the Workers Compensation Act 1987. His Honour deducted the $35,000 from the verdict. Neither party has challenged that deduction.

45 The appellant submitted that the trial Judge erred in not deducting from the damages awarded for future economic loss an amount representing the plaintiff’s future entitlements to weekly compensation under the Workers Compensation Act. However, as the claim for future economic loss has failed, it is unnecessary to determine whether his Honour erred in this regard.

46 It was common ground the respondent received no payments of weekly compensation in respect of the injury. A claim made by his solicitor in a letter dated 7 July 2003 appears to have been ignored. The respondent was unaware such a claim had been made.

47 The appellant submitted there should have been no award of damages for past wage loss as an equivalent sum would be payable by Target to the respondent as weekly compensation if that claim was pressed. The respondent submitted that as a claim for weekly payments had been made and not met there should be no set-off. His Honour did not discuss or determine this issue though it was raised at the trial. It is unnecessary to determine this issue for the reasons which appear below.

Conclusion

48 In my opinion the appeal should be upheld. The damages should be reassessed. Such reassessment, assuming the assessment of past wage loss remained unchanged, would be calculated as follows:

Non economic loss (20% of a most extreme case)

$ 14,500.00

Past out of pocket expenses (agreed)

$ 418.70

Past wage loss

$ 2,704.00

Future economic loss

Nil

TOTAL

$ 17.622.70

Deduct Workers Compensation lump sum

$ 35,000.00

NET TOTAL

($ 17,377.30)

49 As the net result, on either approach to past wage loss, produces a negative result a verdict should be entered for the appellant together with costs of the appeal and in the court below.

Orders

50 I propose the following orders:

1) Appeal upheld;

2) Judgment for the respondent be set aside and in lieu thereof there be judgment for the appellant.

3) The judgment monies of $86,204.00 paid into the District Court on behalf of the appellant on 5 October 2004 pursuant to order of Judge Twigg made on 20 September 2004 together with any interest that has accumulated thereon be repaid.

4) The respondent pay the appellant’s costs of the appeal and in court below and is to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

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LAST UPDATED: 13/04/2006