FEDERAL COURT OF AUSTRALIA Kosev v ACTTAB [2001] FCA 731 JOHN KOSEV v ACTTAB A 70 of 2000 WILCOX, WHITLAM and MADGWICK JJ 18 MAY 2001 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 70 of 2000 DISTRICT REGISTRY ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JOHN KOSEV APPLICANT AND: ACTTAB RESPONDENT JUDGE: WILCOX, WHITLAM and MADGWICK JJ DATE OF ORDER: 18 MAY 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 70 of 2000 DISTRICT REGISTRY ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JOHN KOSEV APPLICANT AND: ACTTAB RESPONDENT JUDGE: WILCOX, WHITLAM and MADGWICK JJ DATE: 18 MAY 2001 PLACE: CANBERRA REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal by John Kosev, who was the plaintiff in an action in the Supreme Court of the Australian Capital Territory in a personal injuries claim against ACT TAB. The trial judge, Crispin J, found liability proved and awarded Mr Kosev damages in the total sum of $133,810.33. An appeal was filed by Mr Kosev alleging insufficiency, or inadequacy, of damages. There was a cross appeal against his Honour's finding on liability; but we were informed today that the cross appeal has been discontinued. 2 In relation to an appeal as to damages, it is desirable to refer to the principle which has been mentioned in many cases, and was re-affirmed by Gallop J in Parkinson v Kuehnast, 20 December 1996, when his Honour was sitting in this Court. Gallop J said on that occasion: "Before an appellate court interferes with an award of damages it should be satisfied that the trial judge acted on a wrong principle of law or misapprehended the facts, or for these or for other reasons, made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere either on the ground of excess or insufficiency." 3 These comments have particular resonance in the present case for several reasons. First, a great deal depends upon the impression made on the trial judge by the appellant, both in regard to the extent of the disability he suffered and the effect of that disability on his earning capacity. Regrettably, from the appellant's point of view, the trial judge was not impressed with him; he found that the appellant was not a credible witness and had exaggerated his symptoms. This assessment of his client was not challenged by Mr B A Meagher, counsel appearing for the appellant today. 4 Secondly, at the trial a number of video films were shown. They depicted the appellant carrying out various activities. We have not had the benefit of seeing those videos. It follows that the Court is in a position of disadvantage, perhaps exceeding the normal disadvantage of an appellate court, in differing from the trial judge's assessment of the appellant. 5 Thirdly, the appellant's counsel, who were particularly experienced in personal injury claims, were apparently unable to elicit any meaningful evidence from their client as to any effect on his income of the injury he sustained. 6 At the time of the accident, the appellant was operating a takeaway food business in Ainslie, close to the TAB where he suffered his injury. He said in evidence that he sold this business a couple of months after the accident. He gave some general evidence about problems in lifting, after the accident, but there was no serious attempt to describe the consequences of the injury, in terms of his ability to operate the takeaway food store. There was no disclosure of his activities in the takeaway food shop, so that the judge could relate those activities to the disabilities which he found to exist. Nor was there any attempt to indicate what might have happened after the sale of the store, if the injury had not been sustained. The appellant only said he was not working. However, he carried out some activities, which were the subject to the videotaped evidence. 7 The award made by the trial judge comprised $35,000 for general damages, to which he added interest, $30,000 for past economic loss, to which item also he added interest, and $30,000 for future economic loss. 8 In my opinion, and particularly having regard to the extreme difficulties faced by the trial judge in assessing damages in this case, it cannot be said that any of these individual items, or the total amount awarded, was so significantly inadequate as to attract the intervention of an appellate court. Because of the medical evidence, the judge accepted that the plaintiff had a genuine injury to his cervical spine warranting surgical intervention. But, as I have said, the consequences of that injury were left up in the air. The judge was left to make the best of a bad job, in terms of the evidence available to him. He selected figures, fairly much on a global basis, with very little material to support any particular figure. I think he did the best he could, under difficult circumstances. I am not prepared to say his assessment is manifestly inadequate or represents a wholly erroneous estimate of the plaintiff's damage. 9 I would dismiss the appeal. WHITLAM J: 10 I agree generally with Wilcox J, for the reasons his Honour gives, that the trial judge made no error in his assessment of the damages of the appellant and that the appeal should be dismissed. MADGWICK J: 11 I also agree generally with the reasons of Wilcox J and with the result that his Honour proposes. I certify that the preceding eleven (11) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Whitlam and Madgwick. Associate: Dated: 22 October 2001 Counsel for the Appellant: B A Meagher Solicitor for the Appellant: Capital Lawyers Counsel for the Respondent: F J Purnell SC Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 18 May 2001