IVAN MAKRAGIC y GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES STANICA MAKRAGIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA, KIRBY P and HANDLEY JA 1 June 1990, 1 June 1990 [1990] NSWCA 117 DAMAGES — Motor vehicle incidents — Actions by male and female plaintiffs — Consolidated proceedings — In actions by male plaintiff trial judge enters judgment for defendant — held: Doubts about the extent of injuries do not sustain disbelief that injuries, proved by the evidence, actually occurred — Other errors of factfinding — Judgment for defendant set aside — Upon a reassessment judgment entered in favour of male plaintiff. DAMAGES — Motor vehicle injuries — trial judge enters judgment in favour of female plaintiff for $500 in respect of one incident — Awards no damages in respect of another incident where negligence was shown — held: The plaintiff was entitled to recover damages in respect of the incident where the trial judge entered judgment against her — The damages awarded were inadequate — Judgment set aside — On a reassessment, judgment entered in favour of plaintiff in a larger sum Meagher JA Mr Ivan Makragic and his wife, Mrs Stanica Makragic, have had the misfortune to have been involved in three motor car accidents in recent years: one at Canley Vale on 11 May 1985, one at Cabramatta on 29 May 1986 and one at West Pennant Hills on 3 February 1987. The respondent Government Insurance Office was responsible for the conduct of the negligent driver in each case. Mr Makragic has sued in respect of all three accidents. Mrs Makragic has sued in respect of the first and third accidents, not suing in respect of the second, because she was the negligent driver involved on that occasion. All five matters were heard in a consolidated action before McDevitt DCJ, who concluded that virtually no injuries were incurred by either Mr Makragic or Mrs Makragic in any of the three accidents. In this regard, His Honour's language is somewhat curious as he does not deny that injuries existed; what he does deny was they were casually related to the accidents. His Honour awarded Mrs Makragic a small verdict and Mr Makragic no verdict at all. They have both appealed. In my view, His Honour's reasons for judgment cannot be sustained. I shall now give my reasons as far as Mr Makragic's appeals are concerned. In the first accident at Canley Vale, a vehicle driven by a Mr Hans Akil, who was not called by the present respondent, the defendant below, drove into a vehicle in which in which Mr and Mrs Makragic were passengers and which was driven by a Mr Bojic. His Honour found that Mr Akil's vehicle was negligently driven, but he found that Mr Makragic suffered no injury as a consequence of the accident. Dr Strinich, who saw him after the accident, diagnosed soft tissue injury and referred him to Dr Bannister, who noted injuries to the neck, right shoulder and right elbow. Dr Bannister concluded: "This man has sustained soft tissue bruising injuries to his spine and shoulders. He has tenderness over the right 2 UNREPORTED JUDGMENTS olecranon. It is too early to give a prognosis on his conditions, but I think overall his condition will stabilise and settle without further investigations". There is no evidence to the contrary. These injuries noted by the doctor were not major, though real enough. His Honour observed that Mr Makragic was at the time unemployed and unemployable, a chronic alcoholic and a chronic depressive. That does not mean that the symptoms observed by his doctors did not exist. The injuries were plainly not imaginary and could not be ascribed to a cause other than the accident. Nor did his Honour's disbelief in the more extensive injuries allegedly claimed, by which we are bound, justify disbelief of the injuries actually proved. To conclude that a plaintiff, who was involved in an accident, admittedly due to the negligence of someone for whom the defendant is responsible, and suffered injuries thereby, which are verified by his doctors and not contradicted by anyone else, is entitled to an award of damages against the defendant is such an elementary step that one wonders what reason induced His Honour not to take it. There seems to be three reasons. In the first place, he seized on Mrs Makragic's description of the accident as "just a bang" and her statement that she did not know if the other vehicle was damaged. That is not a fair summary of Mrs Makragic's evidence She said that the other vehicle was, to her observation, damaged, but could not describe the nature or precise location of the damage. She also said that the vehicle in which she was travelling was damaged. Moreover, even if the accident could adequately be described as "just a bang", it was plainly a "bang" which injured her husband. In the second place, His Honour said: "Upon seeking medical treatment the next day, this plaintiff was told by Dr Strinich that he was too busy to see him. Some three days later, since he wanted to consult a doctor who spoke his own language, the male plaintiff tried to consult Dr Hodoba, but was told that the doctor was not taking any more workers' compensation cases. I am not persuaded on the balance of probabilities that the male plaintiff has suffered any damage as a result of the accident on 11 May, 1985. He had been consulting Dr Strinich nearly every week prior to the first accident, since that doctor was supervising his case along with Dr Chuskhivic." These statements of fact are simply wrong. Mr Makragic did see Dr Strinich either the next day or shortly thereafter. He did not seek to see Dr Hodoba and was not repulsed by him. He had not been consulting Dr Strinich on his own problems every week; he had been seeking that doctor every fortnight, not only for himself, but also for his wife and four children. In the third place, His Honour seemed to place some reliance on the fact that Mr Bojic was not called as a witness, although somewhat illogically, refusing the plaintiff a request to call him; but this overlooks the fact that if Mr Bojic was called, he could only have testified as to Mr Akil's negligence, which His Honour was prepared to find established, and not to Mr Makragic's medical condition, as to which he was not qualified to speak. None of these three reasons in isolation therefore, nor any combination of them, can elucidate what appears to be an inexplicable and, in my view, inexcusable conclusion. In view of Mr Makragic's unemployment and unemployability, he was entitled to no damages for economic loss, but he was entitled to general damages. In view of the comparatively minor injuries suffered, I would propose an award of $5,000 by way of general damages for the first accident. UWAAN MAKRAGIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES STANICA MAKRAGIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JA) As far as the second accident at Cabramatta is concerned, His Honour found that Mrs Makragic, in whose vehicle Mr Makragic was a passenger, was negligent. This is not in dispute. The respondent is liable for her negligence. Neither is that in dispute. The sole remaining question is whether Mr Makragic sustained any damage attributable to that accident. His Honour held that he did not, but he did so without tedious or any reference to the evidence. Dr Hodoba said that this accident resulted in headaches and pain to the neck and lower back. He concluded that it had aggravated Mr Makragic's pre-existing degenerative process. Those conclusions were verified by Dr Beran, who also opined that of the three accidents, the second was the most significant. This medical evidence of these two gentlemen is not inherently improvable and was uncontradicted There is no reason why His Honour could legitimately disbelieve it. Mr Makragic is entitled to a further $10,000 in respect of this accident. As far as the third accident at West Pennant Hills is concerned, His Honour does not specifically find that it was due to the other driver's negligence, but such a finding is, I think, implicit in his reasons and is, in any event, justified by the evidence. However, Drs. Bannister and Chowdhury both gave evidence that it caused injury to his left hip and left knee, resulting in soft tissue injury. Again, there is no reason to reject this evidence. Further general damages should be awarded and, in my opinion, in the amount of $5,000. To these amounts of general damages must be added the special damages, which are agreed in the amount of $3,202.37. I therefore propose the following orders as a composite order for all three appeals by Mr Makragic. 1. Appeals allowed. 2. Verdict and judgment for the defendant in all three appeals to be set aside. In lieu therefore, verdict for the plaintiff in the sum of $23,203.27 in respect of all three accidents. 3. Orders to take effect as from the date of the delivery of His Honour's judgment which is 31 July, 1989. 4. The respondent to pay the appellant's costs both of the appeal and the trial. 5. Respondent to have a certificate under the Suitors' Fund Act. Kirby P The orders of the Court in the appeal of Ivan Makragic are as Meagher JA has provided. In the appeal of Stanica Makragic, I will ask Handley JA to deliver the judgment. Handley JA In this case the evidence discloses that Stanica Makragic, the wifeof the appellant in the first appeal, was involved in a total of four accidents, each of which arguably caused or later aggravated her physical injuries. The first of these was the accident at Canley Vale on 11 May, 1985 when she was a passenger in a vehicle driven by Mr Bojic, in which her husband was also a passenger. This car was struck on the left by another vehicle and the defendant is responsible for the negligence of its driver. His Honour found a verdict in favour of Mrs Makragic in relation to this accident for $500 general damages. He awarded no special damages. Mrs Makragic appeals from this judgment in her favour on the ground that the damages are grossly inadequate and this Court has been invited by counsel for both parties to reassess the damages in the event that it concludes that His Honour's assessment was erroneous. The second accident which befell Mrs Makragic involved a fall at Jewel Supermarket on 22 May 1986. She was taken to hospital after this accident and instructed her solicitors to claim damages against the occupier of the supermarket. It appears that she did not disclose the existence of this accident and 4 UNREPORTED JUDGMENTS the fall she sustained to some of the doctors who examined her on behalf of the defendant or to some of the doctors who examined her on the instructions of her own solicitors. The third accident was that which took place at Cabramatta on 29 May, 1986 when she was; driving her own car and her husband and her children were passengers. This accident was the second for which Ivan Makragic has sued the defendant and for which he has been compensated by the judgment of this Court which has just been pronounced. Since she was the driver and there was no suggestion that the car ahead of her was driven negligently, she can obviously recover no compensation for the third accident. The fourth accident was that which occurred at West Pennant Hills on 3 February, 1987 when her husband was the driver and she was the passenger and the vehicle was struck from behind by another vehicle, driven by a driver for whose negligence the respondent is legally responsible. His Honour entered a verdict for the defendant in respect of the second accident brought by Mrs Makragic against the Government Insurance Office, not being satisfied that she had sustained any compensable injuries as a result of the established negligence on the part of the driver of the following vehicle. It is clear that the day after the first accident, Mrs Makragic saw Dr Strinich and he took a history which is entirely consistent with her case in relation to the first accident, for which, as I have already said, she recovered an award of $500 general damages from the learned District Court Judge. Dr Strinich, in his report of 14 June, 1985, found that the plaintiff had a restricted range of neck movements and these were associated with occipital headaches; that she was tender to palpation at the back of the neck; that there were some muscle spasm present:, (the existence of muscle spasm of course indicates the genuiness of the plaintiff's complaints at that stage) and that she also had a painful range of lumbar spinal movements, but that the pain associated with these movement was not as severe as that associated with her neck movements. She was subsequently re-assessed in April and then in May. She was still complaining of headaches and pain and stiffness in the neck and the lower part of her back. Her treating doctor anticipated a gradual improvement in her condition over time. The defendant tendered three medical reports with regard to this plaintiff, two of which were taken at a time prior to her suffering the second and third accidents and broadly support her case that she did suffer injuries to hec neck and lumbar spine as a result of the first accident. Dr Furber, in his report of 28 October, 1985 says "It is possible that she suffers injuries to the parts of her body", that is, the lumbar spine and neck which she complained of, but he was not able to find at that stage evidence on clinical examination to support her complaints and he concluded there was no permanent structural damage present. Dr Bentivoglio, who saw the plaintiff on 30 July, 1985 concluded that the plaintiff had sustained a muscular ligamentous strain to her back and neck as a result of the accident she described. Dr Bentivoglio expected that most of her discomfort would settle in the six months following the accident and did not recommend that there be any treatment, and concluded that time would resolve her complaints. The only medical report submitted by the defendant following the fourth of the accidents sustained by this plaintiff is that of Dr Smith who concluded that there were no physical signs consistent with her complaints and that the plaintiff was UAAN MAKRAGIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES STANICA MAKRAGIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JA) quite well muscled, indicating the absence of any muscle wasting and suggesting that her movements had not been significantly affected by the pain t-hat she complained of. The medical evidence of the doctors who examined the plaintiff after the fourth accident on the instructions of her solicitors, none of whom were cross-examined, suggested that there had been some aggravation of her previous injuries, but there is no suggestion that she had suffered anything particularly serious as a result of the fourth accident. In view of her two other accidents, neither of which are compensable in these proceedings, the plaintiff does face difficult problems of proof of damage in relation to the fourth accident, especially in view of His Honour's generally unfavourable approach. Nevertheless, in my view, some award of damages is appropriate. We have not been asked to sever the award of damages with respect to the two actions and, in the circumstances, I would propose an overall award of $10,000 for general damages together with the agreed out of pockets of $3,042.77, making a total of $13,042.77 and I would propose that the judgment take effect from 31 July, 1989 the date on which McDevitt DCJ delivered his reserved judgment in this case. I would therefore propose that the appeal of Stanica Makragic be allowed; that in lieu of the judgment for $500 in the first action and a verdict for the defendant in the second action, there will be substituted a verdict and judgment for the plaintiff for $13,042.77 such judgment to take effect on and from 31 July, 1989; the appellant is to have her costs of the actions in the District Court and this appeal, and the defendant is to have a certificate under the Suitors' Fund Act in respect of the costs of this Appeal KIRBY P. I agree MEAGHER JA. I also agree. Appeals of Ivan Makragic: 1. Appeals allowed; 2. Verdict and judgments in all three appeals, set aside; 3. In lieu thereof, judgment for the plaintiff in the sum of $23,203.27 in respect of all three incidents; 4. Judgment to take effect from 31 July 1989 5. The respondent to pay the appellant's cost of the appeal and of the trial; and 6. In respect of the costs of the appeal, the respondent to have a certificate under the Suitors' Fund Act 1951 Appeals of Stanica Makragic: 1.Appeal allowed; 2.Set aside the judgments entered by McDevitt DCJ; 3.In lieu thereof, enter judgment in both proceedings in favour of the plaintiff in the sum of $13,042.77 in respect of both actions; 4.Judgment to take effect from 31 July 1989; 5.The respondent to pay the appellant's costs of the actions and of the appeal; and 6.In respect of the costs of the appeal, the respondent to have a certificate under 0 the Suitors' Fund Act 1951. Counsel for the Appellant: P Menzies QC and J Keesing 6 UNREPORTED JUDGMENTS Solicitors for the Appellant: Radin and Associates Counsel for the Respondent: J Guihot Solicitors for the Respondent: Creagh and Creagh