RICKY WK LEE v RADICA AVRAMOVIC [1991] NSWCA 171

RICKY WK LEE v RADICA AVRAMOVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 16 April 1991

[1991] NSWCA 171

Avramovic, a motor mechanic injured in accident for which Lee accepts responsibility. Avramovic has persistent complaints resulting from injury which prevents him from doing his normal work. At trial, there are dissenting medical opinions. Trial judge prefers plaintiff's medical evidence. After 30% discount due to pre-existing medical condition, Avramovic awarded $332,248.

Held: (1) Trial judge was entitled to make express findings based on the demeanour of the plaintiff. (2) Trial judge reflected the possibility of the emergence of the underlying condition in the degree of discount.

Abalos v Australian Postal Commission (1991) 65 ALJR 11 considered.

Meagher JA This is an appeal by the appellant, who was the defendant before his Honour Judge McGuire, who gave a judgment in favour of the plaintiff, the present respondent, on 13 May 1988.

The plaintiff was injured in a traffic accident on 18 January 1984 for which the defendant accepts responsibility.

The plaintiff had been born in Yugoslavia in May 1949 where he qualified as a motor mechanic and, on his arrival in Australia in 1977 until the date of the accident, he worked continually as a motor mechanic. Moreover, his work was so thorough that he regularly worked overtime. There was no challenge to the fact that he was a very industrious worker.

The accident had the following results: the plaintiff sustained a whiplash injury to his upper spine which caused severe aggravation of a pre-existing but symptomatic degenerative condition of the C5/6 level. He also sustained injury to his low back. Ever since the accident he has suffered severe headaches of several hours duration, on average of two to three times per week, constant pain in the region of the right arm and shoulder, a pins and needles sensation in the right arm particularly if he exerts effort with it or if a twisting motion is involved. He has back pain when there is prolonged walking, sitting or twisting movements and, as far as his neck is concerned, he has difficulty in turning his neck and feels it unsafe for him to drive. In fact he was in pain most of his life. Those facts are found, in my opinion, as facts by his Honour. Mr Shore, in a very able attempt to demolish his Honour's argument, invited us to read them as a mere recitation of the plaintiff's complaints. In my opinion they are nothing of the sort. They are actual findings of fact.