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. Again his Honour said: post-accident the plaintiff has been unable to indulge in his normal domestic activities, he is now cranky and nervous, noise upsets him, he is annoyed by his children's presence and he is unable to play sport or games with them, visits to friends are now rare and his wife gave evidence that his personality completely changed. In addition, there was medical evidence to the effect he was mildly depressive. He resorted to taking pain killers every day and this involves continuing expense. I should add one further fact, his Honour found that the totality of the plaintiff's complaints rendered him an economic 2 UNREPORTED JUDGMENTS cripple. In this sense - that the injury prevented him from doing his normal work, and a combination of his poor linguistic skills in English and unavailability of other occupations meant that there was no chance of him taking on an occupation other than his pre-existing occupation. In those circumstances his Honour awarded the plaintiff a verdict of $332,248. Probably the most crucial evidence in the case was the medical evidence. There were opinions expressed by a large number of doctors, some on behalf of the plaintiff and some on behalf of the defendant, in which there was a very serious dispute about the genuineness of the plaintiff's complaints and about the extent of his disability. When I say - genuine and serious dispute - on these matters, I mean precisely that if one looks at the reports filed by the various medical gentlemen. The unfortunate fact was, thought, that only one of the medical practitioners concerned - Dr Corry - gave evidence. Otherwise the matter proceeded simply by tender of written medical reports on either side. Exactly why the legal practitioners who conduct this sort of case see fit to leave serious medical issues to be determined in this way I cannot imagine because the difficulties which a judge faces in making findings which would normally be based on credibility, when all he has before him is a pile of dissenting pieces of paper, are simply overwhelming. However, that is the condition his Honour was in and his Honour did the best he could in those circumstances. The medical evidence was, as one would expect on the plaintiff's part, that the plaintiff's symptoms were genuine and very considerable in extent. His Honour, in dealing with the medical evidence produced on behalf of the plaintiff, said this: "The treating doctors and the doctors qualified on behalf of the plaintiff had no difficulty in accepting the genuineness of his complaints." Mr Shore, very properly, drew our attention to the evidence of one of the doctors whose evidence was tendered by the plaintiff, Dr Gavrainic, for whom that statement would not be accurate because Dr Gavrainic said he could not make any finding as to genuineness because that depended on subjective facts, the accuracy of which he was not in a position to gauge That submission is perfectly correct but it does not seem to me to lead anywhere. After all, Dr Gavrainic was only one of a number of doctors. If one looks, for example, at the evidence of the other doctors, one finds the contrary evidence. Dr Goldrick, whose evidence was relied on by the plaintiff, said in express terms: "T consider his complaints to be genuine and to relate directly to his motor car accident." The other doctors called on behalf of the plaintiff - using "called" in a very loose sense - were expressly or impliedly of the same view. Whilst it is true that his Honour's observation is not entirely correct as to one of the doctors it is a correct general summary of the tendency of the medical evidence called on behalf of the plaintiff. On behalf of the defendant, doctors expressed a very different view. Within that different view was a wide range of opinions; some them suggested that the plaintiff's condition was entirely fabricated, others that it was merely grossly exaggerated. His Honour expressed a preference for the views of the plaintiff's medical practitioners and I see no reason why he should not have done so. His Honour accepted, as did all the doctors called both on behalf of the plaintiff and the defendant, that the plaintiff had a pre-existing but asymptomatic cervical condition and that was aggravated by the accident. He also accepted that URJ RICKY WK LEE v RADICA AVRAMOVIC (Meagher JA) 3 pre-existing conditions absent the accident would have become manifest at some stage and would have, as a result, abbreviated the plaintiff's working life. His Honour also expressed the view, which seems to me perfectly reasonable, that the gradual onset would have been signalled by symptoms of increasing severity. In view of the facts which I have recited the task which faced Mr Shore was a very difficult task and very ably he has embarked upon that task by a submission that his Honour's judgment below involves no question of acceptance of the plaintiff in the normal sense. There was no question, according to Mr Shore on this argument, of a finding on demeanour and no finding on the plaintiff's credibility, even in the extended sense of the term which is used in Abalos' case. Indeed, there was considerable mention of Abalos' case. Before Abalos there was ample authority in the High Court and in this court that, if a trial judge makes a finding based on the credibility of witnesses, there can be but very rare circumstances which would justify an appellate court in reversing it. Abalos, of course, is consistent with that. The most it does is add two dimensions to the severity of that doctrine. One is by insisting that a finding on credibility can be implied as well as expressed by further indicating that the necessary implication can be teased out of the most unlikely circumstances. The second proposition it seems to be authority for is that a finding can be attributed to demeanour in circumstances where one would have thought that conclusion could not possibly be open. But, in the present case, there is no need to resort to that universe of discourse because in the present case we are dealing with no question of implication but an express finding and an express finding obviously based on demeanour. What his Honour said was - "I hold no doubts that his" (meaning the plaintiff's) "complaints are genuine and that he is disabled in the way that he describes." One could scarcely have, I should have though, a more explicit finding, and one could scarcely have a finding more obviously based on demeanour. Mr Shore did suggest that the way in which his Honour approached this question was to reserve any finding on the plaintiff's demeanour, then deal with the medical evidence, and, having resolved the medical evidence in favour of the plaintiff, then assume that the plaintiff was telling the truth on all contested questions simply because of the medical evidence. With respect that is not what his Honour was doing. His Honour commenced with an acceptance of the plaintiff's evidence, then turned to the medical evidence and finally reverted to his initial view, that the plaintiff's evidence must be accepted. There was a film shown at the hearing below and that film has been shown to us. His Honour was perfectly correct in saying that in that film the plaintiff showed a greater freedom of movement than he showed in the court, or than he described in his evidence, but his Honour came to the conclusion - and he was in a better position to judge this than we are - that the plaintiff, in his evidence in court, was doing his best to impress his Honour as to his disabilities. His Honour found that understandable because his Honour assumed that the plaintiff thought that, without some exaggeration, no one would appreciate quite how gross was the interference he had suffered in his amenities. That finding is very much a finding based on demeanour. What his Honour is saying is - notwithstanding evidence to the contrary, I am fortified in my finding of the plaintiff's genuineness by the very fact that he chose to exaggerate his 4 UNREPORTED JUDGMENTS symptoms in these circumstances. On that basis, it seems to me, that the first substantial complaint of the appellant must fail. The second major complaint by Mr Shore was that his Honour, in dealing with future economic loss, did not properly take into account the asymptomatic underlying condition which had been aggravated. What his Honour did was this - in calculating future economic loss he said - I will take a much larger deduction than normal for the vicissitudes having regard to the probability that his working life would have been shortened or impaired by reason of the expected onset of his cervical spine symptoms arising from the pre-existing underlying pathology. If such symptoms appeared gradually he would have been in a position to adjust and most probably he would have obtained lighter or part-time work. I do not accept his economic incapacity would have been so dramatically and so suddenly destroyed as it was by the subject accident. On that basis, his Honour discounted the sum to which a plaintiff would otherwise have been entitled by the very considerable extent of 30%. Bearing in mind the lack of particularity of the evidence before his Honour which, again, is a product of the fact that only one of the relevant doctors gave oral evidence before his Honour, I see no reason why his Honour should not take that view. His Honour was conscious of the possibility that the plaintiff, even without the accident, may, at some stage, have been rendered unfit to continue his occupation. His Honour did not know when that would have occurred and his Honour did not know exactly by what stages that would have happened, nor did his Honour properly have evidence before him by which he could have adduced exactly what alternatives would have been open to the plaintiff if and when that event happened. Of necessity his Honour had to take a fairly broad approach and the approach he took was to suppose that that event would occur but that when it occurred a transition from his previous job to some other occupation would not be unlikely. His Honour was entitled, in my view, to take that attitude. It is not - as was urged upon us - inconsistent with his finding that no other occupation is available now. One reason why no other occupation is available now, according to his Honour, is because the plaintiff's general loss of amenities is such that he is unable to pursue the study of English, whereas if the accident had not taken place and the underlying condition did gradually take hold of him, presumably it would not have left him in such a shattered condition that he would then be unable to continue the pursuit of his linguistic skills. In these circumstances his Honour reflected the possibility of the emergence of the underlying condition absent the accident in a way which seems to me perfectly sensible, and it was certainly open to him. It is reflected in the degree of discount which he gave. In my view, his Honour had not been shown to have made any error of fact or law and there is no occasion for appellate interference in his judgment. I would therefore propose that the appeal be dismissed with costs. Mahoney JA I agree. Priestley JA I also agree. The order of the court, therefore, is the appeal will be dismissed with costs. Counsel for the appellant: HG Shore Counsel for the Respondent: LA Levy URJ RICKY WK LEE v RADICA AVRAMOVIC (Priestley JA) Solicitors for the Appellant: R O'Reilly, GIO, Hurstville Solicitors for the Respondent: Vandenberg Reid Pappas and Macdonald