CHRISTALLI and ANOR v CASSAR SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION KIRBY P, POWELL JA and COLE JA 12 October 1994, 12 October 1994 [1994] NSWCA 48 DAMAGES — non-economic loss — comparison to a most extreme case — held: Age of plaintiff is to be considered. Rees v Rees (1994) NSWJB 21 followed. DISTRICT COURT - reasons - disposal of action for damages - desirability of formal reasons not decisions in continuous dialogue with counsel. Palmer and Ors v Clarke and Ors (1989) 19 NSWLR 158 referred to. DAMAGES - Motor Accidents Act 1988, s79 - non-economic loss - comparison of case to "a most extreme case" - consideration of plaintiff's age - primary judge (Madgwick DCJ) declines to take age into account - later authority of Court of Appeal in Rees v Rees, Court of Appeal (NSW), unreported, 28 February 1994; [1994] NSWJB 21 requires age to be considered - appeal against determination of percent for non-economic loss - held (Kirby P; Powell JA and Cole JA concurring): (1) In performing the discretionary function under s79 Motor Accidents Act 1988, the primary decision-maker must take into account the plaintiff's age. Southgate v Waterford (1991) 21 NSWLR 427 (CA); Rees v Rees (unreported), Court of Appeal (NSW), 28 February 1994; [1994] NSWJB 21 applied; (2) Although an error of principle had been demonstrated, it was not one which affected the correctness of the ultimate order made; (3) Appeal dismissed. DISTRICT COURT - reasons for judgment - desirability or requirement of the provision of formal reasons in disposing of action for damages - held: (1) Reasons for judgment should be given at the time orders are made. Palmer and Ors v Clarke and Ors (1989) 19 NSWLR 158 (CA), referred to; (2) However, having regard to the conduct of the proceedings, apparently with the concurrence of the parties, leave belatedly to raise an objection to the informal procedure adopted in the grounds of appeal should be refused. WORDS and PHRASES - "a most extreme case". Motor Accidents Act 1988, s79. ORDERS Appeal dismissed with costs. Kirby P The Court has before it an appeal from a judgment entered by MadgwickDCJ in the District Court. Judgment was entered as long ago as February 1993. The judgment concluded proceedings between Mr Andrew Cassar (the plaintiff) and Petrides Christalli and Peter Loizou (the defendants). The defendants are the appellants in this appeal. The plaintiff is the respondent. JUDGMENT IN A DAMAGES CASE AND APPEAL Madgwick DCJ did not proceed to give judgment in the orthodox way. A high measure of informality may be understandable in the conduct of interlocutory proceedings. It is less desirable in the case of a final determination of a cause involving a significant and contested claim for damages for personal injury. Indeed, there are dangers in the District Court in not proceeding to give reasons for judgment at the time that orders are made. Those dangers were referred to in Palmer and Ors v Clarke and Ors (1989) 19 NSWLR 158 (CA), 168f. Instead of 2 UNREPORTED JUDGMENTS determining the entire matter and then giving reasons for judgment and pronouncing orders, it appears from the transcript, which has been placed before the Court, that his Honour proceeded, in dialogue with counsel, to indicate, in stages, the reasoning which led him to the several conclusions which he arrived at and the components of the judgment which he derived from the successive arguments of counsel on particular points. On 18 February 1993, his Honour finally entered judgment for the plaintiff in the sum of $109,060.00. This sum was made up of non-economic loss (thirty per cent) $61,800.00, interest on non-economic loss $8,200.00, economic loss cushion $2,000.00, out-of-pocket expenses $37,060.00. Five grounds of appeal were originally raised in the notice of appeal filed in this Court. However, when the appeal commenced before us an amended notice of appeal was tendered. In essence, the final matters submitted to the Court in the appeal were: 1. An objection to the assessment made by Madgwick DCJ in respect to non-economic loss; and 2. An objection to part of the award which his Honour made for out-of-pocket expenses. This issue was, in turn, eventually reduced, as a result of further dialogue between counsel, to some $3,500.00 or thereabouts. It related to orders which his Honour made in respect to certain medical expenses which were contested. It is convenient to deal first with this second such matter in the appeal. THE PRIMARY JUDGE FALLS INTO THE ERROR OF POST HOC PROPTER HOC As I have said, his Honour provided the reasons for his judgment in a continuous dialogue form. This has presented certain difficulties both to the parties and to this Court. There is, I believe, some ground for complaint on the part of the appellants in respect of the logic of his Honour's determination regarding certain medical expenses, being for Doctors Houang, Kalowski, Chee and possibly Dr Naidu. That complaint arises out of the following exchange between counsel then appearing for the appellants, and his Honour: "Tf they are before the accident if your Honour finds... HIS HONOUR: If they are after the accident then they are related to the accident. That is the effect of my finding. COUNSEL: I do not want to say anything about that further." The essential argument, which the appellants have put before this Court, is that the foregoing exchange clearly shows that his Honour fell into the error post hoc ergo Proper hoc. The appellants seek relief in respect of the residual amount which is still in contest. In order to raise this matter, the appellants must have the leave of the Court to enlarge the original grounds of appeal to add this ground of appeal. For a number of reasons I am not inclined to give that leave which was opposed by the respondent. First, it might have been expected, if there had been a true complaint about his Honour's reasons on this point that it would have been voiced immediately after the judgment, especially having regard to the unusual form in which it was delivered. Secondly, the judgment took an atypical course. However, it appears to have taken that course with the concurrence, or at least the non-opposition, of the parties at the trial. Thirdly, the representative then appearing for the appellants indicated that he did not wish to be heard further when his Honour indicated the way in which he was thinking. Fourthly, the amount at stake has been reduced from $37,060.00 to $3,500.00. Perhaps if there had been a little more time for further discussion, it would have been reduced still further. It represents, in the sum of this case, a very small amount. In all of the URJ CHRISTALLI and ANOR v CASSAR (Kirby P) 3 circumstances, I am not inclined to the appellant should have the belated opportunity to raise that matter before this Court. I would, therefore, reject the application to enlarge the amended notice of appeal in respect of ground 6. Doing so involves in my view no relevant substantial injustice to the appellants. It avoids an injustice to the respondent. THE PRIMARY JUDGE ERRONEOUSLY DISREGARDS AGE_ IN DECIDING NON ECONOMIC LOSS That takes me back to the original grounds 1 and 2 which constitute the first complaint concerning his Honour's assessment of non-economic loss. The assessment was to be performed by his Honour in terms of the Motor Accidents Act 1988, s79. The difficulties of making assessments under that Act, and the degree of artificiality required by the assumptions of the Act, are referred to in the judgment of this Court in Southgate v Waterford (1991) 21 NSWLR 427 (CA), at 433. In that case the Court drew attention to the fact that s79(3) of the Act, by use of the indefinite article - "a most extreme case", not "THE most extreme case", simply required the decision-maker to conjure up in the legal imagination a most extreme case apt to the circumstances before the Court. The complaint of the appellants is that, when his Honour turned to deal with this matter in the course of his discursive reasons, he made, in effect an error of law. His Honour said this, at different passages: "You cannot be a less extreme case as a paraplegic just because you are 75 than if you are 15." And further on, his Honour said: "| think that 30 per cent is the degree. I reject the argument of the defendant that the percentage could in any case be lower because of this plaintiffs advancing years and because damages in a situation where they were simply to be assessed entirely on common law principles would be much higher if he was, say, 50 years younger." The appellants have drawn to the notice of the Court the decision of the Court in Reece v Reece (unreported), 28 February 1994; [1994] NSWJB 21. In that case it is plain, from the reasons of Handley JA (who gave the principal judgment), that the age of the plaintiff was accepted to be a factor to be taken into account in applying the discretion under s79 of the Motor Accidents Act. I am prepared to accept that this is a correct universal principle. In any case, it was a principle which was binding on Madgwick DCJ. It is not clear whether the principle, or something like it was drawn to his Honour's attention. Reece was, of course, decided after Madgwick DCJ's decision in the case now under consideration. Nevertheless, it is clear that, in the argument of the representatives appearing for the appellants, they stressed that his Honour ought to take into account the age of the respondent in determining the point on the spectrum by comparison with "a most extreme case" at which the respondent should be placed. With respect, it seems to me, in the way in which Madgwick DCJ expressed himself, that he fell into an error of principle. Certainly, it is an error of principle when measured against the approach which this Court later favoured in Reece. It is important to say once again, as the Court said in Reece, that primary judges must take into account the age of a plaintiff in determining the point on the spectrum of "a most extreme case" at which the particular person before the court should be allotted. Age is only one matter which is to be taken into account. But it is to be taken into account. 4 UNREPORTED JUDGMENTS Ultimately, the duty of the trial court is to consider all the facts of the case. Then, addressing the rather Delphic obligations which are imposed by the Act, the court must fix the amount, that is proportion, on all the facts of the case, including the injured party's age. The appellants urged that this Court would intervene in his Honour's primary determination, that is, that per cent was the correct assessment, disallowing the factor of age. This was put because, in another passage of his reasons, Madgwick DCJ made it plain that in certain respects, he had rejected the evidence of the respondent. He concluded that the respondent had been, in some respects, "economical with the truth". On that footing it was said this Court should discount the allowance which his Honour had made and do so by reason of his refusal to lend weight to the factor of age. The respondent was sixty-seven years of age at the time of injury, seventy-three at the time of trial. I acknowledge the force of these submissions. However, ultimately, as the Court has said on many occasions, it considers appeals not to correct the reasons of the primary judge, as such, but to review the orders made. This Court must consider whether those orders evidence error, either on the material which was placed before the trial court or the material which would otherwise be placed before this Court in our own assessment, if that were appropriate where some prima facie error has been shown. This Court must ask whether its likely assessment would differ in significant degree from that which the trial court had made. In connection with a possible re-assessment in this appeal, a motion by the respondent was placed before the Court to permit fresh evidence to be admitted. The Court did not rule on that motion. It permitted an affidavit to be read which indicated that, if the case were for re-assessment, the Court would be asked to take into account the fact that, since the primary hearing, the respondent has undergone an operation by way of insertion of a prosthesis to his femur and tibia. I do not believe that it is necessary for the Court to determine whether the additional evidence should be received. I consider that it is enough for this Court to take into account the findings which Madgwick DCJ made in relation to the injuries and disabilities which the respondent had suffered. They were: "The plaintiff was a man who had coped very well but nevertheless had a need considerably to cope with the aftermath of a laminectomy and with a condition of degenerative change in his left knee joint which from time to time would cause him acute pain and this left knee problem had extended back for at least 10 years before the subject accident here. He is overweight now, he is 73, there is no suggestion that he put on weight because of the accident and commonsense and one's ordinary experience of life suggests that in the light of the frank postoperative difficulties that he had had with his back and the frank problems that he had had 'With his left knee, that in his 70s and God willing his 80s he would be increasingly troubled by the knee and the back so his present condition ought not to be compared with a man whose future but for the accident would have been pain and troublefree. If that were the case then. I think that the proportion of 40 per cent, as suggested by counsel for the plaintiff, would be a reasonable one." Keeping the foregoing findings in mind, if I were to approach the matter taking fully into account the advanced years of the respondent as Reece requires, the result that I would arrive at in the re-assessment of the respondent's non-economic loss in the manner which is required by s79 of the Act would be URJ CHRISTALLI and ANOR v CASSAR (Cole JA) 5 at or about the thirty per cent allowed by the trial judge. If that is the case, although an error of principle or approach has been demonstrated, it is not one which affected the ultimate correctness of the final order made. That being the case, my view is the Court, although for reasons different from those advanced by Madgwick DCJ, should not disturb the judgment that was entered by his Honour. ORDERS The order which I propose is, that the appeal should be dismissed with costs. Powell JA I agree with the orders proposed by the President for the disposition of this appeal and with his Honour's reasons for so doing. I would, for myself, only wish to add that while I accept that age is a relevant factor to be taken into account by a trial judge in a case under the Motor Accidents Act when determining what is the amount to be allowed for non-economic loss, it is but one fact. The weight to be given to it is, in my view, one primarily for the trial judge. Given the nature of the judgment involved in so doing, such an assessment by a trial judge should not be interfered with unless error is demonstrated in the way in which it is required in relation to other discretionary or evaluative judgments. For my own part I that, despite the fact his Honour misdirected himself in principle, he came to the right result. Cole JA I agree with the reasons advanced by the President and with the orders proposed. KIRBY P: The Court will reserve to the respondent to the appeal the facility of making application to the Court tomorrow, differently constituted, for an order for indemnity costs. in the event that agreement is reached on that question, the orders of this Court, as pronounced, can be amended accordingly. Appeal dismissed with costs. Representation: Counsel for the appellant: MA Elkaim Solicitors for the appellant: GM Meadows Counsel for the respondent: HG Shore Solicitors for the respondent: Vizzone Ruggero and Associates