MEZAS v KELLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY; MEAGHER and HANDLEY JJA 11 October 1994, 11 October 1994 [1994] NSWCA 203 DAMAGES FACTS: Defendant appealed a finding of back injury and plaintiff cross-appealed the award of damages for future economic loss. HELD: (1) Credibility based findings are generally not appealable. (2) The finding of some chance of future employment means an award for future economic loss must be made. ORDERS: (1) Appeal dismissed with costs. (2) Cross appeal allowed. (3) Verdict below set aside and in lieu thereof judgment for the plaintiff for $256,856.00 to be entered as the date judgment of Mahoney DCJ, 18 may 1992. (4) Appellant to pay cross-appellants costs and have a certificate under Suitor's Fund Act. Meagher JA This is an appeal and a cross-appeal, the appeal by an unsuccessful defendant against a verdict in judgment given by his Honour Judge Mahoney in favour of the plaintiff who sued in respect of a motor vehicle accident suffered by him on 15 July 1978. The verdict was $246,856. Very properly counsel for the parties appealed a single issue and cross-appealed on a single issue. His Honour the trial Judge found the accident caused neck and back injuries. The defendant concedes that the neck injuries were caused by the accident but submits the Judge should not have found that the accident caused back injury. The defendant does not deny the back injuries existed at the date of trial and says they were attributable not to the 1987 accident but to an accident in December 1982 which, admittedly, did cause some injury to the back. Mr Russell, counsel for the appellant, argued with great skill the point very forcefully that from the date of the accident to 1992 there was no suggestion of any lower back complaint to any of the doctors that the plaintiff consulted, although he said, if such pain existed, one might have expected the plaintiff to have mentioned it. On the other hand, in the witness box both the plaintiff and his wife gave evidence, which his Honour obviously believed, that the accident in 1978 did cause considerable back pain in the lower back. Moreover it has not been demonstrated that the plaintiff in his interviews with the doctors ever denied the existence of such a back pain, as distinct from not mentioning it. Bearing in mind restrictions which are imposed on us as an intermediate Court of Appeal in tampering with credibility-based findings, this inevitably means that the present appeal must, in my view, be dismissed with costs. 2 UNREPORTED JUDGMENTS As for the cross-appeal this arose out of the fact that his Honour did not award any damages by way of future economic loss. That was because at the time of trial the plaintiff was already aged, he had been suffering eye trouble and economic conditions were grim. Without wishing to enter into any of the details of these facts it seems to me clear enough, on any view, even the view most adverse to the plaintiff, since his Honour also found he was highly motivated there was some chance, perhaps a good chance, that he would do some work in the future if he had not been injured. Therefore some sum by way of economic future loss should be awarded. I would propose there should be a verdict in favour of the plaintiff to be altered in this respect by the addition of a further $10,000. It is impossible, in my view, to be more precise. The orders, therefore, which I propose are these: (1) appeal be dismissed with costs; (2) cross-appeal be allowed; (3) verdict found by his Honour of $246,856 be set aside and in lieu thereof there be awarded a verdict of $256,856, the appellant to pay the cross-appellant's costs of the appeal but to have a certificate under the Suitors Fund Act. Priestley JA I agree. I would add only in regard to the cross-appeal that thecomparatively small sum which the Court thinks is appropriate in regard to the future economic loss is a sum that is based on the findings of fact made by his Honour. From those findings he came to the conclusion that the cross-appellant's future earning ability had been completely blotted out. In my opinion that was going too far. On the facts found by his Honour it would follow that the cross-appellant's future earning ability had been greatly diminished and on the available materials, using them in the light of his Honour's primary findings of fact which this Court is not in a position to displace I do not see how anything significantly larger than the sum mentioned by Meagher JA could be awarded. Handley JA I also agree. For myself I merely add that the appellant's displacing his Honour's credibility-based findings that the back injury was attributable to the motor vehicle accident are compounded by the material contained in the report and notes of Dr PapAllo, the chiropractor and osteopath, who records complaints of low back pain by the plaintiff in April 1979. His Honour's findings are also supported by the certificate of Dr Jones of September 1983, in which she refers to the plaintiffs "old disc abnormality", and the report of Dr Kendall of 5 July 1983 in which he expressed the opinion that the motor vehicle accident had damaged the disc at L5/S1 in the plaintiff's back and that this was an old, rather than a recent, condition more probably than not due to trauma rather than due to degenerative changes. When this evidence is added to the matters referred to by my brother Meagher it seems to me that the appellant's challenge to the trial Judge must fail. Subject to these comments, I agree with the other judgments. PRIESTLEY JA: The orders of the Court will, therefore, be as proposed by Mr Justice Meagher with the addition that the judgment to be entered pursuant to this Court's orders will take effect from the same date as that pronounced by his Honour Judge Mahoney. (1) Appeal dismissed with costs. (2) Cross appeal allowed. (3) Verdict below set aside and in lieu thereof judgment of the plaintiff for $256,856.00 to be entered as the date judgment of Mahoney DCJ, 18 May 1992. URJ MEZAS v KELLY (Handley JA) 3 (4) Appellant to pay cross-appellants costs and have a certificate under Suitor's Fund Act. Representation: 5 Counsel for the appellant: DJ Russell Solicitors for the appellant: GM Meadows Counsel for the respondent: MR Aldridge 10 Solicitors for the respondent: Cooley and Cooley203040