JOSIFOVSKI v CARIDA; CARIDA v JOSIFOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and COLE JJA 5 December 1995, 5 December 1995 [1995] NSWCA 225 DAMAGES — no question of principle. Cole JA The respondent, Rade Josifovski was injured in two accidents, one in 1992, and another in February 1994. He commenced separate proceedings in respect of each accident. Liability was not in dispute in either, and both actions were heard together. In respect of the June 1992 accident, the respondent was awarded $18,406.40 damages. Although the notice of appeal is entitled as an appeal against that judgment, the notice of appeal itself makes clear there is no appeal against that award of damages. In respect of the February 1994 accident, at the hearing on 13 June 1995, McLachlan DCJ awarded the respondent the following sums: 1 Past economic loss; $7,300.00 2. Non-economic loss(22%); $30,340.00 3. Out of pocket expenses: $4,490.00 4 Future economic loss: $50,000.00 TOTAL $92,130.00 The appellant challenges items 2 and 4 alleging each should be nil. The respondent had also been involved in an accident in 1981. Some of the medical evidence sought to apportion found disabilities between the three accidents. The trial judge found: "As to the 1994 accident, this is a different assessment. It is interesting that both counsel, despite a number of opinions which apportion the disability even to the point of drawing in the 1981 incident, asked me to find that the 1994 incident was the worse (sic) of the two... [T]he defendant submits that the 1994 incident was a slight whiplash, not reaching the threshold. The plaintiff seeks 20-25%. The problem is that the plaintiff by his untruths has clouded the issue. I believe that has a disability but he is fit for many forms of work He should go out and find something. As to s79, I can only do the best I can. I assess it at 22%, $30,340 and I allow the out of pocket expenses at $4,490. As to economic loss, I allow him $430 per week from 7 February 1994 to date, equals $7,300. For the future I allow him a cushion of $50,000."! The trial judge did not accept the evidence of Dr Manevski Dr Manion or Dr Deveridge.2 He referred without unfavourable comment to the evidence of Dr Ireland who had recently seen the respondent and found him to have a 10% 1. Appeal Book, at 155. 2. Appeal Book, at 152. 2 UNREPORTED JUDGMENTS impairment in the neck which Dr Ireland apportioned equally between the three incidents. He also found a 20% impairment to back function and a 10% impairment to right leg function. Dr Ireland suggested "an even apportionment between the accidents", being the 1992 and 1994 accidents, and considered the respondent not fit for heavy work." It was submitted to the trial judge on behalf of the respondent that there should be allowed a continuing economic loss for diminution in work capacity of at least $ 100 per week. That was rejected by the trial judge.3 The trial judge found that, in the past, the respondent had spent three and a half years as an apprentice tailor had done some carpentry work and some assembly jobs, thus he found he was "not a basic labourer type". In addition to the absence of unfavourable comment regarding Dr Ireland's views, the trial judge accepted that the respondent "had some continuing pain but I find that it is not nearly as bad he would have me believe.4 Further, he accepted Dr Dyball's view that the respondent had "a source of worry" rather than a psychiatric illness. The respondent had been unemployed, save for one day, form the accident on 7 February 1994 to the trial on 13 June 1995. The totality of the claim for economic loss during that period was allowed. The trial judge found that the respondent has "a disability but he is fit for many forms of work" and should go out and find some work. It is clear that, by allowing the total past economic loss claim, the trial judge accepted that with the disabilities referred to by Dr Ireland, the "source of worry" referred to by Dr Dyball, and the continuing pain which the trial judge found, the respondent was at a disadvantage in the labour market. Allowing $430 per week for 16 months to the date of trial makes that clear. Obviously the trial judge felt it would be some time before employment could be obtained, and in the future, with the established disabilities, the respondent would be at a disadvantage in the labour market. The $50,000 awarded by the trial judge, bearing in mind the appellant had 25 years of remaining work life, represented a cushion of $54 per week. Looked at another way, it constituted an allowance of 116 weeks at $430 per week. In my view it cannot be said such an award was appellably wrong. The trial judge had the competing views before him in relation to non-economic loss that the injuries and disabilities suffered were insufficient to reach the statutory threshold under s79 as advanced by the appellant, and the contention of the respondent that they were such as to justify a "20-25%" percentage of a worst case scenario. His Honour found 22% was the appropriate percentage. Having regard to the uncriticised evidence of Dr Ireland, apparently accepted, that, resulting from this accident, a pre-existing impairment from a prior accident had increased his disability to 10% in the neck, 20% in the back and 10% in the right leg, coupled with the psychological state generated by a "source of worry" at least partially attributable to this accident because it flowed from an inability to work, in my opinion it was not appellably wrong for McLachlan DCJ to find a non-economic loss of 22%. In my opinion the appeal should be dismissed with costs. 3. Appeal Book, at 154. 4. Appeal Book, at 154 URJ JOSIFOVSKI v CARIDA; CARIDA v JOSIFOVSKI (Mahoney JA) 3 Mahoney JA I agree with what has been said by Cole JA. My immediate impression was that $50,000 was distinctly in the higher range for the injuries which have been suffered. The evidence of Dr Kahn might, on one reading, suggest that his condition at the time of the report was such that it may improve and his disability disappear. But, on a proper reading, I do not think this is so and, in any event, as Cole JA has said, the evidence of Dr Ireland suggests a more permanent disability. Notwithstanding what Mr Donohoe has urged in this regard and my previous doubts, I agree that the award is not beyond the bounds of a sound discretionary judgment and I agree with the orders proposed. The orders of the Court will be as indicated by Cole JA. The view of the Court is the costs of the appeal are to be assessed in the ordinary way. Appeal dismissed with costs. COUNSEL: Appellant: P Donohoe QC Respondent: M Holmes QC SOLICITORS: Appellant: Abbott Tout Respondent: D Stanefska and Assoc