SEDDIQ vy COMMONWEALTH SCIENTIFIC and INDUSTRIAL RESEARCH ORGANISATION; SEDDIQ v TOWERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER JJA and GILES AJA 5 July 1995, 21 September 1995: [1995] NSWCA 421 NEGLIGENCE, QUANTUM, ECONOMIC LOSS, ADMISSION OF FRESH EVIDENCE RESERVED. FACTS In each action the appellant seeks review of findings against an award of economic loss and quantum; as against CSIRO of an amount of $13,045.05 and Towers an amount of $500. The action against CSIRO concerned an event which took place when she was employed by that body. It was her duty to turn on the switch of some computer equipment, but because of the height she had to stand on a milk box in order to reach the switch. Whilst performing this task on 8 February 1985 the box collapsed and she fell and injured her side and head. The action against Towers was a case of negligence which arose out of Towers driving his motor lorry into the back of her motor car. At an early stage it became clear that Mrs Seddiq had made out a case of negligence against each defendant; and both matters proceeded as contests over the quantum of damages payable to her. HELD (By Meagher JA, Clarke JA and Giles AJA agreeing) In the action against CSIRO, the appellant chose not to bring a claim for economic loss, which decision cannot be interfered with. In the action against Towers, the trial judge's finding that the plaintiff/appellant was unemployed and unemployable precluded an award of economic loss. (By Meagher JA, Clarke JA and Giles AJA agreeing) The interpretation of "incompetence" for the purposes of Pt45 R2 of the District Court Rules is discretionary and may not include personality disorders nor psychological disturbances. (By Meagher JA, Clarke JA and Giles AJA agreeing) The findings of the trial judge against the plaintiff/appellant on credibility were based on evidence and cannot be overruled. (By Meagher JA, Clarke JA and Giles AJA agreeing) The finding of the trial judge against the plaintiff/appellant that neither accident aggravated her mental disorder was based on evidence and is not appealable. (By Meagher JA, Clarke JA and Giles AJA agreeing) The failure of the trial judge to award the plaintiff/appellant interest is discretionary and justified given the failure of the plaintiff/appellant to claim interest and the plaintiff/appellant's delay in pursuing her litigation. (By Meagher JA, Clarke JA and Giles AJA agreeing) The application of the appellant to admit fresh evidence fails because the evidence is not "fresh". (By Giles AJA) In the claim against Towers, his Honour's award of costs against the plaintiff/appellant is correct. ORDERS 1. Appeals dismissed with costs. 2 UNREPORTED JUDGMENTS Clarke JA I agree with Meagher JA and I would only wish to add the observation that the additional material on which the appellant sought to rely did not establish that the appellant ever served particulars on the CSIRO in which she claimed economic loss. Meagher JA These are two appeals by a Mrs Seddiq against verdicts which she obtained against each of the respondents. The actions concerned quite different events. The trial took place before Twigg DCJ. The actions were heard together by consent. In each case Mrs Seddiq represented herself, having sacked her legal representatives. In the action against Commonwealth Scientific and Industrial Research Organisation ("CSIRO") she obtained a verdict of $13,045.05 and in the action against Towers she obtained a verdict of $500; she has appealed against the adequacy of both verdicts. The action against CSIRO concerned an event which took place when she was employed by that body. It was her duty to turn on the switch of some computer equipment, but because of the height she had to stand on a milk box in order to reach the switch. Whilst performing this task on 8 February 1985 the box collapsed and she fell and injured her side and head. The action against Towers was a case of negligence which arose out of Towers driving his motor lorry into the back of her motor car. At an early stage it became clear that Mrs Seddiq had made out a case of negligence against each defendant; and both matters proceeded as contests over the quantum of damages payable to her. Two comments seem to me apposite on his Honour's conduct of the case. The first is that his Honour extended every courtesy and latitude to Mrs Seddiq. If it be the fact that she conducted her case badly, she has only herself to blame; although I am unconvinced that she could have done much better had she been legally represented. The second is that the judge took a very jaundiced view of her credibility; and not without reason, as the transcript demonstrates. On appeal, the grounds of appeal which were most agitated were general damages and economic loss. In the action against CSIRO she was awarded general damages of $12,000; and in my view this was an amount his Honour was entitled to award. His Honour said "The plaintiff did suffer back strain on that day which cleared up in a matter of weeks." On one view of the mountains of medical reports and barely comprehensible evidence of Mrs Seddiq, this conclusion was inevitable. In the second action, the action against Towers, his Honour concluded that, whilst some pain and suffering must have been involved, there could be no amount awarded for non-economic loss because of the provisions of s79(1) of the Motor Accidents Act 1988 which forbids the award of damages for non-economic loss unless the injured person's ability to lead a normal life is significantly impaired by the injuries suffered. His Honour's assessment that there was no such significant impairment, again, could hardly be challenged. The major debate before this court concerned economic loss. His Honour made no award of damages for economic loss against either defendant: against CSIRO, because it was never claimed; against Towers because, although claimed, it was not proved. As far as the former is concerned, the facts were the statement of claim (which was filed when she was legally represented) made no claim for economic loss and she did not file nor serve any particulars under Pt12 R4A; in the Towers matter she did claim economic loss in her Pt12 R4A particulars, but that is a different thing; his Honour never made an order (and it is difficult to see how such an order could ever be justified) that the particulars in the Towers matter be treated as particulars in the CSIRO matter. She voluntarily undertook to make out a particular case against CSIRO, and that \WHEDDIQ. v COMMONWEALTH SCIENTIFIC and INDUSTRIAL RESEARCS ORGANISATION; SEDDIQ v TOWERS (Giles AJA) case did not have economic loss as an ingredient. Neither his Honour nor this court has any business trying to make out a different case for her. As far as the Towers case was concerned, his Honour concluded that she was at the time of the accident both unemployed and unemployable. In these circumstances, his Honour's melancholy finding of no economic loss was irresistible. The second matter of appeal is rather novel, namely that his Honour should not have permitted the appellant to conduct her case in person, because she was either an incompetent person or a disabled person. Pt45 R2 of the District Court Rules relevantly provides that "... a disabled person may not, except by his next friend bring or make a claim or carry on any proceedings for relief in this Court." This ground of complaint must be rejected. Many cases involve findings by a judge that a plaintiff suffers from a personality disorder or is psychologically disturbed, but that does not involve "incompetence" sufficient to invoke Pt45 R2. There is no reason for his Honour to be criticized for not acting under that Rule to ensure that a tutor or next friend be appointed. The appellant's third ground of appeal is really a challenge to his Honour's findings on credibility. Those findings certainly were not favourable to the appellant. Thus his Honour said "she certainly exaggerated to an enormous extent both to this Court and to the doctors that she saw over many years"; and, at another point, he says "I found her a most unsatisfactory witness, a witness who never keeps to the point, refers continuously to irrelevant matters and was unable to agree to propositions put to her which were clearly self evident." That his Honour's remarks were justified can be demonstrated by reading the transcript and the medical reports. In these circumstances it is a hopeless task to overrule a trial judge's findings on credibility. Indeed, on analysis, the ground degenerated into a complaint that one of his Honour's instances of her untruthful evidence was unfortunately chosen. That is not enough. The appellant's fourth ground of appeal was that his Honour erred in failing to hold that either the first accident or the second accident caused or aggravated the plaintiff's mental problems. But Dr Shand's evidence, which his Honour clearly accepted, was that her mental disorder was due in part to her migration to Australia and in part to her husband's death, and that, at least by inference, neither accident had aggravated it. The appellant's fifth ground of appeal was that his Honour failed to award interest. The appellant did not ask for it at the trial. It is, in any event, a discretionary remedy, and the appellant's delay in pursuing her litigation would have justified her being deprived of any right to interest. The appellant's final ground of appeal related to the costs of the Towers matter. In view of the provisions of the District Court Rules that verdicts below $15,000 do not carry costs, I cannot see that the question merits discussion. After the appeal was concluded, this Court heard an application by the appellant to admit fresh evidence. The Court rejected that application as it had to, if for no other reason than that the evidence could hardly be called "fresh". The appeals should both be dismissed with costs. Giles AJA The plaintiff's claims and the verdicts she obtained appear from the reasons of Meagher JA. The appellant asserted six so-called "errors of principle" by the trial judge. The first error of principle was that the trial judge said that there were no claims for economic loss and accordingly gave no awards for economic loss. It had two parts. In relation to the claim against CSIRO, his Honour did say that there was no claim for economic loss. He was quite correct. The particulars in the 4 UNREPORTED JUDGMENTS claim against Towers can not be transmogrified into particulars in the claim against CSIRO, that CSIRO tendered a record of workers compensation payments made to the plaintiff did not bring into the proceedings a claim by her for economic loss, and it is evident from the transcript of the hearing that (for whatever reason) the proceedings were not conducted on the basis that there was such a claim. The plaintiffs application that fresh evidence be received on the appeal, being evidence of an incomplete document relating to particulars received by CSIRO's solicitors otherwise than from the plaintiff or her solicitors at the time, should be refused, first because the evidence is not fresh evidence, and secondly because it would not alter the position. In relation to the claim against Towers, what his Honour said was, "There is no economic loss claimed and I find there is none". The particulars in the claim against Towers did include economic loss, but the first part of this statement may have been because nothing was said of the claim in the hearing. Whether or not that is so, as is demonstrated by the second part of the statement his Honour considered whether any economic loss had been suffered and found that it had not. Earlier in his reasons he said that the plaintiff "clearly has no entitlement to economic loss", because she was not in employment at the date of the accident and was still suffering from the psychiatric and other symptoms to which he had previously referred. As is summarised by Meagher JA, at the time of the accident the plaintiff was both unemployed and unemployable, and the finding that there was no economic loss can not be disturbed. The second error of principle was that the trial judge had failed to inquire into whether the plaintiff was an incompetent person or a disabled person. For the reasons given by Meagher JA, it was not incumbent on his Honour to do so. The third error of principle was that the trial judge 'failed to accommodate in any way the plaintiff's psychological problems in determining credit and therefore fell into error". The judge took an adverse view of the plaintiff's credit, for reasons he gave and which are borne out, and supplemented, on a reading of the transcript. It is plain beyond doubt that he was conscious of the evidence concerning the plaintiffs condition. There is no reason at all to think that his Honour fell into error as suggested. As Meagher JA observes, this error of principle came down to a complaint in relation to one instance of the plaintiff's untruthfulness. The judge said that the plaintiff told Dr Gillies she was sent to Westmead Hospital and then treated in a private hospital for two weeks in traction, and that that was a false statement because "There is no evidence before me that in any way she was treated in a private hospital and particularly for traction". There was evidence which on one view could have supported treatment in a private hospital in 1988, possibly with traction, but on a natural (if not necessary) reading of Dr Gillies' report what he was told related to a period immediately after the incident at work in 1985. His Honour could have expressed himself a little more clearly, but I do not think that there was any error in this particular respect, and even if there had been I do not think it would detract from the otherwise manifest correctness of his Honour's view of the plaintiff's credit. The fourth error of principle was that the trial judge failed to consider whether the incident at work or the accident were the cause of or aggravating factors in the plaintiff's psychological condition. His Honour clearly accepted Dr Shand's opinion to the effect that the plaintiffs personality disorder was long-standing and unconnected with the incident or the accident, and clearly enough so found. No reason has been shown to interfere with that finding. \HEDDIQ. v COMMONWEALTH SCIENTIFIC and INDUSTRIAL RESEARCK ORGANISATION; SEDDIQ v TOWERS (Giles AJA) The fifth error of principle was that there was no award of interest on general damages. The trial judge was not asked to award interest, the amounts involved were small, and the plaintiff had delayed in bringing the proceedings. I do not think that there was an appealable error if his Honour failed to award the interest of his own motion. The sixth error of principle was that the trial judge failed to make an order as to the costs of the claim against Towers. That claim had gone to arbitration. His Honour was informed that the plaintiff had not improved her position, but that Towers did not seek an order for costs. Counsel for Towers said that he "would ask your Honour to make an order that the plaintiff have no costs but I think that would follow from the Rules anyway given the sum". His Honour observed that he thought he must make a specific order, but was interrupted by the plaintiff when, in the course of dealing with costs, he had gone as far as saying that the plaintiff was not entitled to the costs of the arbitration. It is plain beyond doubt that the plaintiff was not entitled to costs and that his Honour would not have ordered costs in her favour. None of the errors of principle existed. The appeals should be dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: RI GOODRIDGE Respondent Towers: RC TONNER Respondent CSIRO: D ELLIOTT SOLICITORS: Appellant: FIRTHS Respondents: GM MEADOWS