MAKIS v MIJATOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER JJA and GILES AJA 5 July 1995, 5 July 1995 [1995] NSWCA 266 DAMAGES — APPEAL FROM DAMAGES AWARD UNDER MOTOR ACCIDENTS ACT — ALL COMPONENTS CHALLENGED — APPORTIONMENT BETWEEN EFFECTS OF TWO MOTOR VEHICLE ACCIDENTS AND ASSAULTS CHALLENGED EXERCISE OF TRIAL JUDGE'S DISCRETION TO ADMIT DOCTOR'S REPORT IN THE DOCTOR'S ABSENCE — HOUSE vy THE KING ((1936) 55 CLR 499) CONSIDERED — NO ERROR SHOWN. Clarke JA This is an appeal from a judgment of Judge Garling given on 15th March 1995 concerning two claims made by the respondent. In the first claim the respondent sought damages for injuries, and the consequences of those injuries, which he received in a motor vehicle accident on 26 January 1985. In the second claim he sought damages in respect of the injuries and consequences of another motor vehicle accident suffered on 19 January 1990. Both claims were heard together. The assessment of damages was highly complex because there was a blending of the consequences from the first accident in those of the second accident. I may not have expressed that very clearly. What I am seeking to convey is that in the first accident his injuries were to the back, neck and left shoulder and, as well, he suffered from some psychological depression. In the second accident he suffered an aggravation to the original back injury and neck injury and sustained a further injury to his right shoulder. He also suffered depression as a consequence of the second accident. The difficulty that the judge faced was endeavouring to determine what were the consequences of each of the accidents and that task was further complicated by the fact that the respondent had been assaulted on two occasions whilst working as a taxi driver. The first assault occurred between the two motor vehicle accidents and that was on 22 May 1989 and the second and more serious one occurred on 26 October 1992. There were even greater complexities introduced because the damages to be awarded in respect of the later motor vehicle accident were governed by the provisions of the Motor Accidents Act, whereas the earlier set of damages were not. The evidence that was led came from the respondent and his wife, both of whom his Honour thought were good witnesses. That evidence was supplemented by the written reports of a number of doctors, who dealt, in broad terms, with the consequences of each of the accidents, both from the physical and psychiatric point of view. His Honour considered that the most appropriate way of dealing with the problem created by the fact that the two accidents involved injuries to the same area of the body and, as well, psychological injury, was by apportioning between the two accidents and the assaults the total responsibility for the condition in 2 UNREPORTED JUDGMENTS which the respondent was at the time of the trial. His Honour regarded the assaults as being responsible for 25% of the respondent's problem at that time and thought that, of the balance, the first accident caused 70% of his problems and the second 30%, that is, 70% and 30% of the residual 75% after the effects of the assault had been taken into account. His Honour awarded the respondent damages against the first tort feaser in the sum of $150,601 and damages as against the second tort feaser in the sum of $63,240. There has been no appeal from the first mentioned award but the second tort feaser has appealed against the award of $63,240 which was made up as follows: award for non economic loss in accordance with the Motor Accidents Act $14,800; past economic loss $22,736; impairment of future earning capacity $13,200; out-of-pocket expenses $12,504. Each of those components has been the subject of submissions on the appeal. However, the award for non economic loss, a part of the award for past economic loss, amounted to $3,930 and the award for impairment of future earning capacity of $1 3,200 have all been challenged upon the same basis and it is convenient to deal with them together. Each of those awards resulted from his Honour carrying out the apportionment exercise to which I have earlier referred and the appellant, while not disputing his Honour's entitlement to carry out his difficult task by effecting an apportionment, has submitted that, in so doing, his Honour got it wrong. In his submission the evidence neither justified an apportionment against his client as high as 30%, nor established the impairment of which the Motor Accidents Act speaks, which entitled the respondent to damages for non economic loss. In his submission the effects of the second accident had subsided within a relatively short time after that accident and had completely disappeared by the time of the trial. For this reason the Motor Accidents Act requirement could not be satisfied and his Honour was wrong to award any sum of non economic loss. In addition if, in fact, it was appropriate to apportion responsibility the amount which should have been apportioned against his client should have been less than 30%. The basis upon which these submissions were made was that the undisputed evidence of the respondent and his wife was to the effect that the consequences of the second motor vehicle accident had been well and truly spent within a short period and his Honour erroneously disregarded that evidence in coming to his assessment. It will, in these circumstances, be necessary to turn to the evidence upon which counsel founds the submission but before doing so I think it appropriate to say, firstly, that his Honour found that there were both physical and psychological consequences of the accidents at the date of the trial. The latter, that is, the psychological consequences were, in the view of doctors whose evidence his Honour accepted - and I think in his Honour's view also - probably more significant than the physical injuries. For this reason and because there is medical support to be found for his Honour's view it is necessary to exercise caution in uncritically accepting the evidence of the respondent and his wife. The relevant material was in short compass and was, I think, to the following effect. Prior to the second accident, the respondent had settled down to a significant degree following the earlier incident. He had returned to part time work and had made measurable improvement. After the second accident he was much worse, but, over a period of time and with fluctuations, he settled down to a degree. URJ MAKIS v MIJATOVIC (Clarke JA) 3 Counsel for the appellant would have the court accept that he settled down after the second accident to the extent that he was in no worse shape than he had been before the second accident. In other words, that the aggravation effected by the second accident was a temporary one, and he relied on the respondent's wife's evidence to the effect that his mood after the second accident came back to the way it was before the second accident. He relied also on the fact that after the traction he underwent following the second accident he felt better again and counsel relied most particularly on evidence adduced in cross- examination to the following effect: "Q. After the car accident in January 1990, you told us that your husband went to hospital and had some traction? A. Yes. Q. And that he felt better? A. Yes. Q. That is what he told you or that is what you observed? A. He told me and I observed it also. Q. And completely better or back to the state that he was before the car accident, the 1990 car accident? A. Yeah, about that, before then. Q. He went back to the state he was before the car accident? A. Yes. Q. Is that right? A. Yes. Q. Are you quite certain about that? A. I think so." Counsel also referred to the evidence of the respondent himself when he said after the second accident his back and neck felt worse but after that it was similar 'like first'. I may be mistaken but I do not think that counsel referred to or relied upon any evidence given by the respondent relating to a settling down of the psychological problem which he suffered as a result of both accidents. It is, however, appropriate to refer also to a passage in the evidence in chief given by the respondent's wife which read: "Q. What happened in the periods after the second accident to his personality and moods as you observed them? A. He seemed to settle down for while and then he started again getting very angry when he couldn't go back to work and he sort of just felt he had a bad blow, it was - he had bad luck and he was depressed, angry, he couldn't sleep, he was nervous and he didn't trust anyone. He sort of didn't want to see any friends, we - he lost practically all his friends. Q. At their most extreme peaks where he was in the bad moods and angry, how did that compare to the most extreme problems in that area prior to the second accident? A. He was better before the second accident too, it all started in about 1986, a year after the first accident. Q. I appreciate that, but how did the worst examples after the second accident compare to the worst examples prior to the second accident? A. About the same." In considering the thrust of that evidence I think it important to refer to the opinion of Dr Wilson, which was accepted by his Honour, that in 1994 the respondent's ongoing physical and psychological problems were a direct result of the two motor vehicle accidents and the assault. In the doctor's opinion these 4 UNREPORTED JUDGMENTS three incidents had a cumulative effect which led on to his current circumstances. In that context I would understand the thrust of the evidence of the respondent's wife to be as follows. The respondent suffered from significant and serious psychological and physical consequence as a result of his first accident. Over a period of time he settled down and he significantly improved to the stage where he could get back to work. He then suffered the first assault, which appears to have been of little or no moment. Shortly after that he suffered from the second car accident and there was a definite and marked flare up of his condition and disabilities. Like the first occasion these settled down to a degree but, at the end of the day, he was still depressed, angry and suffering from a nervous condition. The doctors, in particular Dr Wilson, treated that condition as the result of the cumulative effect of the three incidents, that is, the two motor vehicle accidents and the assault, and it seems to me that his Honour accepted that approach. Certainly he accepted Dr Wilson's opinion which articulated that approach. In my opinion his Honour was correct in the assessment of the evidence of the respondent and his wife and of the evidence of Dr Wilson. True it is the respondent did settle down after the second accident and the respondent's wife gave evidence which superficially supported the submission that the effects of the second accident had been spent, but psychological injury in particular involves complex problems and the impression of a lay witness to the effect of differing incidents upon those problems is a matter which must be treated with caution in the light of the expert evidence given in the case. I, for my part, do not really think that the respondent's wife was saying at any stage that he had completely recovered from the effects of the second accident. Indeed she was never asked that question. What she was asked were questions directed to showing he had settled down to a state similar to the state he was in prior to the second accident. She agreed, in general terms, with the proposition but I do not read her evidence as denying the validity of the opinion of, in particular, Dr Wilson. For these reasons I do not accept there is any substance in the submissions advanced by the appellant, and I would reject them. I should add that there is, to my mind, a problem in entertaining? those submissions. What counsel has asked the court to do is to reduce the apportionment ordered against the appellant which reduction would impact either against the respondent if the court were persuaded that his Honour had over-assessed the extent of the problems relating from the accidents in general, or against the first tort feaser if the court was of opinion that the apportionment should have been, for instance, 90/10. This court could not take the second course without hearing argument from counsel for the legal representative of the first tort feaser and it would seem to me that, in the absence of that party, this court would not be able to adopt that second course. I should add that this difficulty was pointed out to counsel for the appellant who determined, for his own reasons, to proceed with the appeal in the absence of the other tort feaser. The ground of appeal relating to the amount of $18,806, representing compensation for past loss of earnings and $12,504 relating to out-of-pocket expenses, can, I think be dealt with together. What his Honour said, in each of those case, was that the evidence showed that the respondent had been off work at the relevant times and had received treatment which was shown in the accounts which together gave rise to the total figure to be allowed for the out-of- pocket expenses. In considering what amount should be allowed for the loss of wages during the relevant period and the out-of-pocket expenses his Honour took account of the fact that the workers compensation insurer had paid the two URJ MAKIS v MIJATOVIC (Clarke JA) 5 amounts I earlier mentioned as properly flowing from the respondent's disability. Because of that his Honour thought it was, in the circumstances, proper to allow for those sums as compensation to the respondent. As I would understand what his Honour was saying, it was clear that there had been a loss of wages and that he had to determine the extent of that loss of wages. Having regard to the amount paid by the workers compensation insurer he thought the appropriate and fair figure to allow was that which had been paid as compensation. Similarly, while he was concerned at the extent of the treatment which the respondent had undergone he thought that it was reasonable to allow the respondent the costs of the treatment which had been effected by, or at the suit of, Dr Bannister as well as the other out-of-pocket expenses which had been paid by the workers compensation insurer. In so doing he said that the respondent had done what he had been advised to do and there was no suggestion in the evidence that he should not have followed the medical practitioner's advices. In the circumstances his Honour thought it was reasonable to allow the amounts incurred as part of the damages in the claim against the second tort feaser. I see nothing wrong with his Honour's approach. It may be that he could have phrased the judgment slightly differently, but, in the end, he was required to allow what was reasonable as between the parties in the circumstances and I do not think that it was wrong for him to take account of the fact that the workers compensation insurers had satisfied themselves that the amounts in question were reasonable and properly payable in coming to his own view as to what was reasonable in this case. Accordingly, I would reject this ground of appeal. The last grounds relate to a decision by his Honour to admit the reports of Dr. Bannister over the objection of the appellant, and the allied alleged error of placing any weight on the reports of Dr. Bannister, particularly insofar as they supported claims for loss of wages and out-of-pocket expenses. It is undoubtedly true that his Honour exercised a discretion in permitting the report to be received in evidence without requiring Dr Bannister to attend for cross-examination. In those circumstances this court could only set aside his Honour's decision on the very restricted grounds, which are expressed in such cases as House v The King (1936) 55 CLR 499. Counsel for the appellant submitted that his Honour erred in the exercise of his discretion in that he failed to pay due regard to the overwhelming prejudice to the appellant in admitting the evidence and accorded too much weight to the prejudice which would be suffered by the respondent if the evidence had been rejected. This at least is what the written submissions for counsel for the appellant said. Howsoever when one turns to the argument before his Honour, it appears quite clear counsel at that stage was saying that the prejudice was equal between the parties. It follows that his Honour was required to exercise a discretion where, according to the appellant's counsel, prejudices were equal, and nothing has been shown which demonstrates that his Honour was in error in any respect in making the decision which he made. It perhaps is to the point also to mention that, insofar as the question of incapacity was concerned, his Honour seems to have accepted the evidence of other doctors rather than that of Dr Bannister. It is said that it was wrong of his Honour to place weight on the evidence of Dr Bannister in determining that the costs incurred and charged to the appellant were reasonable. I am not prepared to accept that submission. The question was very much one for his Honour in all the circumstances and one factor, to which no reference was made in the argument but which would bear on the question of reasonableness, is that there was not one 6 UNREPORTED JUDGMENTS tittle of evidence from the appellant to suggest that the expenses were unreasonable. All that the appellant sought to do at the trial was to submit that, in the light of the improved condition of the respondent, the treatment costs were clearly not reasonable and the claim for economic loss not sustainable. In my opinion these grounds should also be rejected. In the end the appeal should be dismissed with costs. Meagher JA I agree. Giles AJA I also agree. Clarke JA: The orders of the court will be, appeal dismissed with costs. COUNSEL: Appellant: H MARSHALL Respondent: P LITTLE SOLICITORS: Appellant: HENRY DAVIS YORK Respondent: DJ HODGESS AND ASSOCIATES