EMINE ATILA v EVANA LOURIC SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, GILES AJA and Simos AJA 18 November 1996 [1996] NSWCA 25 DAMAGES — motor vehicle accident — economic and non-economic loss — adequacy of award. In November 1992 the plaintiff was involved in a motor vehicle accident. At trial, damages under the Motor Accidents Act 1988 were assessed at $16,100 comprising $100 for out-of-pocket expenses, $6,000 for past economic loss and $10,000 for future economic loss. The appellant submitted that the trial Judge erred in not awarding any amount for non-economic loss. HELD, dismissing the appeal: (1) The substantial common ground in the plaintiff's and defendant's medical evidence supported the trial Judge's conclusions; (2) There was no error entitling the Court to intervene. Handley JA. This is an appeal by a plaintiff from a decision of her Honour Justice Sidis who assessed the plaintiff's damages arising from a motor vehicle accident which occurred on 27 November 1992. The damages fell to be assessed pursuant to the Motor Accidents Act 1988. Her Honour found a verdict for the plaintiff for $16,100, comprising $100 for out-of-pocket expenses, and $16,000 for economic loss, $6,000 for the past and $10,000 for the future. Mr Lidden, for the appellant, has submitted that her Honour erred in not awarding any amount for non-economic loss, and that her awards for past and future economic loss were inadequate. The plaintiff claimed that she had the following injuries and disabilities: a fracture of a bone in the right foot which she claimed still affected her capacity to stand for long periods of time; a muscular ligamentous strain to her lumbo sacral spine, which caused her various difficulties and bruising, particularly on the left thigh which the plaintiff claimed was discoloured and numb with reduced feeling in this area. Following the accident, the plaintiff attended the Emergency Department of Liverpool Hospital. Her only complaint at that stage was of the injury to her right ankle. She acknowledged in her evidence-in-chief that this was no longer a problem for her. She consulted Dr Lau, a GP, the day after the accident. His examination revealed abrasion and tenderness of the right ankle, mild stiffness of the neck, and some upper chest tenderness. His medical report in evidence, tendered on behalf of the defendant, although originally provided to the solicitors for the plaintiff, records that at a second visit from the plaintiff on 31 March 1993, 'She had recovered from her accident with no residual disabilities'. Another medical report in evidence, tendered by the defendant but provided originally to the plaintiff or another doctor representing the plaintiff, was from Dr Marshall. He seems to have been consulted in connection with the plaintiff's 2 UNREPORTED JUDGMENTS attempt to obtain a transfer of her housing commission accommodation. He reported on 8 December 1992 that the plaintiff had survived the motor accident 'without much injury'. It is clear that the plaintiff's ankle injury, on its own, would not support an award of damages for non-economic loss. There was no recorded report of complaints of back pain by the plaintiff until she saw Dr Tadros on 10 December 1992. The doctor considered that her back pain was musculo ligamentous. He also noted complaints of back pain at a later visit on 26 February 1993. Dr Tadros had been looking after the plaintiff since June 1987 as her family doctor. In his report of 24 June 1994 he noted that he had not seen the plaintiff in relation to these problems since February 1993. No further report from Dr Tadros was tendered at the trial. ACT scan of the plaintiff's back, taken in November 1994, showed bulging of the L3/L4/LS discs. Drs Ness, Erol and Rivett qualified for the plaintiff, described this condition as minor, very little, or slight, respectively. Dr Bornstein, who qualified for the defendant, also described the condition as minor, 'Not sufficient to cause symptoms and not related to the motor vehicle accident'. Dr Sekel, who also qualified for the defendant, said that the condition of the plaintiffs spine in this area was 'within normal limits ... does not compress any neural contents, and is therefore of no clinical relevance. This finding is found in many normal people'. The remaining condition relied upon by the plaintiff related to the bruising and numbness in her left thigh. The first complaint of this condition was made on 21 October 1993 to Dr Erol, nearly twelve months after the accident. In view of the contemporary complaints to Liverpool Hospital, and to Dr Lau, there is really insufficient to connect this condition, whatever it was, with the original motor vehicle accident, bearing in mind its relatively late appearance in the medical histories taken from the plaintiff. Mr Lidden submitted that there had been no credit issue at the trial, and in those circumstances the Judge ought to have accepted the plaintiff's complaints at face value, and made an appropriate award for non-economic loss. In view of the substantial degree of common ground in the medical evidence, and the fact that the plaintiff had earlier sustained an injury at work which had affected her for many years, particularly her neck, it seems to me that the Judge's refusal to award damages for non-economic loss was entirely appropriate. I am unable to discern any error in her approach which would entitle this Court to intervene. In those circumstances I would propose that the appeal should be dismissed with costs. Giles AJA. I agree. Simos AJA. I also agree. Orders accordingly. Counsel for the appellant: A J Lidden Solicitors for the appellant: L J Sharpe and Co Counsel for the respondent: J D Hislop QC URJ EMINE ATILA v EVANA LOURIC (Simos AJA) Solicitors for the respondent: Bruce and Stewart