HAYES v PETROV SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and COLE JJA 1 July 1996, 1 July 1996 [1996] NSWCA 244 MOTOR VEHICLE ACCIDENTS — damages — non-economic loss — impairment of ability to lead normal life — Motor Accidents Act 1988 s79(1) — plaintiff's ability to lead a normal life already impaired. The plaintiff was involved in a motor vehicle accident on 15 November 1990. Negligence was not in dispute. The plaintiff had been involved in a motor vehicle accident in 1984 for which he recovered damages in 1989. The judge found that the plaintiff repeated many of his complaints from the earlier litigation and was not a witness of truth. The judge held that the 1990 accident aggravated his pre-accident condition and apart from out-of- pocket expenses of $4,027 awarded $21,460 based on 18% impairment for non-economic loss under s79 of the Motor Accidents Act. HELD, allowing the appeal: (1) Accepting the medical evidence at its highest for the plaintiff, it did not provide any firm basis for an assessment of the degree to which the plaintiff's condition had been aggravated by the second accident; (2) Having regard to the adverse finding on the plaintiff's credit, there was no basis on the civil onus for a finding that the plaintiff's pre-accident diminished ability to lead a normal life had been significantly impaired by the second accident. Handley JA This is an appeal by the defendant from the assessment of the plaintiff's damages by McLachlan DCJ. The action arose out of a motor vehicle accident which occurred on 15 November 1990. Negligence was not in dispute and in the result his Honour assessed the plaintiffs damages at $25,667 comprising an assessment under s79 of the Motor Accidents Act for non-economic loss of $21,460 based on 18 percent impairment and out-of-pocket expenses allowed at some $4,207. The appeal has been limited to the award or non-economic loss. The difficulty in the case arises from the fact that the plaintiff had been involved in a motor vehicle accident in 1984 which led to proceedings in the District Court before Craigie ADCJ, heard in 1989. The judge found that the plaintiff repeated many of his complaints which had been litigated before Craigie DCJ and attributed them to the 1990 accident. The judge's primary findings were not challenged. He made a number of findings adverse to the plaintiff. Having said that the plaintiff was not a witness of truth he continued: "T do not accept for one moment that he was symptom free or about symptom free before the 1990 incident. I also do not accept that symptoms he has are mainly related to the 1990 incident. I do not have any doubt at all that he is trying to extract money from the system by throwing onto the 1990 conditions which are attributable to the earlier accident". However, his Honour did find that the 1990 incident aggravated the plaintiff's pre-accident condition and probably contributed to what Dr Maloney had described as "abnormal illness behaviour the result of chronic pain syndrome". 2 UNREPORTED JUDGMENTS The issue in the appeal concerns the effect of these findings on his Honour's award based on 18 percent impairment under s79(1) of the Motor Accidents Act in its original form. This provided: "No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life is significantly impaired by the injury suffered in the accident". In the present case the plaintiff's pre-accident condition for the purposes of the 1990 accident was that of an already injured person. In a case such as this the question under s79(1) is whether the plaintiff's ability to lead a normal life such as it was before the relevant accident has been significantly impaired by the accident in question. The trial judge made no findings of fact as to the extent to which the plaintiff's already diminished capacity was further diminished in the 1990 accident. This is not surprising in view of the case the plaintiff endeavoured to establish and the judge's findings as to his credit. Turning to the medical evidence, his Honour, for reasons which it is not necessary to repeat, considered that the evidence of Dr Ellis, Dr Ghabrial, Dr Smith and the chiropractor Brinsmead did not assist him on the question of aggravation. He then considered the evidence of Dr Guirgis who had seen the plaintiff on no less than 28 occasions between 19 November 1990 and 19 August 1992. The doctor then saw the plaintiff on 7 September 1994 and again recommended conservative treatment. With respect to the evidence of Dr Guirgis the judge said: "He seems to have accepted the plaintiff's statements that the plaintiff's symptoms settled down a few years after the 1984 incident but with respect to him the evidence before me does not seem to support that. He, however, has the disadvantage of ethically accepting the truth of his Patient's complaints". His Honour also noted that there was no evidence in the plaintiffs case from a psychiatrist or psychologist. The judge had earlier referred to the defendant's medical evidence in report form from Drs Silver and Maloney. Dr Silver thought that the plaintiff was exaggerating and was fit for labouring work. Dr Maloney said that the plaintiff had what he called "abnormal illness behaviour" the result of chronic pain syndrome but, as the judge said, it was clear from his report that the doctor did not accept the plaintiff and thought that the plaintiff could work if he wanted to. Both doctors noted that the condition of the plaintiff's hands indicated that he was engaged in manual work. The difficulty is that the judge's finding that the 1990 accident aggravated the plaintiff's pre-accident condition and contributed to the chronic pain syndrome and post traumatic stress disorder noted by Dr Guirgis, even accepting the doctor's findings at face value, did not provide the trial judge with any firm basis for an assessment of the degree to which the plaintiff's condition had been aggravated by the second accident. In particular in my opinion it did not enable the learned trial judge, having regard to his adverse findings on the plaintiff's credit, to reach a conclusion on the civil onus that the plaintiff's pre-accident diminished ability to lead a normal life had been significantly impaired by the injury suffered in the 1990 accident. In my judgment there was neither the evidence nor the findings needed to sustain the award by the trial judge based upon an 18 percent impairment and that award should be set aside. I would propose that the appeal should be allowed with costs, the award for non-economic loss set aside, and the judgment for the URJ HAYES v PETROV (Cole JA) 3 plaintiff reduced to the award for out-of- pockets of $4,207 with whatever cost consequences that has under the District Court Rules. The respondent should have a certificate under the Suitors' Fund Act. Clarke JA Subject to one matter which concerned a stay that was apparently granted I agree with the orders proposed by his Honour and the reasons which his Honour has given for those orders. Cole JA I also agree. CLARKE JA: What is the position about the stay? We are directing attention to page 218 of the judgment, we just don't know what's happened, bottom of the first paragraph. "T will grant a stay of proceedings" etc. HISLOP: Yes, I am just making inquiry as to whether that money was actually paid, whether it was paid into court and was held by the Court or whether it was paid to the plaintiff's solicitors. COLE JA: The order was that it be paid to the plaintiff or the plaintiffs solicitor. HISLOP: Yes I read that, your Honour, and I expected that that would have been done but a doubt has been raised in my mind. CLARKE JA: Extraordinary, I just wonder if it went to the first of those and probably gone, there might have been arguments about $1,460. STEWART: Apparently that sum was paid over, your Honour, $20,000. CLARKE JA: Well the net result as in GIO v Healey is that money has to be repaid less the 4,000. It would be less, less something, normally it's got to be repaid with interest, there's GIO v Healey and other cases indicated. The difference is 15,793. Mr Hislop, we reserve liberty to the appellant to apply for restitution in respect to the balance but Mr Stewart, I don't know what the practical position is but this Court has held in cases Justice Handley mentioned that restitution follows almost as night follows day. Well I don't think there is anything else we can do. Are there any other orders sought? HISLOP: Not at this stage, your Honour. CLARKE JA: The orders will be as Mr Justice Handley indicated. Appeal allowed with costs. The award for non-economic loss set aside, and the judgment for the plaintiff reduced to the award for out-of-pockets of $4,207 with whatever cost consequences that has under the District Court Rules. The respondent should have a certificate under the Suitors' Fund Act. Counsel for the Appellant: J D Hislop QC Solicitors for the Appellant: Abbott Tout Counsel for the Respondent: C K Stewart Solicitors for the Respondent: Stephen Smart and Associates