KALACHIAN v JORGENSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, PRIESTLEY and COLE JJA 22 May 1996, 22 May 1996 [1996] NSWCA 287 Damages — Motor vehicle accident — Heads of damages — Economic loss — Loss of earning capacity — Medical evidence DAMAGES — Motor vehicle accident — Heads of damages — Economic loss — Loss of earning capacity — Medical evidence. APPEAL — COURT OF APPEAL — Appeal from decision of Master — Circumstances in which Court will interfere — Abalos v Australian Postal Commission (1990) 171 CLR 167; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299; Devries v Australian National Railways (1992-1993) 177 CLR 472 at 479 applied. Appeal dismissed with costs. Cole JA The appellant then aged 27 was involved in a motor vehicle accident on 24 June 1978. Before Master Malpass liability was not in issue and he awarded her the following damages: Past out of pocket expenses 14,000.00 General damages 65,000.00 Interest on past general damages 40,950.00 Past economic loss 2,746.20 Interest on past economic loss 879.00 Past voluntary care 240.00 Future economic loss 10,000.00 Future out of pocket expenses 5,000.00 Totalling 138 815.20 This the Master rounded to $139,000. The appellant seeks a new trial limited to damages. An amended notice of appeal raised three bases for that contention. Ground 1 was that the Master erred in rejecting Dr Middleton. Ground 2 contended that the Master erred in basing his rejection of the plaintiff's evidence upon two matters which did not provide a rational basis for the rejection. Ground 3 contended that the Master erred in confining loss of earning capacity to twelve weeks following a cervical spinal fusion operation and failing otherwise properly to compensate the appellant for her reduced earning capacity. By reason of these three circumstances it was said as the fourth ground that all heads of damage had been discounted inappropriately by the Master and there should be a new trial. In my opinion none of the grounds of appeal have been established. GROUND 1 2 UNREPORTED JUDGMENTS The Master was unimpressed by Dr Middleton as a witness. He thought she was an advocate for the plaintiff, avoided giving appropriately direct answers to questions, and was reluctant to make appropriate concessions. Having noted that she was not a treating doctor, and that she accepted the complaints as given by the plaintiff, some of which history Master Malpass found to be untrue and thus her opinions depended upon that unreliable history, the Master said: "T feel that I can give little weight to her evidence. I prefer the evidence given by other medical experts." The Master was faced with a plethora of medical evidence. Apart from tendered reports there was oral evidence from Dr Ireland, Dr Middleton, Dr Milton, Dr Hodgkinson, Dr Mellick and Dr Ravai. Reports were tendered from Dr Harvey, Dr Shetty, Dr Seif, Dr Anand, Dr Dan, Dr Stephen, Dr Bannister, Dr Allam, Dr Barry, Dr Bentivoglio and Dr Donaldson. Much of the medical evidence was in conflict, or at the very least, inconsistent. The Master gave close attention not only to the reports tendered but to the oral evidence given by medical practitioners, and to the manner in which they gave it. He was obliged to reach a view regarding that evidence which he preferred where there was conflict or inconsistency. In those circumstances it is well established that the circumstances in which this Court may interfere with the Master's findings are limited. (See Abalos v Australian Postal Commission (1990) 171 CLR 167; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299 per Clarke JA; Devries v Australian National Railways (1992-1993) 177 CLR 472 at 479). In my view nothing has been put to justify this Court in disturbing the Master's finding regarding Dr Middleton. Indeed, in my opinion, a reading of the transcript supports the Master's view. GROUND 2 The contention that the Master based his rejection of the plaintiffs evidence that she desired to involve herself full-time in the conduct of the business with her husband or to engage in employment outside that partnership upon the circumstance that Dr Ireland's reports did not record complaints regarding incapacity to work or upon her increased family commitments and improvement in family financial circumstances is misconceived. Whilst the plaintiff gave evidence of her desire to continue working in the partnership or be otherwise employed, the Master did not believe her. He rejected her as a witness of credit on a number of occasions on a number of different bases. (See for instance the Appeal Book at 638, 647, 654, 656 and 657). The Master rejected some aspects of her claim for past economic loss. For example, she claimed an incapacity to work from 4 December 1978 to September 1979. The incapacity claimed commenced the day after she and her husband sold their existing business, she having worked in that business from the date of the accident until the day it was sold. This example gives some support to the Master's view that she was unreliable, and support for his view regarding her future work intentions. In my opinion it was open to the Master to find as he did that: "In my view, it was not her intention to engage in employment. She had an intention to participate in the running of the family business; to the extent that she chose to do so. I am not satisfied that she intended to work outside that business as a shop assistant or in any other capacity. I do not accept that she intended to work full time, as a shop assistant or in any other capacity, at any time since the URJ KALACHIAN v JORGENSON (Mahoney P) 3 accident. I do not accept that during such period she intended to involve herself in any business, other than that carried on with her husband." GROUND 3 Master Malpass awarded twelve weeks economic loss for the past, and a cushion of $10,000 for the future. The twelve weeks was the period of recovery after a cervical spinal fusion. In fact the appellant had worked for much of the time from the accident in June 1978 until the fusion operation in July 1986. The evidence established that after the twelve week period of recovery she had worked with her husband in their partnership business at varying times performing varying tasks. In my opinion nothing has been raised to permit this Court to interfere with the Master's finding that she continued to have a capacity to work in that partnership business if she wished to do so, or to disturb his finding that a cushion of $10,000 was an appropriate sum against any future desire she may have had to work elsewhere as a shop assistant. The three specific grounds of appeal fail. It follows, in my opinion, that the fourth ground which asserts that damages awarded in respect of various heads were inappropriately diminished in consequence of those three grounds also fails. I would propose that the appeal should be dismissed with costs. Mahoney P I agree with the orders proposed by Mr Justice Cole and generally with his reasons. The Court has had the benefit of detailed written submissions from the appellant and from the respondent. Most of the matters in argument are covered and most of the assertions made by the appellant are dealt with in the written submissions. The plaintiff's claim was agitated at length before the Master. It was before him on part at least of five days during 1990. There are some 633 pages of evidence, and judgment extends over some 48 pages. The Court has, therefore, had the benefit of a detailed review of her case and of the reasons given for the rejection of it. In relation to the first ground of appeal (which relates to the Master's rejection of the evidence of Dr Middleton) some at least of the Master's reasons go to what he saw of the witness in the witness box. For myself, I am cautious in accepting a finding based upon what is seen of a witness in the witness box. I do not mean by that that such observations may not be vital to the assessment of evidence; quite often they are, as any trial judge will recognise. However, it has been said in this case that, upon a rational reading of the evidence, the reasons given by the Master in this regard cannot be sustained. Accordingly, I have examined the evidence to see whether there is an appropriate basis, or could be one, for what the Master has done. I am satisfied that what the Master has done should not be set aside; the reasons that have been advanced against it do not warrant that being done. The basic finding of the Master was that the true cause of the greater part of the plaintiffs difficulties, in so far as they existed, related not to matters resulting from the accident, but to, as it was described in evidence, the calcification of her left shoulder. In the Master's judgment he emphasised this on several occasions. It is sufficient to refer to two passages in the judgment. The Master said: "It seems to me that the calcification in her left shoulder cannot be related to the accident. She has suffered from this problem for some years. It is the cause of most of her present discomfort. She continues to have some cervical discogenic pain. It may be contributing to some pain in her left arm." 4 UNREPORTED JUDGMENTS Subsequently the Master said: "For many years she has experienced considerable discomfort caused by the calcification in her shoulder. Dr Hodgkinson was not able to say exactly when the calcification appeared. She had made complaints, relating to her left shoulder, prior to the fusion operation. The operation brought about some improvement in her neck condition. It seems to me, that this calcification problem has been the principal cause of any incapacity for many years. The neck problem can only be said to bear a minor responsibility for her continuing complaints." Those findings have not been attacked, nor do I think that in the circumstances they could have been. Those findings are, I think, relevant in the assessment of what the Master did in relation to the evidence of Dr Middleton. I have considered whether, upon a rational reading of the evidence, there can be a basis for the Master's findings; the finding, for example, that the doctor was somewhat reluctant to make concessions and was an advocate of the cause for which she was called. Having regard to - I take by way of example one or two matters - the insistence by cross-examining counsel that she answer the questions that had been asked, and his bringing her back to them, having regard to her use of the phrase "not necessarily" or similar phrases, I think that the Master could have taken the view on what he saw of her that she justified the comments that he had made. I am conscious that an understanding of the transcript, and of the significance of phrases such as "Answer the question", and "Not necessarily", may be affected to a significant extent by what was happening in the course of the evidence, and what the Master saw of what took place at the particular time. In the end I am not satisfied that the Master's comments could not have been justified by what occurred at the trial, and particularly by what the doctor said. Reference has been made by Mr Di Suvero in his written submissions to another matter mentioned by the Master, viz, the differences between complaints recorded in the two reports that were made by Dr Middleton. It is not necessary to pursue that aspect of the matter further. In the end I am not satisfied that the complaint about the Master's judgment in this regard is made out. In my opinion, having regard to the advantages the Master had, his findings may well have been justified on the evidence: they probably were. For the reasons give by Mr Justice Cole the Court cannot interfere in this regard. There are complaints as to the amount allowed for pre-trial and post-trial economic loss. This is in Ground 3 in the notice of appeal. The Court has had the benefit of a detailed chronology of the events in question prepared for the appellant plaintiff. Looking at the history of the matter as set forth in that chronology there is, in my opinion, a substantial basis on the evidence for the Master's view, implicit or explicit in his judgment, that between the date of the accident, 24 June 1978, and the date of the cervical fusion operation, 2 July 1986, there was not a substantial loss of economic capacity. I shall not lengthen this judgment by detailing the matters there referred to. I shall take but one example. It is indicated in the Master's judgments that between May 1981 and July 1986, as the evidence disclosed, the plaintiff was helping her husband in the business and, as the Master found, working part-time for five or six hours a day for five days a week. Such matters must be significant in the assessment of whether in truth she lost any substantial part of her economic capacity during that time. URJ KALACHIAN v JORGENSON (Priestley JA) 5 As to the position following the cervical operation, the twelve weeks recovery period, the Master has found that the substantial part of the difficulties suffered by her were the result of the calcification of the shoulder rather than of the accident. Paying full regard to the submissions that have been made, I do not find any proper basis for upholding that ground of attack upon the Master's judgment. The second ground of appeal relates to the Master's rejection of the plaintiff's evidence that she desired to involve herself in full-time work in the conduct of the business, or to engage in employment outside the partnership. It is sufficient to say that I do not think the Master erred in that regard. Having regard amongst other things to the history of what had taken place as disclosed in the chronology and in the evidence generally, I think his assessment was justified. I do not think what has been submitted warrants intervention by this Court. I have detailed these reasons because, as I have indicated, the Master based what he said upon his assessment of the witnesses and because of the nature of the attack which has been made upon his findings. But in the end I am satisfied that no proper basis for intervention has been made out. I agree with the orders proposed. Priestley JA I agree with the President, and with Mr Justice Cole. Mahoney P: The orders of the Court will therefore be that the appeal is dismissed. It must he dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: BJ Gross QC and D Hogan-Doran Solicitors for the appellant: GH Healey and Co Counsel for the respondent: HM Di Suvero Solicitors for the respondent: GIO General Ltd