ABBOUD v LAZAREVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P and STEIN JA 13 November 1997 [1997] NSWCA 3 Stein JA The only issue in this appeal is whether the trial judge erred in assessing non-economic loss at 25 per cent of a most extreme case. The respondent/plaintiff was involved in a rear-end motor vehicle collision on 17 August 1995. The claim was made on 19 September 1995. On behalf of the appellant it was submitted, that s79(1A) of the Motor Accidents Act (1988) applied, since the accident occurred prior to 26 September 1995. Alternatively, it is submitted that if s79(1A) did not apply, the intention of the Act was nonetheless to limit damages in cases of minor injuries or small claims It seems to me that s79(1A) does not apply to this accident given the date of the claim (see Schedule 4, Pt7 cl17(1)). In his opening Mr Nock SC confirmed that he accepted this as the position. However, since I am of the view that whether s79(1A) applies or not makes no difference to the fate of the appeal, I will approach the matter on the basis of Mr Nock's submissions. For the record s79(1A) provides as follows: The object of this section is to limit the amount of damages for non-economic loss in cases of claims relating to relatively minor injuries, in order to achieve the object of the Act of more fully compensating those with more severe injuries at a cost the community can afford to meet. It is the submission on behalf of the appellant that the injuries suffered by the respondent were 'relatively minor'. Accordingly, the damages for non-economic loss should be limited in order to achieve the object of more fully compensating those with more severe injuries. It is the submission of Mr Nock SC, that the finding of 25 per cent of a most extreme case was excessive. His Honour the trial judge made no specific reference to s79(1A). However, he was not obliged to do so since it seemed it did not apply at the time. Nonetheless, it is apparent from a reading of the judgment that his Honour applied s79, including s79(2). It seems to me that the appeal really boils down to whether the finding of 25 per cent was within the discretionary range. In this regard it may be mentioned that counsel representing the defendant at the trial had submitted that the non-economic loss should be assessed at 18 per cent. Before turning to the respondent's injuries and continuing disabilities, some preliminary but important observations may be made. The trial judge accepted the respondent's evidence and his truthfulness. A video taping of the plaintiff did not cause his Honour to doubt his credibility. Garling DCJ also accepted the plaintiff's doctors over the opinions of the defendant's doctors. His Honour found that the 'plaintiff's ability to lead a normal life has been significantly impaired' (AB 127 B-C). When one reads the oral evidence and reports of Drs Vago and Conrad, together with the evidence of the respondent, it is impossible in my opinion to conclude that the injuries were relatively minor. 2 UNREPORTED JUDGMENTS The collision was severe. The plaintiffts vehicle was stationary and was hit in the rear by the defendant's motor vehicle travelling at 70 kph. The plaintiff's front seat broke and he hit the dashboard. The back seat of the car broke and went over the top of the plaintiff The respondent suffered severe pain after the accident and was treated by his employer's doctor. X-rays were taken with a history of low back pain radiating into the left leg. He then saw Dr Vago who described him as 'still severely disabled' and experiencing constant pain. Examination showed muscle spasm and tenderness at L4/5 and L5/SI, limited spinal flexion and numbness in the left leg. The diagnosis was a soft tissue injury ofthe lumber spine. He was certified as unfit for work. In March 1996 the plaintiff was admitted to hospital due to severe low back pain and placed in traction with daily physiotherapy. He was referred to a specialist, Dr Maniam, whom he attended on 14 occasions up to May 1997. In February 1997, Dr Vago certified the plaintiff as fit for light duties of a sedentary nature, which did not involve any strain on his back. He was not fit for his previous employment and would require ongoing medical supervision and physiotherapy. In addition, there was the evidence of Dr Conrad. I will not specifically refer to this but it rounds out the medical picture of the plaintiff, which was placed before the court. The following is a summary of the plaintiffs ongoing disabilities: * pain and cracking of his neck in bad weather (AB 18 S-T) * can bend only with pain (AB 24 G-L) * cannot do heavy lifting * cannot perform previous work, especially work involving any form of bending * as an example, he has difficulty in bending to tie his shoe laces * intermittent left sided sciatica needs a cushion to drive and difficulty in driving for more than 3 hours. ¢ difficulty in sitting for any length of time * cold weather and climatic changes cause low back pain ¢ difficulty in getting out bed without any pain * numbness in left leg, although this varies and, * difficulty with some household duties, for example, lawn mowing. The appellant submits that his Honour's conclusions on economic loss are inconsistent with his findings on non-economic loss. Further, that his Honour has been inconsistent in his dealing with Dr Conrad's evidence. However, it seems apparent that, for purposes of assessment of non-economic loss, his Honour assumed, or accepted, the injury to be principally of the nature of musculo-ligamentous injury, rather than one involving an injury to the disc. I cannot see that his Honour's finding, and his award for economic loss, is necessarily inconsistent with his approach to non-economic loss. Taking account of the judge's preference for, and acceptance for the most part of the plaintiff,s doctors, along with his acceptance of the plaintiff's credit as a witness of truth, it is apparent that the conclusion that the plaintiff had suffered significant impairment was well justified. For my part, I cannot see how the assessment for non-economic loss was other than within the discretionary range available to Garling DCJ. I would propose that the appeal be dismissed with costs. Mason P I agree. That is the order of the court. URJ ABBOUD v LAZAREVIC (Mason P) The appeal is dismissed with costs.