Bartrim v Ceissmann [1999] NSWCA 379

New South Wales Court of Appeal CITATION : Bartrim v Ceissmann [1999] NSWCA 379 FILE NUMBER(S) : CA 40696/99 HEARING DATE(S) : 20/09/99 JUDGMENT DATE : 18 October 1999

PARTIES : John Thomas Bartrim v Lynne Maree Ceissman JUDGMENT OF : Fitzgerald JA at 1; Davies AJA at 12

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 678/90 LOWER COURT JUDICIAL OFFICER : Dodd DCJ

COUNSEL : P Biggins (Appellant) R C Tonner (Respondent) SOLICITORS : Dominic David Stamfords (Appellant) Holman Webb (Respondent) CATCHWORDS : Damages for personal injury; whether sufficient allowance for general damages and for future economic loss; no point of principle. ACTS CITED : Social Security Act 1947 (Cwlth) ss27 and 28. CASES CITED: Re Panke and Director-General of Social Services (1981) 4 ALD 179. DECISION : Application for leave dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40696/98 DC 678/90

FITZGERALD JA DAVIES AJA Monday, 18 October 1999

John Thomas BARTRIM v Lynne Maree CEISSMAN

JUDGMENT

1 FITZGERALD JA: This is an application for leave to appeal. It was conceded by Mr Bartrim that leave is necessary. 2 I have read the reasons for judgment of Davies AJA, who has summarised the circumstances giving rise to this application. 3 As I understood Mr Bartrim's complaints with respect to the trial judge's judgment, they related principally to the amount which he was awarded for non-economic loss ($34,500) and economic loss ($5000). The trial judge also reduced the amount awarded for future medical expenses from the amount claimed ($38,437) to $35,000. 4 Mr Bartrim was aged 50 when he was injured on 9 October 1987 and 61 at the time of judgment on 14 August 1998. Prior to his injury, he had been diagnosed as epileptic and had had psychiatric problems, and had applied for an invalid pension. That application was subsequently granted retrospectively to the date of application. Since 1968, he had had a business selling electrical equipment but, according to his records, had earned only about $100 per week. 5 As is so often the case, Mr Bartrim's action became complicated, to his disadvantage, by his attempt to obtain a large award. Evidence was given that his son was to have the electrical business, while Mr Bartrim engaged in gold mining, prospecting and gem cutting, which, it was suggested without significant evidence, would prove highly remunerative. 6 In determining Mr Bartrim's economic loss, the trial judge was required to assess the amount which Mr Bartrim had lost between the accident and trial and his loss of earning capacity for the future. Perhaps because of his invalid pension, Mr Bartrim did not present his case at trial on the basis that, but for his accident, he could have continued to earn $100 per week from his electrical business. Rather, he chose to present his case on the footing that, but for the accident, all that he would have earned pre-trial or had the capacity to earn in the future was the amount which he might have gained from mining, prospecting and gem cutting. The trial judge assessed that as "close to nominal". That was not surprising on the evidence. 7 Unless Mr Bartrim can demonstrate an error which justifies leave to appeal in respect of the award of $34,500 for non-economic loss, there is no basis for leave to appeal in respect of the award of $5000 for economic loss, or obviously, the small reduction in the amount awarded for future medical expenses. 8 The amount awarded to Mr Bartrim for non-economic loss was based on the trial judge's assessment that the accident had increased Mr Bartrim's pre-existing physical, psychological and psychiatric problems by 22% of a most severe case. 9 A particular complaint was made by Mr Bartrim of a remark by his Honour that a "large psychological component" in Mr Bartrim's symptomatology "to a certain extent … may resolve once this court process is finished". Although there was no express expert evidence to that effect, there was some evidentiary foundation for the trial judge's inferences. I am unpersuaded that a grant of leave to appeal to challenge those finding is warranted. 10 That aside, Mr Bartrim argued that the amount awarded to him for non-economic loss is too low. While there is force in that submission, the discrepancy is insufficient to justify a grant of leave to appeal. 11 I agree with Davies AJA that the application for leave to appeal should be dismissed with costs. 12 DAVIES AJA: This is an application for leave to appeal from the judgment of a Judge of the District Court of New South Wales. His Honour awarded $88,614.16 by way of damages to the applicant, Mr John Bartrim, in respect of injuries and loss suffered as a result of the negligent driving of the opponent, Lynne Maree Ceissman. 13 Although numerous medical reports were tendered in evidence before the trial Judge, only one medical witness, Dr Gabrael, gave oral evidence. He was a general practitioner who had attended Mr Bartrim for many years, both before and after the accident. On his evidence, Mr Bartrim had been very fit prior to the accident. Other evidence adduced on behalf of Mr Bartrim tended to show that, after the accident, Mr Bartrim had suffered from both an exacerbation of underlying degenerative changes and a severe psychological illness. In this application, it was submitted that the award of damages was inadequate. 14 However, there were a number of factors tending to the contrary. One was that the claim as made in the Statement of Claim was limited to $100,000. The proceedings had commenced on 29 June 1990 and no application for amendment had been made. 15 Another was that Mr Bartrim gave evidence that, before the accident, he had applied to the Department of Social Security for an invalid pension and, subsequent to the accident, the pension had been granted retrospectively to the date of application. Section 28 of the Social Security Act 1947 (Cth) provided that an applicant may be granted an invalid pension if he is, inter alia, "permanently incapacitated for work". Section 27 of the Act provided: 27. A person is permanently incapacitated for work for the purposes of this Division if: