Kairouz v Rice [1999] NSWCA 301

New South Wales Court of Appeal CITATION : Kairouz v Rice [1999] NSWCA 301 FILE NUMBER(S) : CA 40685/97 HEARING DATE(S) : 18 June 1999 JUDGMENT DATE : 19 August 1999

PARTIES : Mansour Kairouz v Peter John Rice JUDGMENT OF : Meagher JA at 1; Giles JA at 11; Grove J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 3400/95 LOWER COURT JUDICIAL OFFICER : George ADCJ

COUNSEL : Appellant: K. Rewell/S. Thade Respondent: J. Shore SOLICITORS : Appellant: Keddies Respondent: Abbott Tout CATCHWORDS : negligence - aggravated damages - failure trial judge to find aggravated damages. ACTS CITED : Motor Accidents Act 1988 CASES CITED: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. DECISION : Appeal Allowed; Verdict and judgment below set aside; order that there be a new trial, limited to the issue of damages; The respondent to pay the appellant's costs both below and in the Court of Appeal, and to have a Certificate under the Suitor's Fund Act in respect of the latter

- 6 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 40685/97

MEAGHER JA GILES JA GROVE AJA

Thursday 19 August 1999.

Mansour KAIROUZ v Peter John RICE JUDGMENT

1 MEAGHER JA: This is, I regret to say, yet another appeal from an unsatisfactory decision of George ADCJ. 2 The plaintiff, the present appellant, was involved in a motor car accident on 17 December 1993, when a motor vehicle driven by the defendant slammed into the rear of the plaintiff's stationary motor vehicle. The defendant, when sued, admitted duty and breach, but not damage. 3 His Honour found a verdict for the defendant. His reasoning is contained almost entirely in the following passage: "It is of course the onus for the plaintiff to prove on the balance of probabilities that the matters complained of arising out of the collision for which indeed the breach of duty is admitted did in fact arise from this collision and were not pre-existing. "I have gone through the plaintiff's medical reports and I have discussed them at some length during the course of submissions with senior counsel for the plaintiff Mr Evatt. I am not satisfied on the balance of probabilities that the plaintiff has discharged the onus of proof and that the matters complained of as a result of this accident are indeed a result of the accident." 4 The plaintiff appeals. 5 It was not in dispute that in 1980 the plaintiff was also involved in another motor vehicle accident - a very serious one - which resulted in spinal surgery in 1983 and in 1992. 6 The plaintiff did not seek any damages for past or future loss of earnings. 7 There is no question but that the plaintiff was an unsatisfactory witness: he had lost his memory (a result of the 1980 accident); he had a functional overlay; and he was given to exaggeration. 8 The most surprising feature of the case is that all the many doctors involved in the case - those consulted by the plaintiff and those consulted by the defendant - agreed that the 1993 accident aggravated the injuries caused by the 1980 accident. 9 His Honour did not deal with the nature and extent of that aggravation; nor whether, on the currently accepted misconstruction of the Motor Vehicles Act, it continued until the date of trial; nor the extent, if any, to which the undoubted aggravation supported the plaintiff's testimony, unsatisfactory though it was; nor the importance to be placed on the payment of over $800 by the defendant toward the plaintiff's medical expenses as an admission of damage. 10 In my view the following orders should be made: 1. Appeal allowed; 2. Verdict and judgment below set aside; 3. Order that there be a new trial, limited to the issue of damages; 4. The respondent to pay the appellant's costs both below and in the Court of Appeal, and to have a certificate under the Suitor's Fund Act in respect of the latter.