New South Wales Court of Appeal CITATION : Basyouni Pty Limited & Anor v McKenzie [2001] NSWCA 386 FILE NUMBER(S) : CA 40375/00 HEARING DATE(S) : 28 September 2001 JUDGMENT DATE : 2 November 2001 PARTIES : Basyouni Pty Limited and Neville Bilich v Paul McKenzie JUDGMENT OF : Priestley JA at 1; Davies AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 195/99 FILE NUMBER(S) : LOWER COURT His Honour Judge Delaney JUDICIAL OFFICER : COUNSEL : Appellant - R. Stitt QC, A.J. Stone Respondent - B. Donovan QC, R. McCloghry SOLICITORS : Appellant - Abbott Tout Respondent - Eugene Lepore & Associates CATCHWORDS : Quantum appeal - no question of principle LEGISLATION CITED : Motor Acidents Act 1988 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40375/00 DC 195/99 PRIESTLEY JA DAVIES AJA Friday, 2 November 2001 BASYOUNI PTY LIMITED & ANOR v McKENZIE QUANTUM APPEAL – no question of principle – criticism of trial judge's fact finding and methods of calculation not shown to be in error – appeal dismissed with costs. ORDER Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40375/00 DC 195/99 PRIESTLEY JA DAVIES AJA Friday, 2 November 2001 BASYOUNI PTY LIMITED & ANOR v McKENZIE 1 THE COURT: Mr McKenzie, the plaintiff, was injured on 1 October 1996 when the car he was driving was struck from the rear by a 15 tonne truck. He brought an action in the District Court against the owner and driver of the truck as defendants. The case was tried before his Honour Judge Delaney. The defendants admitted liability. Delaney DCJ assessed the plaintiff's damages at $185,826 and found a verdict and gave judgment accordingly. He ordered the defendants to pay the plaintiff's costs. The defendants appealed. 2 Delaney DCJ began his fact-finding by saying that he accepted the plaintiff generally. He went on to record that the plaintiff was born on 18 October 1953, left school at the end of fifth form and began to work for the Water Board, then worked in the Gulf of Carpentaria on a prawn trawler, then returned to Sydney and obtained a welding ticket, worked as a welder until 1992, when he sustained a severe back injury after which he did not work and had spinal surgery and that at the time of the accident in 1996, he was seeking work. He then narrated the effect of the accident on the plaintiff and the history of his subsequent medical treatment as follows: "He said that after the accident he developed neck pain, which he had never had before, together with headaches. In addition, he experienced, he said, severe pain in the lumbo-sacral area. He was taken to Westmead Hospital. X-rays were taken of his spine. These noted the rods and screws which were in situ following his earlier accident and medical treatment. His local practitioner, Dr Poulos, saw him. Dr Poulos looked after the plaintiff in the months after the accident. He arranged for the plaintiff to have further x-rays of the lumbo-sacral spine. He arranged physiotherapy. He provided various forms of analgesics to relieve the problems complained of by the plaintiff. In a report dated 31 August 1997, Dr Poulos said, 'Whiplash injuries of the spine are notorious for their prolonged symptoms and debility. The prognosis is guarded on this fellow given the severity of the impact and his previous back surgery.' The plaintiff was then referred to the orthopaedic surgeon, Dr Irani, who had treated him in respect of his earlier problems. In a report dated 24 June 1997, Dr Irani said, 'On re-examination on 29 November 1996 the plaintiff complained of neck pain and neck stiffness, as well as low back pain, which he described as a continuous ache. The plaintiff also complained of intermittent headaches, but there was no paraesthesia or numbness in the upper and lower limbs. He held his neck in a stiff manner. He was tender over the cervical and other dorsal spinous processes and the paravertebral muscles. He was tender over the trapezia. Movements of the neck were restricted to three fourths of their normal range. Although his back posture was normal, he had tenderness over the lumbo-sacral region with restriction of spine movements.' Dr Irani referred him for physiotherapy and reviewed him over a period of time. Dr Irani said that in relation to the second accident, the subject of these proceedings, further aggravation of his back pain and symptoms of a cervical strain developed, and that he was continuing to have him under his care. In a report of Dr Andrew Walker, which was tendered as part of the evidence in this case by the plaintiff, the following appears, 'In my opinion Mr McKenzie's current neck and back dysfunction is related to his motor vehicle accident. It is my opinion that he was involved in a major motor vehicle accident with a high energy impact that has resulted in a significant flexion extension style injury to the cervical spine, as well as trauma to the lumbo-sacral spine. It should be noted that the impact was such that his driver's seat was broken from its mounts and he was propelled backwards. This arching injury has, in my opinion, aggravated a previously stable lumbo-sacral fusion and made this symptomatic. According to the x-ray examination performed shortly after the motor vehicle accident his previous antero and retro listhesis (?) have been unchanged from the previous study, but it is my opinion, given the proximity of the onset of his symptoms and their stability prior to the accident, that the trauma his lumbar spine has been subjected to has caused this underlying biomechanical dysfunction to become symptomatic. In my opinion, given his age, level of education and training, and his current impairment, he is unfit to re-enter the workforce in any meaningful capacity." 3 The trial judge then remarked that Dr Walker's opinion, in a report dated 21 July 1999, was a very thorough assessment of the plaintiff and that, in general terms, he accepted it. He repeated that he accepted the plaintiff's evidence, also "in a general way", with a number of qualifications which he went on to explain. 4 The first of these concerned the plaintiff's description of the accident. He found that the plaintiff had exaggerated the degree to which the impact had affected his car. He accepted the evidence of a witness about this which was in direct conflict with that of the plaintiff. 5 The other concerned the plaintiff's claim that at the time of the accident he had been training with a company called Premier Fosters which had been going to employ him at a salary of $37,000 a year plus a company maintained vehicle. Mr Foster of the company gave evidence in support of the plaintiff's claim. About this, the trial judge said that Mr Foster: "had never at any stage specifically offered the plaintiff a job at $37,000 per annum with a car, and that as far as the training course that was referred to, it was, to a great degree, a figment of both the plaintiff's and Mr Foster's imagination. I am satisfied that the plaintiff did go to Premier Fosters premises to see whether he might have been able to get a job, but as far as there being any specific arrangements made, I am not satisfied that any such arrangement was ever made in those circumstances." 6 Accordingly, the trial judge rejected the plaintiff's claim for continuing economic loss on the basis of the alleged expected employment with Premier Fosters. 7 A principal issue at the trial was the extent to which the plaintiff's disabilities following his October 1996 accident were due to that accident or were due to his earlier back injury. In dealing with this, the trial judge referred to earlier reports from Dr Irani, including one following an examination on 29 November 1996 in which he said that since he had last examined him in 1994, he had developed severe neck pain with low back pain after the 1996 accident. After consideration of all the medical evidence the trial judge said: "I accept that the plaintiff did have continuing back pain from his 1992 incident which was, to a degree, disabling at the time that the accident, the subject of these proceedings, occurred. However, he did not have any problems with his neck, and his back pain, I find, because he had not attended Dr Irani since 1994, had stabilised to the extent that he was, whilst getting pain, only receiving it occasionally. At the same time, however, there was no suggestion that he had been cleared for work, although clearly, he was seeking to be retrained and that was his hope." 8 The trial judge then said that he accepted the continuing symptoms referred to by Dr Walker. 9 The damages of $185,000 826 assessed by the trial judge comprised the following elements: (a) non economic loss pursuant to section 79 A of the Motor Accidents Act, assessed at 30 percent of a most extreme case, $63,000 (b) past medical expenses, agreed, $1824 (c) past economic loss, $30,000 (d) future economic loss, on the basis of $200 per week, reduced by 30 percent for vicissitudes of life, rounded, $90,000 (e) future medical expenses, $1000. 10 A claim for $600 for behavioural management during October and November 1999 was rejected by the trial judge for lack of evidence connecting it with the October 1996 accident. 11 Although the defendants (whom I will call the appellant) had filed written submissions some time before the appeal came on for hearing, on the hearing day senior counsel for the appellant made his submissions by reference to revised written submissions which had been prepared the day before the hearing. His first group of submissions concerned grounds four and six of the six grounds of appeal. His second group of submissions went to ground one, the third to ground two and the fourth to grounds three and five. 12 Grounds four and six. These grounds were that the trial judge erred in allowing non economic loss of 30 percent having regard to the nature of the plaintiff's pre-existing condition and the injuries suffered and also having regard to the rejection of the plaintiff's evidence in relation to the manner in which the accident occurred and having regard to the judge's preference in this respect for the appellant's witness. 13 Senior counsel began his principal argument in support of these grounds by pointing to the trial judge's reliance on Dr Walker's opinion as basic to the conclusion he arrived at concerning the difference made to the plaintiff by the October 1999 accident; next he referred the court to the first two pages of Dr Walker's report in which the doctor set out, amongst other things, the history of the accident as recounted to him by the plaintiff and submitted that as this account corresponded to the version which the plaintiff had repeated in his evidence at the trial and which the trial judge had said was exaggerated, the opinion expressed on the last page of his report and accepted by the judge, should not have been accepted by him, because it was based on incorrect factual assumptions. 14 In our opinion, the trial judge did not fall into the error contended for by the appellant. The trial judge did not entirely reject the plaintiff's evidence of the way in which the accident occurred; his opinion was that the plaintiff had exaggerated, not fabricated. Dr Walker, in the opinion part of his report does not appear to have relied on the part of the plaintiff's recounted history in which he asserted that his car had been pushed some 30 to 50 metres from the point of impact. In the opinion part of his report Dr Walker did not mention that at all. Instead, he noted the less dramatic fact "that the impact was such that his driver's seat was broken from its mounts and he was propelled backwards". At the trial, the plaintiff gave evidence that the back of the car was badly crumpled and that the seat came out of its position. He was not specifically cross-examined about these matters. No evidence was given concerning the state of the car after the collision. We think that a fair reading of the trial judge's reasons should take into account that he was well aware of the plaintiff's exaggerations about what happened at the time of the collision, must have noted both the history recorded by Dr Walker and the more cautious way in which Dr Walker was indicating, in his opinion paragraph, the facts on which he was basing his opinion, and infer that the trial judge accepted the plaintiff's evidence about the crumpling of the car and the seat coming out of its position and accordingly thought that the opinion expressed by Dr Walker was acceptably based on those facts. We do not think there is any error in this. 15 A further submission made in support of grounds four and six was that the trial judge had not correctly applied section 79A of the Motor Accidents Act . Subsection 3 of that section was as follows: "No damages are to 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 has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident." 16 It was submitted that the trial judge had not made the comparison required by the subsection. Senior counsel, correctly, did not dispute that "normal" in the subsection meant normal for the plaintiff immediately before the October 1996 accident. It seems to us quite clear that the trial judge in fact did make the comparison required by the subsection. This appears both from part of the passage from his Honour's reasons cited in par 7 above and from a reading of his reasons generally. Senior counsel's submission was that compliance with section 79 A (3) must be explicit and clear. We think that in deciding whether a trial judge has complied with the subsection an appellate court should read the whole of what the trial judge has relevantly written in order to see whether as a matter of substance the trial judge has done what the provision requires. In our judgment, it is clear that in the present case the trial judge did comply with the subsection. 17 It was next submitted that the trial judge was in error in assessing the severity of the non economic loss to be equal to 30 percent of a most extreme case. However, the submission depended in part upon criticism of the trial judge's fact-finding with which criticism we have not agreed. It seems to us relatively clear that the trial judge's qualified acceptance of the plaintiff's evidence was sufficient to support the percentage he arrived at. The judge's reasons show that he was very well aware first, that the plaintiff had given his evidence in a histrionic way and had exaggerated part of his evidence in order to inflate his damages, second, that he must take that into full account in assessing damages, and then, despite that aspect of the plaintiff's case, that the opinion he had formed was that the plaintiff had suffered significant damage as a result of the October 1996 accident. 18 Ground 1. Ground one that was that the trial judge erred in finding the plaintiff had suffered any past economic loss and in making a global award for loss of opportunity of $30,000. 19 In our view there was evidence before the trial judge upon which he was entitled to find, as he did, that at the time of the October 1996 accident, the plaintiff had reached a stage of recovery from his 1992 injury which would have enabled him, had he not been injured in the accident, to use some part of his previous work capacity in some employment. The trial judge clearly realised that the plaintiff had tried in his evidence to exaggerate the extent of his recovery and of his working capacity at the time of the accident. In our view the trial judge was exercising reasonable judgment in reducing the plaintiff's claim to the extent that he did. In the circumstances, we do not think that his use of a global estimate for the closed period was an appellable error. 20 Ground 2. In this ground the appellant asserted that the trial judge erred in finding under section 70A that there was at least a 25% likelihood that the plaintiff would sustain a future economic loss or diminution of future economic capacity. This ground depended on the same attack on the trial judge's acceptance of Dr Walker's evidence as that made in support of grounds four and six. The failure of that attack in regard to those grounds means that this ground must fail. 21 Grounds 3 and 5. Ground three claimed that the trial judge erred in reducing the amount allowed for future economic loss by only 30 percent having regard to the nature of the plaintiff's pre-existing condition and nature of the injuries suffered and ground four that he further erred in calculating future economic loss of the basis of $200 per week until age 65 after having rejected the plaintiff's evidence and the evidence of Mr Foster in relation to a job offer. 22 We do not think we can do more in regard to the complaint about the 30 percent reduction for vicissitudes than to say that on the materials before him and in light of the facts he found, with which we have found no mistake, the percentage chosen by the judge was well within the range of permissible judgment. 23 The reasons we have given in dealing with earlier grounds cover the complaint about the basis on which future economic loss was calculated. The ground depended upon a view being taken of the plaintiff's condition at the time of the October 1996 accident and of the difference that accident made to his then condition different from that taken by his Honour. We have already explained that in our view his Honour arrived at his conclusions after taking into account the unfavourable aspect of the opinion he had formed concerning the plaintiff's credibility. On that basis, we do not see any error shown in the figures his Honour decided upon. 24 Conclusion. In our opinion, the appeal should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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