Abas v Charnock [2001] NSWCA 404

New South Wales Court of Appeal

CITATION : Abas v Charnock [2001] NSWCA 404 FILE NUMBER(S) : CA 40090/01 HEARING DATE(S) : 8 November 2001 JUDGMENT DATE : 8 November 2001

PARTIES : Rola Abas - Appellant Corey Joseph Charnock (by his next friend Francis Charles Charnock) - Respondent JUDGMENT OF : Powell JA at 23; Giles JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 7291/96 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

COUNSEL : G M Watson - Appellant M Joseph QC & R O'Keefe - Respondent SOLICITORS : Stewart Cuddy & Mockler - Appellant Firths, The Compensation Lawyers - Respondent CATCHWORDS : DAMAGES - findings credibility based - errors suggested - findings upheld - no question of principle. ND CASES CITED: Rosenberg v Percival (2001) 75 ALJR 734. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40090/01 DC 7291/96 POWELL JA GILES JA

8 November 2001 ABAS v CHARNOCK

Judgment 1 GILES JA: This is an appeal from a verdict given and judgment entered in proceedings heard by Knight DCJ in February this year. The plaintiff claimed damages for personal injuries suffered when struck by a motor vehicle on 1 September 1995. Liability was admitted, and his Honour assessed damages, before any interest, at $155,795.46. The major components of the damages were non-economic loss of $67,680 and future loss of economic capacity of $75,000. 2 The plaintiff was aged twelve years at the time of the accident. He complained of soreness in his neck, back and right ankle, and was taken to Fairfield Hospital. No skeletal damage was found, and soft tissue injury was diagnosed. He was discharged from the hospital in a wheelchair and with a neck brace. 3 The plaintiff was absent from school for five to six weeks. The injury to his ankle recovered after a little time, and did not thereafter feature in the proceedings, but on the plaintiff's case the pain in his neck and lower back remained, persisted to the time of the trial, and was expected to persist thereafter and had an effect on his earning capacity. The plaintiff had an already impeded earning capacity, in that he had been diagnosed at an early age with cerebral palsy and intellectual retardation, and that was a complicating feature in the assessment of damages. 4 Knight DCJ said that although there were some problems with the reliability of the plaintiff's memory, he generally accepted the plaintiff's evidence, and in particular was satisfied that the plaintiff continued to have neck and lower back pain and to have headaches and nightmares and engage in sleepwalking. He accepted the opinion of Professor Ouvrier, who examined the plaintiff both before and after the accident, that the pain was due to soft tissue injuries to the spinal ligaments and paraspinal muscles of the neck and lumbosacral region. 5 At a later point in his reasons, when dealing with a submission on behalf of the defendant that the plaintiff was not as incapacitated by the effects of the accident as he had said in his evidence, his Honour noted that counsel for the defendant relied in particular on three matters. He gave reasons for nonetheless accepting the plaintiff's evidence as to his incapacities resulting from the accident, and in that connection referred to a report of Professor Ouvrier in which, with the benefit of examinations of the plaintiff both before and after the accident, Professor Ouvrier said that there was objective evidence of limitation of movement and tenderness in the lumbosacral region which had not been evident prior to the accident. His Honour said that overall he was satisfied that the effect of the injury suffered in the accident was significantly to increase the incapacities that the plaintiff had prior to the accident.