Rajcoomar v Darocha [2001] NSWCA 30

New South Wales Court of Appeal

CITATION : Rajcoomar v Darocha [2001] NSWCA 30 FILE NUMBER(S) : CA CA 40605/99 HEARING DATE(S) : 27 February 2001 JUDGMENT DATE : 27 February 2001

PARTIES : Shamikapoor Rajcoomar - Appellant Stephen Darocha - Respondent JUDGMENT OF : Powell JA at 32; Giles JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT 4564/97 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER :

COUNSEL : I D Cullen & J Laucis - Appellant J E Maconachie QC & J Ryan - Respondent SOLICITORS : G H Healy & Co, Bondi - Appellant Abbott Tout - Respondent CATCHWORDS : DAMAGES - motor accident - whether significant impairment of ability to lead a normal life - cushion for economic loss - whether adequate - no question of principle. ND DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40605/99 DC 4564/97

POWELL JA GILES JA

Monday 26 February 2001 RAJCOOMAR v DAROCHA JUDGMENT

1 POWELL JA: I would ask Mr Justice Giles to deliver the first judgment. 2 GILES JA: The appellant was involved in a motor vehicle accident on 27 March 1994. He struck his forehead on the windscreen of his car, his right hand was jammed between the steering wheel and the driver's door and his left shoulder was twisted against the restraint for his seat belt. Liability was admitted. Phegan DCJ assessed the appellant's damages at $45,314.95. After deduction of amounts advanced to and paid on behalf of the appellant, judgment was entered in his favour for $20,834.41. The respondent was ordered to pay the appellant's costs to the date of an offer of compromise, but because of the offer of compromise the appellant was ordered to pay the respondent's costs thereafter. 3 Phegan DCJ did not award any damages for non-economic loss, finding that the appellant's ability to lead a normal life was not significantly impaired by the injuries suffered in the accident at the time of trial (see s 79(1) of the Motor Accidents Act 1988 as it stood at the relevant time and Roberts v White (1999) 29 MVR 331). The $45,314.95 was made up of out of pocket expenses of $12,814.95, an award for future medical expenses of $2,800 and an award for diminution of earning capacity of $30,000. 4 In this appeal the appellant put essentially three submissions - (a) that his Honour was in error in failing to award damages for non-economic loss because on the findings made by his Honour and in the light of some other matters to which attention was drawn in the appeal the appellant's ability to lead a normal life was significantly impaired at the date of trial and to an extent greater than 8% of a most extreme case; (b) that his Honour had failed to award damages for past economic loss or, if he had awarded such damages as part of the $30,000, that he had awarded an inadequate amount; and (c) that the $30,000 was an inadequate amount for future economic loss, and even more inadequate if including damages for past economic loss. 5 The grounds of appeal as filed included a challenge to the order for costs so far as the appellant was ordered to pay costs to the defendant. At the hearing of the appeal no complaint was made as to the order on the basis on which his Honour made it. The ground of appeal would arise if the appeal were to succeed in a manner material to the offer of compromise, because it would then be necessary to reconsider the order. 6 The appellant was found to be unreliable as an historian, and with credibility significantly compromised by professed lack of recollection under cross-examination contrasted with good recollection in chief; what were described as conspicuous inconsistencies in the accounts he gave to different treating doctors and to medico-legal experts and also in comparison with his evidence; and by what were described as glaring inconsistencies in personal details. In particular, most of the accounts given to doctors did not include that his right wrist, the subject of his principal complaint of injury in the accident, had been earlier injured and had given him trouble over many years prior to the accident. Nor did most of the accounts given to doctors include that the appellant had been affected with quite a large number of medical problems which had interfered substantially with his personal life and work history. There was no challenge in the appeal to his Honour's assessment of the appellant as a man of low credibility. 7 The appellant gave evidence that he suffered from headaches and from pain in the left shoulder in the immediate aftermath of the accident, but it was found that both those matters had significantly resolved and that the shoulder problem, so far as it remained, did not cause any substantial inconvenience. The appellant's case was really founded on what he said was a permanent disability in his right wrist, a disability causing continuing pain and restriction of movement and use and seriously affecting his earning capacity and his ordinary enjoyment of life. 8 The appellant had fractured his right wrist playing soccer in 1979. He had undergone a series of operations involving reduction and fixation and later a bone graft. When he went to his doctor in early 1991 with a complaint of constant pain, it was found that the union had been incomplete and that there was early osteoarthritic degeneration and instability. 9 The wrist was injured in an incident in which the appellant was the subject of an assault, and was also injured at work in late 1992. It was found that the long standing non-union had been irritated and made symptomatic. The final recommendation at this time was for conservative treatment prior to consideration of an operation, and by mid 1993 there had been significant improvement but with continuing concern about osteoarthritis. Dr Neil's conclusion, it seems accepted by his Honour, was that a fibrous union had brought stabilisation of the appellant's wrist which but for the accident could have persisted for a considerable time. That said, his Honour was clearly enough of the view that the incidents affecting the wrist had begun to bring more frequent instability, and that it could well have been that some other incident would have brought irritation and a symptomatic wrist injury quite apart from the accident at some time in the future. 10 Following the accident the appellant complained of a very painful right wrist. The long standing un-united fracture was noted and, after initial conservative treatment, surgery was recommended. In October 1994 a resection of pseudoarthrosis and insertion of a Herbert screw was undertaken, but it did not lead to union. In February 1995 a vascularised radial graft was performed. This brought reunion, but with residual deformity. Relevantly to one of the appellant's submissions in the appeal, it is clear enough that over at least the period immediately prior to these operations and during them and a period of recuperation, the appellant had obvious limitations on the use of his wrist. The appellant's evidence of continued limitations, and pain and in particular loss of sensation in his wrist and hand as at the date of trial, was not fully accepted - indeed, it would be correct to say but little accepted. 11 It was found that, save for damage to the radial nerve, the surgery had been conspicuously successful and had achieved a satisfactory range of motion and function, and that the appellant's wrist was in a much better and more stable condition than it had been since the soccer injury. There was numbness in the small area of the web between the thumb and the forefinger, but not the more extensive numbness asserted by the appellant. His Honour found, referring to the loss of sensation of which the appellant complained - "I am satisfied that it is much more confined than the plaintiff claims, and that it does not therefore have the serious effects which the plaintiff attributed to it that makes it, for example, dangerous for the plaintiff to undertake activities such as those associated with the trade for which he is qualified, namely, that of a boilermaker/welder."