Gatzias v. Middlehurst [2002] NSWCA 398

New South Wales Court of Appeal

CITATION : Gatzias v. Middlehurst [2002] NSWCA 398 FILE NUMBER(S) : CA 41036/01 HEARING DATE(S) : 5 December 2002 JUDGMENT DATE : 5 December 2002

PARTIES : Con Gatzias - appellant Melissa Middlehurst - respondent JUDGMENT OF : Mason P at 45, 47; Heydon JA at 46; Hodgson JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 1920/00 FILE NUMBER(S) : LOWER COURT J.C. Gibson DCJ JUDICIAL OFFICER :

COUNSEL : Dr. A.S. Morrison SC with Mr. J. Drummond for appellant Mr. J.D. Hislop QC with Mr. N. Chen for respondent SOLICITORS : James Papas & Associates, Parramatta for appellant Henry Davis York, Sydney for respondent CATCHWORDS : TORT - Negligence - Appeal on damages - No question of principle. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41036/01 DC 1920/00

MASON P HEYDON JA HODGSON JA

Thursday 5 December 2002 GATZIAS V. MIDDLEHURST Judgment 1 HODGSON JA: : On 26 November 2001, in proceedings brought by the appellant Con Gatzias against the respondent Melissa Middlehurst for damages for injuries allegedly suffered in a motor vehicle accident, Gibson DCJ ordered that there be judgment for the defendant and that the plaintiff pay the defendant's costs. 2 The plaintiff appeals to this Court from those orders seeking, inter alia, a new trial of the proceedings. 3 I will begin by outlining the circumstances giving rise to the proceedings. 4 The plaintiff was born in 1962. He left school in December 1978 and commenced employment as an apprentice electrical fitter in February 1979. 5 On 21 November 1981 he was involved in the first of seven motor vehicle accidents that he has suffered. In that accident he suffered injury to his right brachial plexus. 6 In late 1983 he purchased an interest in a security company in which he then worked. On 2 April 1984 he was involved in a second motor vehicle accident, suffering an injury to his left knee. He was then off work for two weeks. 7 On 4 July 1984 he was involved in a third motor vehicle accident in which he received a fractured left patella, facial injuries and loss of teeth. 8 In late 1985 he sold his interest in the security company, and commenced working as a security guard with Wormald Security. 9 On 12 September 1986 he was involved in a fourth motor vehicle accident, in which he received an injury to this right knee. Apparently he was off work for about a week after that accident. 10 On 15 January 1988 he suffered injuries attempting to apprehend an intruder at St Peters. He suffered injury to his left knee, left leg and back. He was off work until September 1988, and his employment with Wormald was terminated in October 1988. 11 The plaintiff then commenced his own business as an investigator and process server. From 1990, this was conducted under the name Precision Mercantile Agency. 12 In 1990 he underwent an operation for excision of his L4/5 disc. On 26 May 1991 he suffered a laceration to his right knee in attempting to apprehend an intruder at Randwick. On 25 January 1992 he married his second wife. 13 On 2 April 1998 he was involved in the first of three rear end collisions. On that day he consulted his GP, Dr Yip, complaining of severe headache, right side neck pain and lower back pain, and of having experienced sudden pain down the right arm at the time of the accident. 14 On 19 April 1998 he was involved in the second of these three rear end collisions, this being the subject of these proceedings. He went to see Dr Yip on 30 April, complaining of increasing lower back pain radiating to the left leg, numbness and weakness of the right arm and a click of the neck when turning his head. 15 On 10 April 1999 he was involved in the third of the three rear end collisions. 16 On 17 March 2000 the plaintiff commenced proceedings in relation to these three rear end collisions. Proceedings No.1918 of 2000 were in relation to the accident on 2 April 1998, No.1919 of 2000 in relation to the accident of 10 April 1999, that is the third accident, and 1920 of 2000 in relation to the accident on 19 April 1998, that is the second accident, the subject of these proceedings. The particulars served in relation to these proceedings alleged substantially identical injuries, and identical disabilities, out of pocket expenses, wage loss, future medical and treatment expenses, home care services and loss of superannuation. 17 It appears that the plaintiff's business ceased to operate at a date which has been identified in some places as February 2000, and other places as January 2001. The plaintiff has been unemployed since then. 18 On 2 January 2001 terms of settlement were filed in proceedings No.1918 of 2000 and No.1919 of 2000. The settlement in the former case was for $75,000 plus costs, and in the latter case $45,000 plus costs. 19 The hearing of these proceedings went ahead on 31 May and 1 June 2001 and 20 and 21 September 2001, and judgment was given on 26 November 2001. There was no issue before the primary judge as to the defendant's negligence. The case was fought on the issue of causation of damage recoverable by the plaintiff. 20 The primary judge made various findings adverse to the credibility of the plaintiff, and ultimately found that the plaintiff had not proved non-economic loss passing the 15 per cent threshold under the Motor Accidents Act 1988, economic loss, loss based on any need for domestic assistance or loss associated with medical or other relevant expenses. In the result, the primary judge gave judgment for the defendant as I have indicated. 21 The appellant relies on the following grounds of appeal:- 1. Her Honour erred in finding that the motor vehicle accidents in which the Plaintiff suffered injury on 2 April, 1998 and 19 April, 1999 were more serious than the Plaintiffs accident on 10 April, 1999.