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. 2. Her Honour erred in determining that the Plaintiffs omission in serving any reports prepared by Dr Cummine were because the reports were adverse to the Plaintiffs position. 3. Her Honour erred in finding that the Plaintiff had provided false information to the Australian Taxation Office or sought to rely on financial information other than that provided to the Australian Taxation Office. 4. Her Honour erred in not awarding damages to the Plaintiff for past economic loss and out-of-pocket expenses after finding such causes and period of incapacity. 22 No argument was advanced in support of ground 1. As argued the appeal has focused on four areas. The first is the rejection of the claim for economic loss, grounds 3 and 4. Secondly, one particular aspect of the treatment of medical evidence, ground 2. Thirdly, the rejection of the claim for expenses, ground 4. Fourthly, the question of costs. 23 On the first matter, Dr Morrison SC for the appellant submitted that the primary judge had found that the appellant sustained "soft tissue injury which resolved approximately three to four months after the accident", yet despite that made no award for economic loss, stating that there was "no evidence before me that the plaintiff had any time off work." 24 Dr Morrison submitted that this involved error in a number of respects. Firstly, there had been evidence by the appellant that he had time off work and had to employ subcontractors. Secondly, there was evidence by his wife to the effect that he had some time off work. Thirdly, there was an erroneous statement by the primary judge to the effect that as a self-employer the plaintiff may have paid himself his usual salary. Fourthly, there was further evidence supporting economic loss in the evidence of reduced receipts from the business and increased expenses on subcontractors. Accordingly, Dr Morrison submitted, there should have been some award at least for economic loss. 25 Dr Morrison submitted that there was further error by the primary judge in a comment that a litigant cannot provide one set of figures to the ATO and another to the Court, and there was error in the primary judge relying on this comment in rejecting a report of the appellant's accounting expert and in using this as having some impact on the assessment of the appellant's credibility. 26 Dr Morrison also pointed to an additional associated error by the primary judge, in asserting that the appellant's income from the years of the accident and subsequently were higher than the income before the accident. 27 Dr Morrison submitted that these errors vitiated the primary judge's adverse findings on the credibility of the appellant and required that there be a new trial. 28 Next, Dr Morrison submitted that the primary judge misused the failure of the appellant to tender reports of Dr Cummine, a treating doctor. He submitted that, although it was open to the primary judge to draw the inference that these reports would not have positively assisted the appellant's case, the primary judge went further, saying that the reports should have been served if they corroborated other medical evidence relied on by the appellant, that the appellant had sought to withhold this evidence from the Court, and that the views of Dr Cummine were adverse to the appellant. 29 Dr Morrison submitted that these errors vitiated the primary judge's assessment of the medical evidence, and this too either on its own or in combination with the first series of errors required the granting of a new trial. 30 Next, Dr Morrison submitted that the primary judge was in error in finding that the appellant had not proved the loss of out-of-pocket expenses, on the basis that relevant accounts had been paid by the insurer in relation to 2 April 1998 accident and so cannot be sought twice. He submitted that the claim in relation to that accident had been settled for a single lump sum and the Health Insurance Commission had insisted, as it was entitled to, that certain Medicare payments be reimbursed from that judgment. The result of this was that those expenses were paid by the appellant, and Dr Morrison submitted that it was not a reasonable inference that the lump sum settlement in fact included one hundred per cent recovery for all these bills. The primary judge should have addressed this question, and the proper conclusion from the evidence was that some at least of the out of pockets were caused by this accident and recoverable in relation to it. 31 As I mentioned, Dr Morrison submitted that a new trial was justified. In the alternative, he submitted that there should be some award at least for economic loss and out-of-pocket expenses, in relation to which there was no threshold under the Motor Accidents Act. The result of this, he submitted, would be a different costs order from that made at first instance. At worst there should be an order that each party pay its own costs. 32 In my opinion, the appellant's submissions must be considered in the context of the findings of the primary judge in relation to the appellant's credibility. The appellant gave evidence that the impact in the 19 April accident was more severe than that of 2 April accident, that he was flung forward and had immediate startling pain in all regions of his body, and that he complained of his pain or injury to the respondent; and when asked why he did not go to the doctor on that day, he answered that it was because he was not sure that the doctor was open on that day at the time of the incident. 33 However, the accident in fact caused no damage to the appellant's car, and the respondent gave evidence that she was travelling only a few kilometers per hour, and that the appellant spoke to her calmly and exhibited no sign and made no complaint of pain or injury immediately after the accident. 34 The primary judge found the appellant's credit was damaged by concessions he made about mowing the lawn, driving his car without difficulty and hitching his trailer to his car. The primary judge accepted the respondent's evidence, and found that the appellant had essentially re-invented his case after settling the two other rear end collision matters, exaggerating the importance of this accident and subsequent problems to the doctors. 35 The primary judge made no express finding to the effect that she could not rely to any significant extent on the appellant's evidence where uncorroborated, but such a view was clearly implied in the judgment and, subject to one matter to which I will come, was amply justified. 36 The matter to which I refer is the criticism made by Dr Morrison in relation to the comment concerning the ATO figures. It would appear that the primary judge's view on this played some part in her assessment of the appellant's credibility, and I think it fair to say also that this was not a case where there was overt reliance on figures different from those in the appellant's tax returns. Furthermore, it appears that the primary judge was in error in asserting that the appellant's income of the year of the accident and subsequently was higher than before the accident. 37 On the other hand, the appellant's claim for economic loss was at rates substantially in excess of his previous earnings, with flimsy support for this. Also, a quarterly breakup of the income of the business and of expenses on subcontractors indicated that there was a fall off in the business's income in the year ended June 1968 substantially before the accident, and that the increased expenditure on subcontractors in this year was almost exclusively in the period before the accident. 38 In those circumstances, comparison of the financial figures including those supplied to the ATO did to some extent reflect adversely on the appellant's credibility; and to the extent that the primary judge overstated this case, this was in my view a minor matter in the context of all the other matters taken into account by the primary judge in reaching her adverse view of the appellant's credibility. Certainly in my view, it is insufficient to make out a case of substantial wrong or miscarriage such as could justify a new trial. 39 The other matter principally relied on as suggesting a ground for a new trial was the matter of comments made about Dr Cummine's reports. The appellant accepted that there was an inference open that these reports would not have supported the appellant's case. It is true that the primary judge's statements went beyond this, but in my view those statements do not show that the primary judge in reaching her conclusions on the medical evidence gave substantially more significance to the failure to serve and rely on Dr Cummine's reports than was justified by the Jones v Dunkel principle. In my opinion, when one has regard to the very careful consideration of the medical evidence given by the primary judge, any error in the statement of the significance of the failure to serve and rely on Dr Cummine's points was insignificant in the reasoning to the final conclusion, in which the primary judge generally preferred the evidence of the respondent's doctors, among other reasons on the basis of inaccurate histories given by the appellant to his own doctors. 40 Turning to the matter of economic loss, I think the statement made by the primary judge about the appellant as self-employer was incorrect, and I think it was not strictly correct to say that there was no evidence that the appellant had any time off work. However, the primary judge had previously rejected the appellant's evidence that he needed to expend more on subcontractors, and in the light of the primary judge's view as to the appellant's credibility and the quarterly breakup of figures to which I have referred, that rejection was plainly justified. In my opinion the primary judge also implicitly rejected the appellant's evidence about time off work; and in my opinion the evidence of the appellant's wife did not give any real support to any finding of time off work productive of economic loss. 41 In relation to out-of-pocket expenses, I think that the payment of relevant medical expenses out of the verdict in relation to the 2 April accident is not conclusive on this matter as against the appellant, so to the extent that the primary judge proceeded on that basis there was error. However, the onus was on the appellant to prove out-of-pocket expenses caused by this accident and not recovered otherwise. The appellant did not establish directly that any of his out-of-pocket expenses were not included in the judgment in relation to the other case, although it may be that an inference to that effect was open. On the other hand, the evidence of Dr Yip suggested that even the particular expense most closely related to the accident in this case, namely a consultation of 30 April, was itself more due to the 2 April accident than that of 19 April. 42 In all these circumstances, I am not satisfied that there was error in the result in the finding that no out-of-pocket expenses arising from this accident had been proved. 43 For those reasons, in my opinion the appeal should be dismissed with costs. I would add that, even if the appellant had established that a very small figure should have been found in relation to economic loss and out-of-pocket expenses, I am by no means satisfied that that would have resulted in a different order as to the costs at first instance. If a plaintiff in proceedings such this claims many hundred of thousand of dollars of damages, and after a trial lasting some days is found to have grossly exaggerated his claim and succeeds only as to a nominal amount, it may well be a correct exercise of discretion to award costs to the defendant. 44 In any event, for the reasons I have given, in my opinion the appeal should be dismissed with costs. 45 MASON P: I agree. 46 HEYDON JA: I agree. 47 MASON P: The appeal is 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.