New South Wales Court of Appeal CITATION : Dybka v McKenzie [2002] NSWCA 171 FILE NUMBER(S) : CA 40676 of 2001 HEARING DATE(S) : 14/05/02 JUDGMENT DATE : 21 June 2002 Ela Dybka PARTIES : v Fiona McKenzie JUDGMENT OF : Meagher JA at 1; Sheller JA at 15; Pearlman AJA at 16 LOWER COURT JURISDICTION : District Court LOWER COURT DC 4992 of 1997 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : COUNSEL : Appellant: S Norton SC & E Welsh Respondent: J D Hislop QC & P Gormley SOLICITORS : Appellant: Brydens Law Office Respondent: Phillips Fox CATCHWORDS : Personal Injury - Motor Accidents Act - Fox v Wood - whether trial judge failed to take into consideration medical reports - assessment of damages - appeal dismissed with costs. CASES CITED: Fox v Wood (1981) 148 CLR 438 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40676 of 2001 DC 4992 of 1997 MEAGHER JA SHELLER JA PEARLMAN AJA Friday, 21 June 2002 ELA DYBKA v FIONA McKENZIE Facts The appellant, Miss Dybka, was involved in a motorcar accident, which allegedly triggered a "major psychiatric reaction", and at trial, was awarded $99,357.00 in her favour. On appeal, the Court was asked to determine whether Miss Dybka was entitled to more money. The appellant challenged (a) the failure of the trial judge to recognise that certain orthopaedic reports had been filed, and (b) the trial judge's assessment under the heads of damages. Held: Per Meagher JA (Sheller JA and Pearlman AJA agreeing) (i) The orthopaedic reports were not overlooked by her Honour, and in any event, did not advance the appellant's case very much. (ii) The amount of $10 000 awarded by the trial judge for non-economic loss, while absurdly generous, could not be disturbed. (iii) It was open to her Honour to award $33 857 for past-out-of-pocket expenses, although the amount was excessive, because she was unable to disentangle the actual from the pretended. (iv) Her Honour was justified in reducing the appellant's past wage loss after two years, since she had for a long time been able to work. (v) The appellant was entitled to $1 606 97 under Fox v Wood, but the verdict should not be disturbed as a result of her overpayment in items (ii) and (iii). Orders Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40676 of 2001 DC 4992 of 1997 MEAGHER JA SHELLER JA PEARLMAN AJA Friday, 21 June 2002 ELA DYBKA v FIONA McKENZIE Judgment 1 MEAGHER JA: This is an appeal by Miss Dybka who was the plaintiff in an action before Gibson DCJ, who awarded her a verdict of $99,357.00 for the injuries she allegedly suffered in a motor car accident. That accident inflicted on her no physical damage whatsoever, and very little damage of any sort. The sum of $99,357.00 was made up of the following integers: (a) Non-economic loss $10,000.00 (b) Out of pocket expenses $33,857.00 (c) Future out of pockets expenses $10,000.00 (d) Past Wage Loss $45,500.00 (e) Future Wage Loss nil (f) Future loss of Superannuation nil (g) Fox v Wood nil Now she has the gall to approach the Court for yet more money. Surprisingly, the defendant did not cross-appeal. 2 I turn first to the evidence of the defendant, Miss McKenzie. She said she was driving her motorcar on the way to her work at TNT and was about to make a right hand turn from Marion Street into Regent Street at Redfern. When she got to Gibbons Street (a one-way street with traffic left to right) she looked to the left and saw a break in the traffic. At this stage she was several feet short of the curb. She took her foot off the brake to put it onto the accelerator, and as she went to start the car she saw a person move right to left in front of her car. She braked immediately, but she hit Miss Dybka. She immediately stopped her car and saw Miss Dybka walk back to the curb, rubbing her upper left leg just above the knee. Miss McKenzie said to Miss Dybka "Are you all right, can I help you?". Miss Dybka did not reply. The two ladies exchanged details. Miss McKenzie was at the scene of the accident about five minutes and she was careful to watch Miss Dybka walk away down the street to her place of work. She observed that Miss Dybka was walking normally. There was no blood in evidence, no apparent evidence of any physical injury. Miss Dybka did not fall onto the bonnet of Miss McKenzie's car, nor did she fall onto the ground. 3 Her Honour believed Miss McKenzie's evidence in its entirety. Hence she came to the conclusion that there was no physical injury at all suffered by Miss Dybka; no fall, no blood, no head injury. 4 I give the version of Miss McKenzie, the defendant, first, before that of Miss Dybka, the plaintiff, for two reasons. The first is that her Honour, as I have stated, accepted Miss McKenzie's version of the accident and rejected any version from Miss Dybka. The second is that it is virtually impossible to work out what Miss Dybka's version of the accident is. As Miss Dybka trudged round an almost endless list of physicians, psychiatrists, psychologists and social workers her symptoms varied from time to time, as did her account of the accident. There is, I think, no need to explore the details. Suffice it to say she recounted injuries to her legs, to her back, to her neck, to her head, and to her nerves – and, in each case, injuries of a most severe kind. She described to her advisors how she was thrown over the bonnet of Miss McKenzie's car (on some versions) or onto the ground (on other versions). She persuaded some of her advisors that Miss McKenzie's car was travelling at up to 15 kph, although, on the facts as found by her Honour, it could not have been travelling at more than 1 or 2 kph. Eventually she abandoned all pretence at detail and took refuge in an assertion that she had no idea how the accident occurred, that she simply could not remember. 5 It is of some interest to note that the "I cannot remember anything" version sometimes appears at about the same time as, or after, the detailed version. Yet sometimes it occurs before the detailed versions. Until August 1996 her versions are always quite detailed, but in that month at St Vincent's Hospital the amnesiac version first appears. Yet, sixteen months later, in December 1997, she tells Dr Gronow that she was tossed over the bonnet and thrown to the ground. In a report dated 29 August 2000, a Dr Wingfield said, inter alia, "She remembered all events". In the witness box she decided to remember nothing. 6 It is also of interest to note another comment of Dr Wingfield's: "I note that the orthoptist at the Sydney Eye Hospital thought that she had some colour vision defect which she attributed to a head injury. I cannot understand why people keep insisting that Mrs (sic) Dybka had a head injury. She gave no history of a head injury, there was no concussion. Her head was not damaged at all in this accident. She got up off the road and proceeded to go to work." 7 Her Honour relates at some length the details of the reports of the various psychiatrists who saw Miss Dybka, the differing stories she told them (none of them true), and their inconsistent diagnoses, opinions and prognoses. There would seem to be little point in setting it all out in detail, because in each case the hapless psychiatrist was the victim of her mendacity. One of them, presumably in despair at discovering the truth, records that Miss Dybka is suffering from polypharmacy and iatrogenesis. In this regard, as a cross-check on her statements to her psychiatrists, her Honour placed great emphasis on certain video tapes of the lady which were shown to her (but which, alas, seem to have disappeared in the interval in between the hearing before her Honour and the hearing of the appeal). Her Honour described the situation as follows: "While I do not accept Dr Canaris on some other issues, I am of the view that these statements (scil. about the utility of video tapes) are of assistance in explaining to the court the puzzling circumstances in which the plaintiff, who suffered an accident which was probably alarming but which caused her little physical injury, now tells the Court that the accident has had such a devastating effect on her life that she is completely incapacitated, unable to work other than part-time or to lead a normal life and physically debilitated to a very marked degree. It helps me to resolve the fact that the plaintiff, who hobbled into a witness box like a frail old woman, was seen on video tape for eleven days over a three year period performing such energetic activities as power walking over the cliffs of Bondi for one and a half hours, performing house work and gardening, bending, lifting, carrying heavy shopping, leaping onto and off buses, running, and sitting comfortably for long periods while socialising." 8 For various reasons, her Honour rejected the evidence of the three or four of Miss Dybka's friends who were prepared to give testimony on her behalf. 9 She also found that the "plaintiff is fit to return to work and has been for some time". 10 Her Honour, further, found that Miss Dybka's psychiatric condition "is largely feigned". 11 However, she came to the conclusion that Miss Dybka, whilst suffering little or no physical injury, did suffer a "major psychiatric reaction". This is what motivated her Honour to enter a verdict of such apparent generosity. No psychiatric damage was claimed by her in any of her statements of claim. 12 Her Honour stated – and twice – towards the end of her judgment that Miss Dybka did not file any orthopaedic reports. Her counsel, Miss Norton SC, made much of this. It was truly a mistake, because two sets of such reports had been filed on her behalf. However, I do not think this matters much; first, because the contents of those reports do not advance her case very much; and secondly because her Honour must have had regard to them and not overlooked them, as earlier in her judgment – she had discussed them. 13 There remains only to deal seriatim with the submissions made as to each item of the damages challenged by Miss Dybka: (a) Non-economic loss. There was an initial complaint as to whether this was meant to be 10% or 20% of a most extreme case. It does not matter. Her Honour did decide to award Miss Dybka $10,000 for non-economic loss whether it was 10% or 20%. Her Honour treated it, as did Miss Norton SC, as a concession made by the defendant. However, a reading of the opening paragraphs of her Honour's judgment shows that it was nothing of the sort. The defendant's argument was that there should be an amount of "nil" found under this head; only as part of a fall-back position was $10,000 mentioned. That means, nonetheless, that although this figure is absurdly generous it cannot be disturbed. It would be a joke to increase it, and impossible to decrease it. (b) Past out-of-pockets. Her Honour did not find that $33,857 was a reasonable figure. With reason, she found it impossibly high, but she said she was unable to disentangle the actual from the pretended. (d) Past Wage Loss. Miss Norton submitted that there was nothing to justify her Honour's decision to cut short Miss Dybka's wage loss after two years. But in view of her Honour's conclusion that Miss Dybka had for a long time been able to work, there was every reason why she should. (g) Fox v Wood . Her Honour awarded Miss Dybka nil, but it is conceded that she should have awarded $1,606.97. In my view, however, this Court should not alter the amount of Miss Dybka's verdict, in view of her overpayment on items (a) and (b). 14 I think the appeal should be dismissed with costs. 15 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment of Meagher JA. For the reasons her Honour has given I agree that the appeal should be dismissed with costs. 16 PEARLMAN AJA: I agree with Meagher JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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