Kleiner v Ngawaka [2005] NSWCA 389

New South Wales Court of Appeal

CITATION: Kleiner v Ngawaka [2005] NSWCA 389

HEARING DATE(S): 21 October 2005

JUDGMENT DATE: 15 November 2005

JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Basten JA at 3

DECISION: (1) Application by Claimant for leave to appeal from the judgment and orders of the District Court of 15 October 2004 refused, with no order as to costs; (2) Application by Opponents for leave to appeal from the judgment and orders of the District Court of 15 October 2004 be refused, with no order as to costs

CATCHWORDS: Negligence - whether trial judge erred in assessment of damages - no issue of principle

LEGISLATION CITED: Motor Accidents Act 1998 (NSW)

Gabrielle Kleiner - Claimant PARTIES: Parore Wiremu Ngawaka - First Opponent Toll Transport Pty Ltd - Second Opponent

FILE NUMBER(S): CA 40979/04

R. McKeand - Claimant COUNSEL: C.E. Adamson SC/J.J. Ryan - Opponents

G.H. Healey & Co - Claimant SOLICITORS: Abbott Tout - Opponents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6328/2002

LOWER COURT JUDICIAL OFFICER: Murray DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40979/04

GILES JA IPP JA BASTEN JA

15 November 2005 GABRIELLE KLEINER v PARORE WIREMU NGAWAKA & ANOR Judgment 1 GILES JA: I agree with Basten JA. 2 IPP JA: I agree with Basten JA. 3 BASTEN JA: The Claimant was injured in a motor accident on 2 August 1999. Liability was admitted by the driver of the other vehicle and the trial was limited to an assessment of damages. The trial judge awarded an amount of $41,001.97. The Claimant (the plaintiff in the proceedings below) sought leave to appeal from this award; the Opponents sought leave to cross-appeal. 4 Assessment of the Claimant's non-economic loss required application of s 79A of the Motor Accidents Act 1998 (NSW). The first step was to satisfy the Court that the Claimant's "ability to lead a normal life" had been "significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident": s 79A(3). Absent satisfaction of that provision, the Claimant could not receive damages for non-economic loss. The trial judge held that she had been so impaired and further held that her non-economic loss was at least 15% of a most extreme case: s 79A(4). His Honour assessed the loss at 25% of such a case which, according to the statutory table, as applicable at the relevant time, gave rise to a figure of $22,000. 5 Out-of-pocket expenses had been agreed prior to trial at $12,197.20. His Honour allowed an amount of $2,000 for future medication. 6 There remained the question of economic loss. Some allowance for past economic loss was conceded, and his Honour awarded a global figure of $5,000. In relation to future economic loss, the Claimant did not satisfy him that there was at least a 25% likelihood that she would sustain future economic loss: see s 70A. 7 Assessment of damages in this case turned to a significant extent on the evidence given by the Claimant and, hence, her credibility. His Honour found that her credibility was diminished in two ways. First, he held that she had given a misleading impression of her ability, since the accident, to engage in physical activities which she had enjoyed prior to the accident, the somewhat bleak picture which she had painted in her evidence-in-chief being improved by reluctant concessions made under cross-examination. Secondly, she acknowledged that she had concocted and forged a reference for employment applications, since the accident. 8 Her challenge in this Court had two limbs. First, she challenged the findings with respect to her credibility in relation to her own evidence of her activities, largely on the basis that, far from being reluctant concessions in cross-examination, she had fairly acknowledged the truth in her evidence-in-chief, although further detail was elicited in cross-examination. Secondly, she challenged the manner in which findings with respect to her credibility had been used by the trial judge at the expense of independent evidence from her witnesses and from her doctors. 9 The key passage in the judgment read as follows: "Where this leaves the plaintiff's credit is a matter on which I have agonised. It seems to me that one cannot rely on the plaintiff's evidence. One cannot rely on what she has told the doctors. One cannot rely on her evidence when she details her complaints of pain. However, it is clear that the plaintiff suffered some injury and where one draws the line is the difficult task. If one goes to the defendant's medical evidence basically one does not get much assistance, or indeed with any of the medical evidence, because of the untruthfulness of the plaintiff about her activities." 10 This finding gives some support to the Opponent's case that no award should have been made on account of non-economic loss, on his findings as to credit. 11 There are respects in which the challenge by the Claimant to his Honour's reasoning carries weight. For example, his Honour may have overstated the extent to which concessions were made only in cross-examination. Similarly, it was said she "prevaricated" about where a horse-riding event took place, although the fact of it taking place was common ground and another witness for the Claimant identified where it occurred. Further, although the forged employment reference was a foolish and highly irresponsible act, she admitted in her evidence that it was a concoction and the reason for describing that admission as "the most damning piece of evidence" is unclear. Nevertheless, the problem for the Claimant is that even accepting her criticisms of the trial judge's reasoning, a fair reading of her evidence as a whole does not demonstrate that his Honour's ultimate award was unjustifiably low. 12 Nor does it appear that his Honour entirely disregarded the medical evidence. Rather, his concern related to so much of that evidence as depended upon the subjective description of her physical state, provided by the Claimant to the doctors. Nor can it be said that his Honour disregarded the evidence of the Claimant's witnesses. The finding that her non-economic loss was 25% of a most extreme case indicates that his Honour accepted that she suffered significant pain and loss of amenities of life. The quantification of that assessment at $22,000 resulted from the application of the statutory formula. 13 The Opponent's case is the obverse of the same coin. Despite discounting the Plaintiff's evidence, the trial judge concluded: "I think that for a combination of reasons, partly orthopaedic and partly psychological, the plaintiff has been significantly impaired for a continuous period in excess of 12 months. Indeed I think the plaintiff is still suffering some disability, both in regard to the neck and back and her psychological state, but that the degree of that disability is moderate." 14 The Opponent supported that contention on the basis that, in a respect not relied upon by the trial judge, the Claimant at one point in her evidence made a somewhat dramatic assertion that, in the period of some six weeks following the accident, she needed assistance even with showering. In her cross-examination, she conceded that, during the same period, she went body surfing. In short, there was evidence to support the Opponent's assertions that his Honour was over-generous in his assessment of the Claimant's loss and injury. 15 At the end of the day, both challenges complain about apparent inconsistencies and inadequacies in the reasons provided by the trial judge. However, assessment of damages involves matters of evaluative judgment based on evidence, especially in relation to non-economic loss, which tends to be subjective. An analysis of the evidence, and its weaknesses or strengths, does not rationally lead to a particular mathematical conclusion, but only to a permissible range of figures. This case involves such an assessment and no more: no matter of principle is raised. 16 Further, given the significance of the credibility findings, it would not be possible for this Court to substitute its assessment of the plaintiff's pain and suffering and disability for that of the trial judge. Even if an error had been demonstrated in the conclusions of the trial judge, it would have been necessary to refer the matter back for re-hearing, an unattractive result, as all parties acknowledged, in a case of this magnitude. 17 In any event, there being no issue of principle, nor a sufficient likelihood that a different result would be achieved on a re-hearing, leave to appeal should be refused. 18 There remains the question of the costs of the appeal. There being applications for leave both to appeal and to cross-appeal, each side has been unsuccessful. The cross-appeal was not merely defensive, but was pursued in its own right. In the circumstances, there should be no order as to costs and each party should be left to bear its own costs. 19 Accordingly, I would propose the following orders: