Bartrim v Ceissmann

[1999] NSWCA 379

CITATION:	Bartrim v Ceissmann [1999] NSWCA 379
FILE NUMBER(S):	CA 40696/99
HEARING DATE(S):	20/09/99
JUDGMENT DATE:	18 October 1999
PARTIES :	John Thomas Bartrim v Lynne Maree Ceissman
JUDGMENT OF:	Fitzgerald JA at 1; Davies AJA at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	678/90
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ

COUNSEL:	P Biggins (Appellant) R C Tonner (Respondent)
SOLICITORS:	Dominic David Stamfords (Appellant) Holman Webb (Respondent)
CATCHWORDS:	Damages for personal injury; whether sufficient allowance for general damages and for future economic loss; no point of principle.
ACTS CITED:	Social Security Act 1947 (Cwlth) ss27 and 28.
CASES CITED:	Re Panke and Director-General of Social Services (1981) 4 ALD 179.
DECISION:	Application for leave dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40696/98
DC 678/90

FITZGERALD JA
DAVIES AJA

Monday, 18 October 1999

John Thomas BARTRIM v Lynne Maree CEISSMAN

JUDGMENT

1   FITZGERALD JA: This is an application for leave to appeal. It was conceded by Mr Bartrim that leave is necessary. 2   I have read the reasons for judgment of Davies AJA, who has summarised the circumstances giving rise to this application. 3   As I understood Mr Bartrim’s complaints with respect to the trial judge’s judgment, they related principally to the amount which he was awarded for non-economic loss ($34,500) and economic loss ($5000). The trial judge also reduced the amount awarded for future medical expenses from the amount claimed ($38,437) to $35,000. 4   Mr Bartrim was aged 50 when he was injured on 9 October 1987 and 61 at the time of judgment on 14 August 1998. Prior to his injury, he had been diagnosed as epileptic and had had psychiatric problems, and had applied for an invalid pension. That application was subsequently granted retrospectively to the date of application. Since 1968, he had had a business selling electrical equipment but, according to his records, had earned only about $100 per week. 5   As is so often the case, Mr Bartrim’s action became complicated, to his disadvantage, by his attempt to obtain a large award. Evidence was given that his son was to have the electrical business, while Mr Bartrim engaged in gold mining, prospecting and gem cutting, which, it was suggested without significant evidence, would prove highly remunerative. 6   In determining Mr Bartrim’s economic loss, the trial judge was required to assess the amount which Mr Bartrim had lost between the accident and trial and his loss of earning capacity for the future. Perhaps because of his invalid pension, Mr Bartrim did not present his case at trial on the basis that, but for his accident, he could have continued to earn $100 per week from his electrical business. Rather, he chose to present his case on the footing that, but for the accident, all that he would have earned pre-trial or had the capacity to earn in the future was the amount which he might have gained from mining, prospecting and gem cutting. The trial judge assessed that as “close to nominal”. That was not surprising on the evidence. 7   Unless Mr Bartrim can demonstrate an error which justifies leave to appeal in respect of the award of $34,500 for non-economic loss, there is no basis for leave to appeal in respect of the award of $5000 for economic loss, or obviously, the small reduction in the amount awarded for future medical expenses. 8   The amount awarded to Mr Bartrim for non-economic loss was based on the trial judge’s assessment that the accident had increased Mr Bartrim’s pre-existing physical, psychological and psychiatric problems by 22% of a most severe case. 9   A particular complaint was made by Mr Bartrim of a remark by his Honour that a “large psychological component” in Mr Bartrim’s symptomatology “to a certain extent … may resolve once this court process is finished”. Although there was no express expert evidence to that effect, there was some evidentiary foundation for the trial judge’s inferences. I am unpersuaded that a grant of leave to appeal to challenge those finding is warranted. 10   That aside, Mr Bartrim argued that the amount awarded to him for non-economic loss is too low. While there is force in that submission, the discrepancy is insufficient to justify a grant of leave to appeal. 11   I agree with Davies AJA that the application for leave to appeal should be dismissed with costs. 12   DAVIES AJA: This is an application for leave to appeal from the judgment of a Judge of the District Court of New South Wales. His Honour awarded $88,614.16 by way of damages to the applicant, Mr John Bartrim, in respect of injuries and loss suffered as a result of the negligent driving of the opponent, Lynne Maree Ceissman. 13 Although numerous medical reports were tendered in evidence before the trial Judge, only one medical witness, Dr Gabrael, gave oral evidence. He was a general practitioner who had attended Mr Bartrim for many years, both before and after the accident. On his evidence, Mr Bartrim had been very fit prior to the accident. Other evidence adduced on behalf of Mr Bartrim tended to show that, after the accident, Mr Bartrim had suffered from both an exacerbation of underlying degenerative changes and a severe psychological illness. In this application, it was submitted that the award of damages was inadequate. 14 However, there were a number of factors tending to the contrary. One was that the claim as made in the Statement of Claim was limited to $100,000. The proceedings had commenced on 29 June 1990 and no application for amendment had been made. 15 Another was that Mr Bartrim gave evidence that, before the accident, he had applied to the Department of Social Security for an invalid pension and, subsequent to the accident, the pension had been granted retrospectively to the date of application. Section 28 of the Social Security Act 1947 (Cth) provided that an applicant may be granted an invalid pension if he is, inter alia, “permanently incapacitated for work”. Section 27 of the Act provided:

27. A person is permanently incapacitated for work for the purposes of this Division if:


(a) the degree of the person’s permanent incapacity for work is not less than 85%; and

(b) that permanent incapacity, or at least 50% of that permanent incapacity, is directly caused by a permanent physical or mental impairment of the person.

Paragraph (b) of the definition had been introduced after the decision in Re Panke and Director-General of Social Services (1981) 4 ALD 179, in which it had been held that employment opportunities as well as the physical and mental incapacity of the disabled person must be taken into account in determining whether a person was permanently incapacitated for work. Paragraph (b) introduced the additional and limiting requirement that the permanent physical or mental impairment contribute at least 50 per cent to the incapacity for work. As the test of “permanent incapacity for work” was not an easy one to satisfy, it was incumbent upon Mr Bartrim to explain to the trial Judge why he had considered himself to be incapacitated to that extent prior to the accident and what was the nature of the physical and mental incapacity on which he relied. Neither his evidence nor that of Dr Gabrael explained these matters.

16   Another matter tending against the grant of substantial damages was that Mr Bartrim gave evidence that, at the time of the accident, he had a small business dealing in television sets and stereos. According to his income tax return, his net income for the business was only about $100 per week or a little over $5,000 annually. Mr Bartrim gave evidence that, when he applied for the invalid pension, he had it in mind that his relatives would take over this business in trust for his son and that he himself would engage in goldmining, prospecting and gem cutting. Mr Bartrim gave evidence of gem stones he had collected. The trial Judge took the view that Mr Bartrim’s income from prospecting was not likely to be significant. His Honour did not mention the matter, but the invalid pension was income-tested. Clearly, the trial Judge was entitled to regard Mr Bartrim’s proposed gem activities as being in the nature of a hobby, a post-retirement activity, rather than a significant income earning enterprise. 17   Another matter which affected Mr Bartrim’s claim was that the reports given by doctors who had treated him showed that, prior to the accident, he had had a significant psychiatric problem and had been treated for this over a number of years. Moreover, there was evidence in the reports of the medical experts relied upon by the opponent that the physical or neurological injuries resulting from the accident may have been minimal. 18   I have set out these factors without drawing any conclusions of fact for myself. It seems to me that the case raises no point of principle and that there is no sound basis upon which an appellate court could arrive at a conclusion different from that of the trial Judge. The trial Judge had a very difficult task, having regard to the inconsistencies and ambiguities in the evidence before him. His Honour concluded that there was a large psychological component in Mr Bartrim’s condition and that this might resolve once the court process was finished. In my opinion, that conclusion was open to his Honour, as was his Honour’s conclusion as to Mr Bartrim’s income earning capacity. Having regard to Mr Bartrim’s application for an invalid pension prior to the accident, it would not be feasible for an appellate court to conclude that Mr Bartrim suffered a substantial diminution in his income earning capacity which was not taken into account in the award made by the trial Judge. 19   I would dismiss the application for leave and would order that the applicant pay the costs of the proceedings.