Chan v Heak

[2011] NSWCA 420

Court of Appeal

New South Wales

Case Title:	Chan v Heak
Medium Neutral Citation:	[2011] NSWCA 420
Hearing Date(s):	3 November 2011
Decision Date:	21 December 2011
Jurisdiction:
Before:	Giles JA, McColl JA, Handley AJA
Decision:	(1) Appeal allowed. (2) Judgment of the District Court set aside; (3) In lieu thereof substitute judgment for the appellant for $206,565 and costs with effect from 24 August 2010; (4) Respondent to pay one-third of the appellant's cost of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DAMAGES - motor accident - future economic loss - no question of principle
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Cheyserey Rotha Chan - Appellant Heng Heak - Respondent
Representation
- Counsel:	D E Baran - Appellant G J Bellew SC with N Ghabar - Respondent
- Solicitors:	David Hooper Solicitors - Appellant Dibbs Abbott Stillman - Respondent
File number(s):	2010/312500
Decision Under Appeal
- Court / Tribunal:
- Before:	Garling DCJ
- Date of Decision:	24 August 2010
- Citation:
- Court File Number(s)	2008/318587
Publication Restriction:

JUDGMENT

1. GILES JA: I agree with Handley AJA.

2. McColl JA: I agree with Handley AJA.

3. HANDLEY AJA : This is an appeal by the plaintiff from the assessment by Garling DCJ of his damages for injuries suffered in a motor vehicle accident in the early hours of 1 May 2006. On 24 August 2010 his Honour gave judgment for $157,380 being 60% of his damages after deducting 40% for his contributory negligence.

4. The appellant challenged the deduction for contributory negligence, the Judge's failure to award damages for the cost of future care, and the awards for past and future economic loss.

5. The appellant was a passenger in a car being driven by the respondent at 1.30 a.m. on 1 May when it swerved to avoid another car, left the road, and collided with a power pole (blue 2/295). He suffered significant injuries but his degree of permanent impairment did not exceed 10% and, under s 131 of the Motor Accidents Compensation Act 1999 (the Act) he was not entitled to damages for non-economic loss.

6. The Judge assessed his damages, before the deduction for contributory negligence, at $262,300 which included $15,000 for past economic loss from 30 April 2009 to the date of trial, and $75,000 "as a buffer" for the future. There were consequential awards for loss of superannuation. There was no claim for the cost of past care, and the Judge rejected the claim for future care.

   Contributory negligence

7. The deduction of 40% for the appellant's contributory negligence was based on s 138(2)(a) of the Act which provided:

   "(2) A finding of contributory negligence must be made in the following cases:

   (a) ...

   (b) where:

   (i) the injured person ... was, at the time of the motor accident, a voluntary passenger in or on the motor vehicle, and

   (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol ... and the injured person ... was aware, or ought to have been aware, of the impairment,

   unless, in the circumstances of the case, the injured person ... could not reasonably be expected to have declined to become a passenger in or on the motor vehicle."

8. The parties had been in each other's company since about 5 p.m. the day before. The respondent collected the appellant from his home and they drove to Minto where they purchased beer, some of which was consumed. They then went to Liverpool Station and after that to the nightclub at The Kookaburra Hotel at Canley Vale. They were there from about 7:15 p.m. to 12:30 am playing poker machines, eating, drinking beer and the appellant also danced.

9. The appellant had money but had lost his licence whereas the respondent had his licence but no money. The appellant paid for the respondent's drinks. They left the hotel at 12:30 and got into the respondent's car, but stayed there for 30 minutes talking and smoking to enable the respondent to "sober up". They drove off at about 1 a.m. The accident occurred 30 minutes later.

10. Following their admission to Liverpool Hospital blood samples were taken from each and analysed. The sample from the appellant at 2:20 a.m. gave a blood alcohol reading of .092 (blue 4/652), that taken from the respondent at 2.28 a.m. gave a reading of .197 (blue 4/653). Professor Starmer considered that the appellant's blood alcohol concentration at the time of the accident was probably .105 (blue 4/658) and the respondent's .212 (blue 4/654). He inferred that the respondent had consumed the equivalent of almost 9 schooners of full strength beer between 8 p.m. and 12:30 a.m. (blue 4/655).

11. The Judge accepted (red 15) evidence from Professor Starmer (blue 4/657) that "it is likely the defendant would have exhibited overt signs of his intoxication, which would have been apparent to an untrained observer" (red 15).

12. Mr Baran for the appellant did not challenge the finding of contributory negligence but submitted that the 40% discount was excessive and unjust. In his submission, adopting that made by his predecessor below, the appropriate discount was 25%. The Judge found that the appellant who had paid for the drinks "knew exactly how much the defendant had consumed". Because they stayed in the car for half an hour before the respondent drove away the appellant "knew there was a problem". The appellant did not suggest that they should wait longer in the car park and the Judge found that he could have returned home by other means.

13. Mr Baran was unable to identify any error of fact or law in the Judge's reasoning; his submission was simply that the deduction was manifestly excessive. This is a matter of impression and in our view the deduction was within the range open to the Judge on the evidence. Mr Bellew SC for the respondent was not required to address on this issue.

    Past economic loss

14. The appellant has not worked or attempted to work since the accident. The Judge assessed his pre-injury earnings in 2 jobs at $597 per week (red 26), and awarded damages at this rate for the first three years after the accident. He assessed damages for the period from 30 April 2009 to the trial on a different basis.

15. The appellant had been given certificates by his treating doctors for the period up to 30 April 2009 which certified him as unfit for work. The last certificate in evidence was given on 16 March 2009. The Judge reviewed the medical evidence in report form which contained strongly divergent views about the appellant's capacity for work and recorded his assessment of the appellant who was in the witness box over two days.

16. The Judge found that there was "some loss of earning capacity" and assessed it as being somewhere in the vicinity of $200 a week and awarded a "buffer" of $15,000 for this period. Mr Baran challenged the award of a buffer for the past and submitted that the Judge should have found, and this Court should now find, that the appellant was totally incapacitated.

17. The award of "a buffer" for the past was indeed inappropriate. The facts were known or knowable, and the Judge should have assessed the proved loss. However there is nothing in the point because the buffer exceeded a loss of $200 per week for that period.

18. Mr Baran criticised the Judge's finding of a loss of only $200 per week since 30 April 2009 because it was inconsistent with the plaintiff's medical evidence that he was totally incapacitated. However, as previously mentioned, there was a substantial body of medical evidence to the contrary.

19. The Judge summarised both bodies of evidence. Mr Benjamin, a psychologist qualified for the appellant was the only expert who gave oral evidence. He took a very pessimistic view of the plaintiff which the Judge said (red 26) "does not coincide with the man I saw in the witness box". The Judge also rejected the opinion of Dr Klug, qualified for the appellant, which he said was "totally contrary to what I saw of the plaintiff in this Court" (red 27).

20. Mr Baran submitted that the Judge made a medical diagnosis based on his observations of the appellant and exceeded his judicial function. I cannot agree. The Judge was faced with evidence from doctors who, as he said, had totally conflicting opinions. He saw and heard the plaintiff in the witness box over two days. His observations enabled him to decide that the appellant was not then "chronically and severely dysfunctional" as Dr Klug had recorded. There was no error. The Judge was entitled to act as he did.

    Future economic loss

21. The Judge allowed a buffer of $75,000 for this head of damage for a working life of another 30 to 35 years. He made no finding that the appellant's physical capacity for work would improve or that he could and would obtain any particular type of paid work in the future.

22. In short the Judge gave no reasons for assessing the appellant's loss for the future on a different basis from his assessment for the period immediately before the trial. Mr Bellew was unable to identify any evidence which supported a change in the basis of assessment for the future. The Court must therefore intervene and reassess this part of the appellant's loss on the basis adopted for the period immediately before the trial.

23. A continuing net loss of $200 per week for 37 years, with a multiplier of 875.6, after the discount for vicissitudes of 15%, produces an award of $148,852 which should be substituted for the buffer of $75,000 allowed by the Judge. The corresponding figure for loss of future superannuation is $16,373 instead of $8,250.

    Future care

24. The Judge rejected this claim finding that "there is no real evidence before me of what care he needs in the future, and there is no evidence that he would have paid care ... I do not have evidence which I would accept which would allow me to award him anything" (red 28). The Judge found that the appellant "can do things" and can look after himself although he was not as good as he was before. There was no claim for past care.

25. The Judge's reasons were largely in the form of conclusions, but Mr Bellew demonstrated that they were amply supported by the evidence.

26. There was no oral evidence from the appellant which identified the household activities which were beyond his capacity. His Centrelink form (blue 4/634) dated 31 October 2006 stated that he was living by himself in the garage on his property doing his own shopping (blue 4/641), cooking (blue 4/642), washing (blue 4/637), and cleaning (blue 4/642). The appellant confirmed much of this in his oral evidence when he said that he did his own shopping, cooking and washing (black 63-4, 66).

27. The appellant called four lay witnesses on this issue. Mr Um, Ms Mackenzie, Ms Kor, and the appellant's father Mr Cheng. However, as Mr Bellew submitted, before the accident none of these witnesses had lived in the same premises in Australia as the appellant. Ms Mackenzie had had the appellant as her house guest since the accident when he slept over at her home from time to time for two or three days and sometimes for a week (black 91). Since the accident she had not visited him where he lived.

28. Ms Kor met the appellant socially four or five times before the accident (black 96, 97). She had seen him may be twice a month since (black 98), but they had not lived under the same roof (black 98) and she had not visited him where he lived. The appellant's father, who came from Cambodia to give evidence, had little contact with the appellant after he came to Australia.

29. As Mr Bellew said the high point in the lay evidence was that given by Ms Mackenzie who said that the appellant sometimes forgot to flush the toilet or close the door and on one occasion he left the gas on on the stove (black 89).

30. The appellant had coped by himself for almost four years since he and his wife separated after the accident. In these circumstances the evidence given by Ms Mackenzie of his occasional lapses could not support his claim for $104,622 for three hours' care a week for his life expectancy. Dr Davis, qualified for the appellant, said in his report of 2 August 2007 that the appellant should have paid domestic assistance for 7 hours a week (blue 1/74) and he confirmed this in his report of 10 May 2010 (blue 1/80).

31. Here again there was contrary evidence from doctors qualified for the respondent. Dr Slezak on 9 October 2007 thought that the appellant did not require any handyman or home maintenance assistance (blue 4/547). Professor Nade, an orthopaedic surgeon, reporting on 20 November 2007 said that the appellant did not require domestic or home handyman assistance (blue 4/559). Dr Haik reported on 15 April 2008 that, from a psychiatric perspective, no supervisory or attendant care was required (blue 4/.572).

32. The Judge accepted the respondent's medical evidence generally in preference to that given by the appellant's experts, and this finding must include their evidence about the appellant's need for care. The appeal on this issue fails.

    Conclusion

33. The appeal therefore succeeds on the future economic loss issue, but otherwise fails. The oral submissions on that issue took a fraction of the hearing time. The transcript dealt with this issue on p 18 (appellant), and pp 33-4 (respondent). The appellant's argument was based on the Judge's findings for the period immediately before the trial. An appeal confined to that issue would have been very short, and may never have come to a hearing. In these circumstances the appropriate order is that the respondent pay one-third of the appellant's cost of the appeal.

34. The appellant's damages must be increased to $344,275, 60% of which is $206,565. Since this amount substantially exceeds the respondent's offer of compromise of $180,000 made before the trial the orders below must be set aside.

35. The following orders should be made:

    (1) Appeal allowed.

    (2) Judgment of the District Court set aside;

    (3) In lieu thereof substitute judgment for the appellant for $206,565 and costs with effect from 24 August 2010;

    (4) Respondent to pay one-third of the appellant's cost of the appeal.

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