City of Brimbank v Halilovic
[2000] VSCA 12
•10 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 5346 of 1999
| CITY OF BRIMBANK |
| Appellant |
| v |
| DZEMAL HALILOVIC |
| Respondent |
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JUDGES: | WINNEKE, P., BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2000 | |
DATE OF JUDGMENT: | 10 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 12 | |
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Damages – Assessment – Whether post-traumatic stress disorder caused by motor vehicle accident – Relevance of pre-existing psychiatric condition – Calculation of future economic loss – Cross-appeal against judge’s finding of sixty per cent contributory negligence.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. R.P. Gorton, Q.C. | Phillips Fox |
| For the Respondent | Mr. J.B. Bingeman, Q.C. And Mr. M.J. Ruddle | Gill Kane & Brophy |
WINNEKE, P.:
As long ago as October 1982 the respondent, Dzemal Halilovic, was involved in a motor vehicle accident when a car which he was driving left the road surface of Roberts Road, Airport West, mounted the kerb, crossed the footpath and plunged some six metres into Steele's Creek. Shortly before the accident occurred the respondent had driven into the intersection of Parer Road and Roberts Road in the course of making a right-hand turn from Parer Road into Roberts Road. As a result of the accident, the respondent was injured.
The appellant City of Brimbank (or its predecessor) was the road construction authority which had been responsible for the design and construction of the intersection in 1971. The respondent's claim against the City was that it was negligent in designing and constructing the intersection because, inter alia, it had omitted to erect any or any sufficient barriers to prevent vehicles which had left the road surface from entering the creek which, so it was claimed, was a foreseeable risk because of the creek's proximity to the intersection.
Although the respondent's claim was issued in April 1986, it did not come on for hearing in the County Court until February 1999 when it was brought on for determination before a judge sitting alone. It would seem that this exceedingly long delay in presenting the claim was in no way attributable to the fault of the appellant. The respondent's evidence at trial was that he had been driving south along Parer Road and had stopped at a "give way" sign at the intersection with Roberts Road. He had then commenced to make a right-hand turn to travel west in Roberts Road when he noticed two objects in the path of his vehicle, one of which was steel with jagged and sharp edges. He said he had not seen the objects until they were only some two to three metres from the front of the car; and had swung his vehicle to the left to ensure that his tyres would not contact the sharp steel piece. In doing so the near-side wheels of his car - which was travelling at 15-20 kilometres per hour - struck the kerb causing him to lose control of the vehicle which ran across the footpath and fell into the creek.
There was expert evidence presented to the learned judge as to the adequacy of the design and construction of the intersection. In particular it was the opinion of the expert called by the respondent that the sharpness of the turn into the intersection and its physical contours posed a foreseeable risk that cars entering the intersection might lose control and run off the road into the creek; and that in those circumstances prudent engineering required, at the very least, some form of barrier to arrest their progress. In fact, so the evidence indicated, a steel barricade had been erected early in 1983.
His Honour concluded that the appellant was negligent and that its negligence was a cause of the injuries and loss suffered by the respondent when his car plunged into the creek. That finding is no longer in contention, the appellant's counsel having indicated to the Court at the outset of the appeal that grounds 5 to 8 (inclusive) set out in the notice of appeal were abandoned and not to be pursued. These were the grounds which had challenged his Honour's findings on liability.
Although his Honour accepted the respondent's evidence that there were objects on the road which he had sought to avoid, he nonetheless found that the respondent had failed to exercise reasonable care for his own safety by failing to keep a proper look-out; a failure which resulted in him not seeing the offending objects until his car was only some two to three metres from them. His Honour apportioned blame for the accident as to 60% against the respondent and as to 40% against the appellant, thus reducing the damages recoverable by the respondent by 60%.
The considerable period of time which had elapsed between the accident and the trial, together with the pre-existing history of the respondent and its effect upon his credibility, made the task of assessment of damages a difficult one. The respondent was born in 1947 and was 35 years old at the time of the accident and 52 years old at the time of the trial. His Honour found that he was suffering from a long-standing psychiatric disorder which preceded the accident. This disorder, so his Honour concluded, affected his mental processes and, in part, influenced the many contradictory statements and answers made by the respondent to medical advisers and the court. It would seem that, although the physical injuries which he suffered in the accident were relatively minor, comprising soft tissue injuries to the neck, back and shoulder, the consequences of those injuries to the respondent were more serious due to the underlying functional disability from which he suffered. Following the accident, he had ceased work as a truck owner/driver for some two years. When he resumed his occupation in late 1984 he claimed to have done so with increasing pain and limitation of movement until 1991 when he was forced to give up all forms of employment. His Honour accepted, as did the appellant, that since 1991 the respondent had been unfit for work but that such unfitness was, predominantly, the consequence of his mental rather than his physical condition.
A significant issue which arose at the trial was the extent to which the accident was the cause of the respondent's psychiatric state and, thus, his loss. Much evidence was called as to this issue. It revealed that in February 1980 the respondent had been assaulted by police and, as a consequence, had developed delusional thoughts and paranoid tendencies, particularly about the activities of the police towards him. The evidence further suggested that his mental state had been aggravated by an assault at work in 1981. It was the opinion of the respondent's treating psychiatrist, Dr Kwong, that his psychiatric state had been further aggravated and intensified by the road accident and physical injuries and that this had caused a depreciation of his pre-existing condition leading to the 1991 incapacity. She regarded him as being, by then, chronically depressed but diagnosed his condition as, substantially, a post-traumatic stress disorder of which the motor vehicle accident was the predominant cause and without which the respondent would have been able to continue working. This was a view with which the psychiatric experts called by the appellant disagreed. It was their view that any post-traumatic symptoms suffered by the respondent were relevantly "swamped" by his paranoid and psychotic condition which was independent of the trauma of the accident.
In the end, his Honour accepted the opinions proffered by the respondent's specialists, Dr Kwong, Dr Kouzmin and Dr Rose, and in particular, that proffered by Dr Norman Rose, whom he found to be the "most compelling" of the psychiatric witnesses. It was Dr Rose's evidence that the disabling symptoms suffered by the respondent were partly the result of the respondent's underlying delusional disorder which preceded the accident and partly the consequence of the post-traumatic stress disorder which had been produced by the accident. His Honour concluded as follows:
"On consideration of the totality of the psychiatric evidence, the [respondent's] evidence and that of his wife, and having the opportunity to observe and listen to the [respondent], on the balance of probabilities I find that the views expressed by Dr Rose, as supported by Dr Kwong, the treating psychiatrist and ... Dr Kouzmin ... are those to be accepted and I find that, as a result of the [respondent's] pre-existing condition prior to the motor car accident of 1982, and as a consequence of the motor car collision, that the [respondent's] psychiatric condition relates 40% to his pre-accident experiences and 60% to the motor car accident."
On the basis of the findings which he had made his Honour assessed the respondent's damages. He found that the respondent had and would continue to suffer from pain, whether organically or psychogenically produced, and had and would continue to lead a severely restricted life-style. He awarded $80,000 for the non-economic component of general damages which he regarded as "fair and reasonable" notwithstanding the respondent's "vulnerable" pre-existing psychiatric state. Doing the best that he could on the evidence available to him, his Honour allowed a sum of $10,976.30 for "special damages" in relation to medical and related expenses.
In respect of "past income loss", his Honour accepted that the respondent had been a hard worker until the time of the accident. He found that before that time he was earning about $169 nett per week from his trucking business and allowed for the two-year period off work following the accident the sum of $17,745. His Honour further found that between 1984 when the respondent resumed his business and 1991 when his incapacity forced him to cease, he had earned as much as was available to him during the period. Indeed, during that period he had earned considerably more than he had earned before the accident. On the basis of the evidence available, predominantly the taxation records produced by the respondent, his Honour found that in the financial year ended June 1991, the respondent was earning at the rate of $366 nett per week. Using that figure as the "lost" rate of earnings between 1 July 1991 to March 1999 (the date of the trial) his Honour found that there had been a total loss of income for the period of $145,668, which he reduced for "contingencies" by 15% to $123,817.
So far as future income loss was concerned his Honour adopted the agreed "multiplier" of $457 and found that, had it not been for the accident, the respondent would have worked until the age of 65 at an average rate of $400 per week. This produced a gross figure of $182,800 which his Honour found was to be reduced considerably for "contingencies" or "vicissitudes", a finding which was influenced by the respondent's pre-existing fragile psychiatric state. He thus discounted the gross sum assessed by 40% which produced a figure of $109,680. To this was added a sum of $4,113 for future medical expenses.
His Honour finally turned, in the assessment of damages, to the loss claimed by the respondent in respect of the sale of his truck, which the respondent had sold to his sister-in-law for $10,000 in early 1994. According to the respondent's taxation returns the truck had a written down value of $32,730 as at 30 June 1990. His Honour said that the truck appeared to have been sold at "an extraordinary discount" and expressed concern that no expert valuation evidence had been given, nor had the purchaser been called. In the light of these matters his Honour concluded that he "proposed to make an allowance of $15,000 for the forced sale of the truck".
His Honour's assessment of damages was, thus, as follows:
Pain and suffering and loss of enjoyment of life $80,000.00
Special damages $10,976.30
Loss of income from October 1982 to November 1984 $17,745.00
Loss of income from July 1999 to date of trial $123,817.80
Future income loss or loss of earning capacity $109,680.00
Future medical expenses $4,113.00
Loss on sale of truck $15,000.00
producing a total sum of - $361,332.10
In accordance with the findings that he had made, his Honour reduced the total damages assessed by the 60% representing the respondent's share of blame for his own loss. He accordingly entered judgment for the respondent in the sum of $145,000 to which was added the sum of $53,000 agreed by the parties as the sum which should be awarded for interest.
As I have already indicated, the appellant has now limited its appeal to his Honour's assessment of damages, particularly those amounts awarded for income loss after 1991. The respondent has cross-appealed against his Honour's finding of contributory negligence.
So far as the assessment of damages is concerned the appellant relies upon the following grounds:
(1)The learned judge failed to impose an inadequate discount on the calculation of damages for the years 1991-1999.
(To that ground were added by leave at the outset of this appeal the following words : "and in respect of loss of future earning capacity". The amendment by way of those latter words has proved to be unnecessary because, as I understood the submissions, the appellant did not press in argument the proposition that the discount of 40% made by the judge in respect of loss of future earning capacity was inadequate.)
(2)The learned trial judge should not have found that any economic loss beyond May of 1991 was causally related to the injuries arising from the subject accident.
(3)The learned judge failed to give proper effect to the number of hours worked per week by the respondent in the years 1984-1991.
(This ground was subsumed by ground (2) and was said to represent a contention that, in determining that the post-1991 income loss was caused by the accident, the judge had failed to give sufficient weight to the fact that the respondent had worked substantial hours between 1984 and 1991.)
(4)The learned judge erred in allowing the respondent damages for the loss on the sale of the truck.
By his cross-appeal the respondent claims that, on the evidence accepted and his own findings, his Honour was in error in finding that the respondent was contributorily negligent or, alternatively, was responsible to the extent of 60% for his own loss.
Arguments on Appeal
The principal submission made by the appellant in respect of grounds (2) and (3) was that his Honour was in error in finding that any income loss claimed by the respondent after 1991 was causally related to the motor car accident. As an adjunct to this submission it was further contended that, upon an analysis of his reasons, his Honour did not find that, but for the motor car accident in 1982, the respondent would have continued to work after 1991.
In respect of the first of these contentions, it was submitted that the expert opinions upon which the judge relied to support his conclusions were worthless because they lacked a proper foundation for them. It was put that where, as here, it was an accepted fact that the respondent had a significant pre-existing paranoid personality disorder, it was for the respondent to prove, by appropriate and reliable evidence, that such pre-existing disorder had been aggravated by the accident and the injuries sustained and that such aggravation had caused the ultimate incapacity for work which had supervened in 1991. It was contended that his Honour had no reliable basis for so concluding, first because the history and symptoms related by the respondent to the medical specialists whose evidence his Honour accepted, were so contaminated by deficiencies and falsities that the opinions founded upon them were of no evidential value and, secondly, because significant symptoms, crucial to a finding of post-traumatic stress disorder, had no foundation for them in the evidence. Thus it was said that Dr Rose had conceded that symptoms of what he called "flashbacks" were a necessary pre-condition to the formation of the opinion that the respondent had developed a post-traumatic stress disorder and that no evidence had been given by the respondent that he in fact suffered or had suffered from such symptoms. It was put that the mere fact that he may have told Dr Rose and others that he did suffer from such symptoms was hearsay material which, without evidential support, could not justify his Honour's acceptance of opinions founded upon the existence of certain symptoms.
It was further submitted that each of the respondent's medical specialists had agreed that their opinions were dependent upon accurate presentation by the respondent of his symptoms and that each, to one degree or another, had conceded that there were relevant factors which he or she did not receive. In support of these submissions, appellant's counsel took us to a number of passages in the transcript of evidence which were said to support his submission that the opinions upon which his Honour relied to support his conclusions were founded upon inaccurate and misleading histories and presentation or upon material which was not supported by the evidence. Thus, it was contended that there was no proper basis upon which his Honour could conclude, as he did, that the accident had precipitated in the respondent a delayed post-traumatic stress disorder which had so aggravated his pre-existing state that he had become incapacitated in 1991.
The respondent's counsel took issue with these submissions. He, too, took us to various passages in the transcript of evidence of the respondent and each of the expert witnesses in order to demonstrate that appropriate foundations had been laid to support the impugned opinions and to show that it was well open to his Honour to reach the conclusion which he did. It was further submitted that all of the suggested inconsistencies and imperfections in the histories given by the respondent had been squarely put to the witnesses at the trial and that, even with that knowledge, the witnesses had not resiled from the opinions expressed.
The relevant legal principles to be applied by the Court are not in dispute. An expert opinion is only as good as the foundation upon which it is based. For such an opinion to be of any value, the facts upon which it is based should be proved by admissible evidence (Ramsay v. Watson (1961) 108 C.L.R.642; Paric v. John Holland (Constructions) Pty. Ltd. (1985) 59 A.L.J.R.844). However, as the High Court pointed out in the latter case, "that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based". It is only the failure to prove data significant to the formation of the opinion which will warrant its rejection.
It would, in my opinion, be a profitless and time-consuming exercise to rehearse in detail the lengthy passages in the transcript of evidence to which counsel have referred us. I simply note that I have re-read the whole of the evidence of the medical experts and the respondent. At the end of the day I am not persuaded that his Honour was in error in acting upon the opinions of the respondent's medical witnesses or that those opinions lacked a proper foundation for their expression. It is apparent from the transcript that similar submissions as those made to us were made to the trial judge. His conclusion that the opinions were soundly based was attended by careful reasons, no doubt because of the submissions that had been made to him. It is obvious that his satisfaction that he could act on the opinions was based on his evaluation of the whole of the evidence which included the horrifying circumstances of the accident itself and the evidence of the respondent and his wife of the effects which that experience had had upon him. Having regard to the circumstances of this case and the wealth of material before the court, satisfaction by a trial judge, who has seen the witnesses and heard the evidence which they have given, that he can act on opinions given is not one which will be lightly interfered with by an appellate court. The Court would only do so if it was glaringly obvious that, upon scrutiny of the evidence, there was no proper foundation for the opinions upon which the judge acted. I am far from persuaded that there was a lack of proper foundation for the opinions which he indeed accepted. Undoubtedly his task was a complex one, made more complex by the problems which had beset the respondent, and indeed the manifest difficulties which the respondent had in expressing himself with precision in the English language. The same problems, no doubt, confronted the specialists themselves who examined and took histories from the respondent. It would, I think, be highly unlikely that a description by the respondent of his symptoms would match the language of the specialists who recorded them. Such difficulties, I would assume, would be "grist to the mill" for experts accustomed to assessing and evaluating complaints from psychiatrically disturbed people. Their opinions are formed upon the total picture presented to them. In my view, his Honour was not bound to reject their opinions simply because the respondent did not describe "flashbacks" in terms used by the specialists. Even if such a symptom can be said to be a sine qua non of a diagnosis of post-traumatic stress disorder, which in my view the evidence did not establish when viewed as a whole, it was well open to his Honour to conclude that the gist of the evidence given by the respondent did indeed describe such symptoms. Furthermore, it is apparent that his Honour was aware of the various deficiencies and discrepancies which the appellant was suggesting undermined the opinions of the specialists which he accepted. His Honour did not regard those discrepancies and deficiencies as precluding his acceptance of those opinions and I am not prepared to say that he was in error in doing so. All of these matters were the subject of careful consideration by his Honour in reaching his conclusions, and I can find no error of magnitude which would warrant interference by this Court. The only error identified by appellant's counsel was a short passage in his Honour's reasons where it appears that he accepted a portion of the history given to Dr Kwong as a finding reached by her. However, on a review of the evidence, I do not accept that such error was material or invalidated his Honour's ultimate decision. Nor, in my view, is it correct to say that his Honour did not find that, but for the motor car accident, the respondent would have continued to work after the accident. Counsel pointed to the passage in his Honour's reasons to which I have earlier referred in which he said that he accepted Dr Rose's opinion that 60% of the respondent's condition was attributable to the motor car accident and 40% to pre-existing disabilities. I agree that acceptance of that opinion does not equate to a finding that the motor car accident was the cause of the respondent's ceasing to work. But when one looks at the whole of his Honour's reasons, including his acceptance of the evidence of the treating psychiatrist, it is clear that he did conclude that the effective cause of the respondent's inability to work was the aggravation of the pre-existing disorder produced by the accident-related post-traumatic stress disorder.
For these reasons I am not satisfied that a basis has been demonstrated for interfering with his Honour's assessment of damages for income loss post-1991.
Contingencies
The appellant next submitted that his Honour was in error in reducing his calculation of past income loss by a factor of only 15%. It was put that there was no logical basis for doing so when he had reduced damages for loss of future earning capacity by 40%. This submission seems to me to misconceive the respective functions which his Honour was called upon to perform. His Honour had found that the respondent had been able to carry on his employment from 1984 to 1991 notwithstanding his pre-existing psychiatric disorder, and that by 1991 his post-traumatic stress disorder had sufficiently supervened to preclude him from working at all. He was fully apprised of the respondent's history between that date and the date of trial which put him in a prime position to make an assessment of the extent to which, during that period, the pre-existing disability might have precluded the respondent from working had not the effects of the motor car accident supervened. Amongst other things he knew that from 1984 to 1991 the respondent was not precluded by his pre-existing disability from continuing to work and no doubt was entitled to conclude that he would, at least for a substantial period, have continued to do so had it not been for the emerging symptoms of post-traumatic stress disorder. He also knew from the evidence of occasions upon which the respondent's pre-existing symptoms had become florid. He was accordingly called upon to make an allowance, in the light of what he knew, which would reflect an appropriate discount for those periods of time during which the symptoms of his pre-existing disorder might have prevented the respondent from engaging in gainful employment. The discount which he made was based on impressions gained from the evidence and, based on that judgment, he allowed 15%. An appellate court cannot lightly interfere with such an assessment by the trial judge who has seen and heard the witnesses and, for my own part, I cannot say that, in making the allowance which he did, his Honour fell into error. There is, in my view, no basis for contending that error is disclosed simply because he made a more substantial discount for contingencies when assessing damages for loss of future earning capacity. That assessment was made for the future and, as his Honour's reasons disclose, required him to take into account a range of possibilities broader in their extent than those which had influenced him in discounting for past losses. As Barwick, C.J. pointed out in Arthur Robinson (Grafton) Pty Ltd. & Anor. v. Carter (1968) 122 C.L.R.649 at 659, assessments of future economic loss must take into account a variety of considerations beyond ill-health. They include such things as accidents, changes in industrial climate and the "mere daily vicissitudes" which afflict all persons, including advancing years, and all of those will apply and operate in the judge's assessment of an appropriate discount. A judge's assessment of an appropriate discount for contingencies is founded on hypothetical valuations and defy precise calculation. At best they can be a matter of impression (Wynn v. NSWInsurance Ministerial Corporation (1996) 70 A.L.J.R.147 at 154 per Dawson, Toohey, Gaudron and Gummow, JJ.) In this case his Honour made a discount of 40%, which seems to me, if I may say so, to be generous to the appellant but was indeed no doubt heavily influenced by the fact that all of the contingencies which should be taken into account were adverse to the respondent.
Accordingly, in my view, ground 1 of the notice of appeal has not been made out.
Sale of Truck
I do, however, disagree with his Honour's assessment of the loss to the respondent on the sale of the truck. It is, of course, trite to say that it is for the plaintiff to prove the quantum of his loss. No evidence was led of the value of the truck at the time when it was disposed of to the respondent's sister-in-law in 1984 beyond the "written down value" appearing in the books of the respondent in 1990 and certain evidence given by the respondent himself which, in my view, did not add to that evidence. Since then, as was apparent from the respondent's evidence, the truck had rusted and had been the subject of substantial vandalism. In the circumstances, it seems to me that the real evidence of the truck's value was the price of $10,000 for which it changed hands and no basis, in my view, was established for awarding a sum of $15,000 as loss on its re-sale. I would therefore interfere with his Honour's assessment of damages only to reduce the gross damages so assessed by $15,000.
Respondent's counsel argued that this Court should interfere with his Honour's finding of contributory negligence or the apportionment of 60% of the blame assessed to the respondent. It was, in my opinion, well open on the respondent's own evidence for the trial judge to conclude that he had failed to keep a proper lookout and that such failure amounted to contributory negligence. It was, as his Honour found, the failure of the respondent to see the jagged steel lying on the road surface until he was, in essence, "on top of it" that caused him to swing the car to the left, thus hitting the kerb and depriving him of control. In the light of the evidence that the weather was fine and that there was nothing to obstruct vision, the finding of failure to keep a proper lookout was, as it seems to me, almost inevitable. I do not accept the respondent's contention that his conduct ought to have been regarded by the judge as mere inadvertence or momentary inattention not amounting to contributory negligence. Nor do I accept the contention that it was the appellant's negligence which was "the real cause of the accident". It is true that in industrial accident cases where a breach of the employer's duty to provide a safe system of work has been established, inadvertence or momentary inattention on the part of the plaintiff may not necessarily amount to contributory negligence in a particular case (cf. Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301); but it is incorrect to assert that, even in those circumstances, such conduct can never amount to contributory negligence: Kakouris v. Gibbs Burge & Co. Pty.Ltd [1970] V.R.502 at 508-9. Even if such conduct could, in some circumstances, be said to be consistent with reasonable care, there was nothing in the evidence before his Honour which would enable this Court to interfere with his finding that the belated observation of the danger in front of the respondent amounted to negligence on his part. Nor, in my view, is it open to the respondent to challenge his Honour's apportionment of blame. Apportionment of responsibility or blame between two parties is an exercise very much in the nature of a value judgment with which an appellate court is, and ought to be, loath to interfere. It is well established that it is a difficult task to set aside a finding of apportionment of blame. That is so whether the finding is made by a judge or a jury (Rukavina v. Incorporated Nominal Defendant [1992] 1 V.R.677 at 685). In Podrebersek v. Australian Iron and Steel (1985) 59 A.L.R.529 the High Court said, at 532:
"A finding on a question of apportionment is a finding upon 'a question not of principle or ... of fact or law, but of proportion, of balance of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.' (British Fame(Owners) v. McGregor (Owners) [1943] A.C.197 at 201). Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."
I would not, for my own part, be prepared to interfere with his Honour's apportionment of 60%-40% in favour of the appellant.
For the reasons I have given, I would allow the appeal solely as to the award of $15,000 made in respect of the sale of the truck, and I would dismiss the cross-appeal.
BUCHANAN, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal orders of the Court will be:
1.The appeal is allowed but only to the extent of setting aside the award of $15,000 which the trial judge made in respect of the sale of the truck.
2.Paragraph 1 of the judgment and orders made by the County Court on 23 April 1999 is set aside and in lieu thereof there is substituted the following:
"(1)There be judgment for the plaintiff against the defendant in the sum of $139,000 together with interest agreed in the sum of $50,500."
3.That the cross-appeal be dismissed.
4.That the appellant pay the costs of the appeal.
5.That the respondent pay the costs of the cross appeal.
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