Falco v Aiyaz; Falco v Falzon - [2015] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202
Hearing dates: 29 May 2015
Decision date: 17 July 2015
Before: Macfarlan JA at [1];
Emmett JA at [2];
Sackville AJA at [19]
Decision:
Matter No 2014/146669 (Falco v Aiyaz)
1. Appeal dismissed.
2. The appellant pay the respondent’s costs of the appeal.
3. Cross-appeal allowed.
4. Set aside the judgment entered on 24 April 2014 in favour of the appellant.
5. In lieu thereof, enter judgment for the appellant in the sum of $5,805.25.
6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Matter No 2014/146657 (Falco v Falzon)
1. Appeal dismissed.
2. The appellant pay the respondent’s costs of the appeal.
3. Cross-appeal allowed.
4. Set aside the judgment entered on 24 April 2014 against the respondent.
5. In lieu thereof enter judgment for the appellant in the sum of $81,240.10.
6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords: MOTOR ACCIDENTS COMPENSATION – assessment of damages - appellant injured in two separate motor vehicle accidents – appellant developed psychiatric condition - both proceedings were heard together in District Court – primary Judge found appellant required seven hours of domestic assistance - damages apportioned 50:50 between the two respondents – whether primary Judge erred in assessment of non-economic loss and need for domestic assistance – whether threshold requirement for awarding damages for past and future gratuitous care prescribed by s 141B(3) of the Motor Accidents Compensation Act 1999 (NSW) satisfied
Legislation Cited:
Civil Liability Act 2002 (NSW), ss 15(2)(b), 31
Civil Liability Legislation Amendment Act 2008 (NSW), Sch 2.2 [1]; Sch 2.2 [3]
Civil Procedure Act 2005 (NSW), s 56(1)
Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW), Sch 2 [3]
Motor Accidents Compensation Act 1999 (NSW), ss 122(1), 141B(3); Sch 5 [34]
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited: Boncristiano v Lohmann [1998] 4 VR 82
Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115
Falco v Aiyaz; Falco v Falzon (District Court, 24 April 2014, unrep)
Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396
Muller v Sanders (1995) 21 MVR 309
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003 (Supreme Court of Western Australia, Full Court)
Category: Principal judgment
Parties:
Matter No 2014/146669

Juliana Falco (Appellant)
Mohammed Aiyaz (Respondent)

Matter No 2014/146657
Juliana Falco (Appellant)
Victor Falzon (Respondent)
Representation:
Counsel:
R Sheldon SC / Ms E Welsh (Appellant)
P Deakin QC / C Hickey (Respondent Aiyaz)
KP Rewell SC / Ms CJ Allan (Respondent Falzon)
Solicitors:
Brydens Law Office (Appellant)
Curwoods Lawyers (Respondent Aiyaz)
Moray & Agnew (Respondent Falzon)

File Number(s): 2014/146669 and 2014/146657
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil Jurisdiction

Date of Decision:

24 April 2014

Before:

Bozic SC DCJ

File Number(s):

2010/147045 and 2010/147073

Judgment

MACFARLAN JA: I agree with Sackville AJA.
EMMETT JA: These two appeals are concerned with the damages to which the appellant, Ms Juliana Falco, is entitled, as a consequence of psychiatric conditions that she developed following separate motor vehicle accidents in which a vehicle in which she was travelling was struck from behind. On the first occasion, the vehicle that struck her vehicle was driven by Mr Mohammed Aiyaz. On the second occasion, the vehicle that struck her vehicle was driven by Mr Victor Falzon. Ms Falco sued Mr Aiyaz and Mr Falzon in separate proceedings in the District Court. There was no question as to the liability of each of Mr Aiyaz and Mr Falzon.
The two proceedings were heard together by a judge of the District Court (the primary judge), who directed judgment in favour of Ms Falco against Mr Aiyaz in the sum of $87,958.75 and against Mr Falzon in the sum of $163,393.60. Ms Falco has appealed to this Court on grounds that the damages awarded in her favour are inadequate. Each of Mr Aiyaz and Mr Falzon has cross-appealed.

The Accidents

On 1 December 2003, Ms Falco was a passenger in a car being driven by her husband in Canterbury Road, Punchbowl. A taxi in front of their car braked suddenly and so did Mr Falco. A car driven by Mr Aiyaz struck their car from behind (the First Accident).
On 1 March 2004, Ms Falco and her husband were in their car on the Cumberland Highway, Cabramatta. Their car was stationary at an intersection when a car driven by Mr Falzon struck their car from behind (the Second Accident).

The Conclusions of the Primary Judge

The primary judge found that Ms Falco was an unreliable witness on whose evidence his Honour placed little weight. His Honour also considered that Mr Falco was unreliable and, in certain respects, lacking in credit. Their daughter, Ms Andrews, also gave evidence as to Ms Falco’s condition, which evidence his Honour found to be unreliable. His Honour therefore approached the evidence of those three witnesses with a degree of caution.
The primary judge found that the First Accident was a minor one and that, following the First Accident, Ms Falco was upset and subsequently had some anxiety and showed some concerns about driving. The primary judge also found that the Second Accident was a minor one. Shortly after the First Accident, and immediately after the Second Accident, Ms Falco saw her general practitioner. His Honour found that in both the First Accident and the Second Accident, Ms Falco suffered soft tissue injuries. His Honour found that in the six months following the Second Accident, Ms Falco felt anxious, nervous and distressed and that, from August 2004 until around the beginning of 2008, she continued feeling anxious and stressed.
The primary judge found that, in the period up to 2008, the general picture that emerged was that Ms Falco was able to do some of her household tasks, was unable to do the heavier tasks and was assisted by her daughters and by her husband with the heavier tasks, some of the cooking and the shopping. His Honour then dealt with alleged deterioration in Ms Falco’s condition from 2009. His Honour was satisfied that the evidence regarding Ms Falco’s deterioration from 2009 and her presentation to doctors since 2009 was the product of “considerable exaggeration” on her part.
The primary judge found that, following the First Accident, Ms Falco developed symptoms of a generalised anxiety disorder and that her response to the First Accident went beyond a normal emotional response. His Honour found that, following the Second Accident, Ms Falco had symptoms of an adjustment disorder and mixed anxiety and depressed mood. However, his Honour found that her condition as at 2006 to 2007 had stabilised and was likely to persist in the short to medium term, which he assessed as a period of ten years.
The primary judge then considered the question of apportionment of the damage suffered by Ms Falco between Mr Falzon and Mr Aiyaz. His Honour concluded as follows:

in the First Accident, Ms Falco suffered a mild adjustment disorder with mixed anxiety and depression;

that condition had not stabilised as at the date of the Second Accident;

as a result of the First Accident, Ms Falco was predisposed to an increased psychological reaction as a result of the Second Accident;

as a result of the Second Accident, Ms Falco suffered an increase in the symptoms of the adjustment disorder with mixed anxiety and depressed mood.

In those circumstances, his Honour apportioned the damage equally between Mr Aiyaz and Mr Falzon.

The Appeals and Cross-Appeals

The grounds of appeal in Ms Falco’s two appeals are identical. In essence, she claims that the primary judge erred in concluding that she had exaggerated her symptoms. I have had the advantage of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour, for the reasons proposed by him, that Ms Falco’s challenge to the primary judge’s finding that she considerably exaggerated her symptoms fails and that the assessment by the primary judge of the extent of Ms Falco’s psychiatric disabilities attributable to the accidents discloses no appellable error.
The cross-appeals raise more difficult questions. It is not clear from the reasoning of the primary judge how his Honour arrived at the conclusion that the damages to which Ms Falco is entitled should be apportioned equally between the two drivers.
The parties accepted that, where the negligence of a defendant causes injury and the plaintiff subsequently suffers further injury, the principles for determining the causal connection between the negligence of the defendant and the subsequent injury are as follows:[1]

where the further injury results from a subsequent accident that would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by the negligence of the defendant;

where the further injury results from a subsequent accident that would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the negligence of the defendant;

where the further injury results from a subsequent accident that would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should not be treated as caused by the negligence of the defendant.

Those principles are applicable for determining the liability of Mr Aiyaz following the First Accident.

1. State Government Insurance Commission v Oakley (1990) Aust Torts Reports ¶81-003 at 67,577.

The primary judge purported to apply the second principle. However, his Honour does not appear to have turned his mind to identifying the additional damage resulting from aggravation caused by the Second Accident. That is to say, it was necessary for his Honour to make a determination as to the condition in which Ms Falco would have found herself, after the First Accident, on the assumption that the Second Accident had not occurred, and then to make a determination as to the extent to which Ms Falco’s present position is different, as a consequence of the Second Accident, from the condition in which she would have found herself but for the First Accident.
It may be that his Honour found that each of Mr Aiyaz and Mr Falzon was liable for the whole of the damage suffered by Ms Falco. In that case, there would have been questions as to contribution between them. While there were no cross-claims filed in either of the proceedings commenced by Ms Falco, there would have been equitable rights of contribution had a judgment for the full amount been enforced against one or the other.
However, it is difficult to see the basis upon which the primary judge simply assessed that the damage should be apportioned one half to Mr Aiyaz and one half to Mr Falzon. It is strongly arguable that his Honour erred in failing to make a determination in accordance with the principles that he purported to apply. However, the parties did not contend that that was an error on his Honour’s part.
I agree with Sackville AJA, for the reasons proposed by his Honour, that the primary judge was in error in awarding damages against Mr Aiyaz and Mr Falzon in respect of Ms Falco’s need for gratuitous care services. On the findings made by the primary judge, the provisions of the Motor Accidents Compensation Act1999 (NSW) (in particular s 141B(3)) preclude an award of damages for the gratuitous care services against each respondent.
I agree with the orders proposed by Sackville AJA in both appeals.
SACKVILLE AJA: The appellant was involved in two separate motor accidents, the first on 1 December 2003 (First Accident) and the second on 1 March 2004 (Second Accident). In each case she was a passenger in a vehicle driven by her husband, when the vehicle was struck from behind. The appellant was 58 years old at the time of the accidents.
The appellant brought separate proceedings in 2010 in respect of the injuries allegedly sustained in each accident. The statement of claim in each matter was filed on 11 June 2010. The proceedings were heard together in the District Court over six hearing days between 29 April 2013 and 25 July 2013. Neither of the present respondents (Mr Aiyaz and Mr Falzon, respectively) disputed liability. Neither Mr Aiyaz nor Mr Falzon made a claim for contribution against the other.
It will be seen that the District Court proceedings were commenced some six years after the Second Accident. The Court was told that the principal reason for the apparently lengthy delay was that the appellant challenged certain administrative decisions relating to her claims and that statutory time limits were suspended while her challenge remained unresolved. Whatever the reason, the trial took place more than nine years after the Second Accident and this appeal has been heard eleven and a half years after the First Accident. The history of the litigation does not engender confidence that the objectives stated in s 56(1) of the Civil Procedure Act 2005 (NSW) [2] are being universally achieved.
2. Section 56(1) provides that the overriding purpose of the Act and the rules is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.
The primary Judge identified the issues as follows: [3]

“4. The plaintiff claims that she suffered soft tissue injuries and psychological and psychiatric injuries as a result of both accidents. She alleges that her psychiatric condition is now severely disabling to the extent that she requires full time care for the rest of her life. It is the defendants’ case that the plaintiff’s psychological injuries have been grossly exaggerated and that the evidence of the plaintiff, her husband and her daughter … cannot be relied upon.
5. As between the defendants there is an issue as to the apportionment of the plaintiff’s damages.”

The “issue as to apportionment” appears to refer to the extent to which each of the respondents was liable for the damage sustained by the appellant in consequence of the First and Second Accidents.

3. Falco v Aiyaz; Falco v Falzon (District Court, 24 April 2014, unrep) (Primary Judgment).

The primary Judge awarded the appellant damages totalling $248,756. The largest components of this award were damages for:

non-economic loss:      $75,000

past gratuitous care:   $92,050

future gratuitous care:   $72,257

His Honour said[4] that he proposed to apportion damages between Mr Aiyaz and Mr Falzon on the basis that each was 50 per cent responsible for the appellant’s loss. However, since the appellant claimed damages for non-economic loss only in relation to the Second Accident, his Honour included the whole of the award for non-economic loss in the judgment against Mr Falzon. The result was that his Honour entered judgment against Mr Aiyaz for $86,878 and against Mr Falzon for $161,878.
4. At [283].
It appears that his Honour’s calculation involved some errors. The heads of damage set out in the Primary Judgment in fact totalled $251,352.35. The judgment entered against Mr Aiyaz was varied on 24 April 2014 under the slip rule[5] to $87,958.75. Although the appeal books contain no record of an equivalent variation of the judgment entered against Mr Falzon, that judgment was presumably also varied under the slip rule, to $163,393.60.
5. Uniform Civil Procedure Rules 2005 (NSW), r 36.17.
The appellant filed a notice of appeal in each matter. The notices of appeal contend that the primary Judge erred in his assessment of the nature and extent of the appellant’s injuries and that the damages award is therefore inadequate. The appellant complains, in particular, that his Honour erred in finding that she exaggerated her symptoms and in awarding inadequate damages in respect of non-economic loss and her need for domestic assistance.
Mr Aiyaz and Mr Falzon have cross-appealed. The only ground of each cross-appeal that is pressed is that the primary Judge erred in finding that the appellant’s need for past or future gratuitous care exceeded the threshold of six hours per week prescribed by s 141B(3) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The error is said to be that his Honour assessed the appellant as requiring seven hours of domestic assistance per week after the date of the Second Accident (1 March 2004), but neglected to divide that figure equally between the respondents. Had he done so, the need for domestic assistance attributable to the negligence of each respondent would have been 3.5 hours per week, below the threshold of six hours per week prescribed by s 141B(3) of the MAC Act.

Legislation

Section 141B of the MAC Act, provides as follows:

“(1)   Compensation, included in an award of damages, for the value of attendant care services:
(a)   which have been or are to be provided by another person to the person in whose favour the awards is made, and
(b)   for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.
(2)   No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3)   Further, no compensation is to be awarded unless the services are provided (or to be provided):
(a)   for at least 6 hours per week, and
(b)   for a period of at least 6 consecutive months.

(4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:
(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales

…
(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.”[6]

6. Section 141B of the MAC Act was originally included in the MAC Act as s 128. Section 128(3) was omitted and a new s 128(3) substituted by the Civil Liability Legislation Amendment Act 2008 (NSW), Sch 2.2 [1]. The amending Act provided that any amendment extended to liability arising and to proceedings commenced before the amendment commenced, but not to any proceedings determined before the commencement: Sch 2.2 [3]; see now MAC Act Sch 5 [34]. Section 128 was renumbered as s 141B of the MAC Act by the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW), Sch 2 [3]. Since these proceedings were commenced in 2010, s 128 as amended in 2008 (now s 141B) is applicable. For convenience I refer to the relevant provision as s 141B of the MAC Act.

Primary Judgment

The primary Judge noted that the circumstances of the First Accident were not in dispute, but that there was a significant dispute about the nature and severity of the Second Accident. [7] Mr Falco, the appellant’s husband, gave evidence that the Second Accident was a “massive” rear end collision that caused considerable damage to his vehicle, but that evidence was challenged.
7. At [6].
The primary Judge found that no weight could be placed on the evidence given by the appellant. [8] For almost the whole of her evidence she appeared to be in a state of distress and many of her answers were unresponsive. His Honour considered that it was unnecessary to determine whether the appellant’s demeanour “was the product of fabrication, exaggeration or a severe psychiatric condition”. [9] It was sufficient to note that her evidence was unreliable. Thus in the absence of corroboration, it could be given no weight. [10]
8. At [49], [216].
9. At [52].
10. At [198].

The primary Judge also found that a number of matters adversely affected the credit of Mr Falco. [11] His Honour considered Mr Falco’s evidence to demonstrate “general unreliability”. [12]
11. At [200]-[204].
12. At [205], [216].
The primary Judge did not accept the evidence of the appellant and Mr Falco as to the severity of the Second Accident. [13] In particular, his Honour did not accept their evidence that their vehicle had been hit twice from behind and pushed across the intersection. He found that both the appellant and Mr Falco had exaggerated the nature of the Second Accident and the severity of the consequences. [14] His Honour specifically rejected Mr Falco’s claim that immediately after the accident the appellant was in a terrible state and kept running up and down; screaming and holding her head. [15] His Honour preferred the evidence of Mr Falzon that he did not see anyone from Mr Falco’s vehicle acting in the dramatic fashion described by Mr Falco. [16]
13. At [48].
14. At [59].
15. At [22], [57].
16. At [57].
The First Accident, which occurred when Mr Falco braked suddenly in order to avoid an accident, was “minor”. [17] Following the First Accident, the appellant had “some physical restrictions and some anxiety”. [18] She was upset, showed some concerns about driving and complained of stiffness, soreness and pain in her neck and back. While the appellant sustained soft tissue injuries as a result of the First Accident,[19] it was very minor and the appellant’s response went “beyond a normal emotional response”. She developed symptoms of a “generalised anxiety disorder”. [20]
17. At [60], [224].
18. At [224].
19. At [228].
20. At [262].
The Second Accident occurred when Mr Falco’s vehicle was stationary at traffic lights. [21] It was hit once by the car driven by Mr Falzon, but that car was travelling only in the order of 5 kph and certainly no more than 10 kph. [22] Mr Falco’s vehicle suffered minor damage in the Second Accident.
21. At [61].
22. At [62].
As with the First Accident, the appellant sustained soft tissue injuries in the Second Accident. [23] During the six months after the Second Accident, the appellant felt anxious, nervous and distressed. [24] She continued in this condition until the beginning of 2008. [25] On the basis of the complaints noted in the contemporaneous medical records, the “general picture” during the period from November 2004 until November 2007 was that the appellant:

“was able to do some of the household tasks, was unable to do the heavier tasks and was assisted by her daughters and by her husband with the heavier tasks, some of the cooking and the shopping”. [26]
23. At [228].
24. At [229].
25. At [230].
26. At [239].

The primary Judge recorded that it was necessary to deal with the appellant’s claim that she had suffered a serious deterioration in her condition from 2009 onwards. [27] Taking into account the previous findings, his Honour was satisfied that the appellant’s “presentation was the product of considerable exaggeration on her part”. [28]
27. At [240].
28. At [241].
The primary Judge gave five reasons for making this finding: [29]

(i) the appellant’s presentation to the medico-legal psychiatrists was significantly different from her presentation to Dr Law, her treating psychiatrist;

(ii) despite serious concerns raised by Dr Parmegiani and Dr Kaplan, the medico-legal psychiatrists, about the appellant’s mental health, no steps were taken by members of her family to act on those concerns;

(iii) the evidence of the appellant and Mr Falco had to be approached with caution since both had exaggerated the nature and severity of the Second Accident;

(iv) the appellant did not consult her treating psychiatrist, Dr Law, for lengthy periods; and

(v) Dr Law, having seen the appellant on six occasions during 2009, concluded in a report of February 2010 that although the appellant’s psychiatric symptoms were moderately severe to severe for much of the time, the need for hospitalisation was uncertain and the chances that she would require hospitalisation for post-traumatic stress disorder (PTSD) were not high.

29. At [241]-[253].

By reason of these matters much of the medical evidence on which the appellant relied was “problematic”. [30] In particular, Dr Parmegiani, whose opinion was favourable to the appellant’s case, accepted that his opinion would be altered if the appellant was exaggerating her complaints. Dr Parmegiani had also agreed that if the appellant had not become hysterical immediately after the Second Accident (as she claimed) and if the Second Accident had not been as severe as she and Mr Falco had suggested, his opinion as to causation would change. [31]
30. At [254].
31. At [255].
Although the primary Judge was prepared to accept the opinions of experts as to the appellant’s condition prior to 2009, he was unable to accept their opinions as to her condition thereafter, since they were not based on an accurate or reliable history. [32] As noted earlier, his Honour found that following the First Accident, the appellant developed symptoms of a generalised anxiety disorder. [33] Following the Second Accident, the appellant “had symptoms of an Adjustment Disorder with Mixed Anxiety and Depressed Mood”. [34] By 2006/2007, the appellant’s condition had stabilised and was likely to persist in the short to medium term, which his Honour took to mean a period of ten years. [35]
32. At [258].
33. At [262].
34. At [265].
35. At [268]-[269].
The primary Judge rejected a submission by the respondents that even if the appellant had a psychiatric condition, it was not the result of either of the accidents. Given the temporal connection between the accidents and the onset of symptoms, his Honour did not accept that the appellant’s “psychiatric condition is unrelated to the First and Second Accidents”. [36]
36. At [273].
The primary Judge next addressed “apportionment between the two accidents”. His Honour summarised the evidence of Dr Parmegiani, who prepared medico-legal reports over a number of years, as follows:

“(i)   if the plaintiff had been involved in only the [F]irst [A]ccident the emotional sequelae from the [F]irst [A]ccident would have probably lasted in the order of weeks and would have dissipated altogether;
(ii)   if the plaintiff had been involved in only the [S]econd [A]ccident, she would probably have overcome the psychological impact of the accident;
(iii)   as a result of the [F]irst [A]ccident the plaintiff was more fearful of cars and had an increased vulnerability to a significant psychological reaction to the [S]econd [A]ccident.”[37]

This evidence was not inconsistent with the opinion of Dr McClure (an MAS Assessor) that the appellant’s symptoms commenced after the First Accident, but were exacerbated by the Second Accident. [38]

37. At [278].

38. At [279].

The primary Judge rejected a submission on behalf of Mr Aiyaz that the First Accident caused no “recognised psychiatric illness” within s 31 of the Civil Liability Act 2002 (NSW). That submission, in his Honour’s view, depended on accepting the evidence of Dr Parmegiani. His Honour preferred the opinions of Dr McClure and Dr Steele (another MAS Assessor) as to the effects of the First Accident. [39] (There is now no challenge to his Honour’s finding that the appellant suffered a recognised psychiatric illness.)
39. At [280].
The primary Judge summarised his findings as follows:

“[281]   In my view the circumstances of this case fall within the second category described in [State Government Insurance Commission v Oakley [40] (SGIC v Oakley)], namely, that where a further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of earlier injury, the additional damage resulting from the aggravated injury should be treated as being caused by the defendant’s negligence.
[282]   In my view the position is as follows:
(i)   in the [F]irst [A]ccident the plaintiff suffered a mild adjustment disorder with mixed anxiety and depression;
(ii)   the condition had not stabilised as at the date of the [S]econd [A]ccident;
(iii)   as a result of the [F]irst [A]ccident the plaintiff was predisposed to an increased psychological reaction as a result of the [S]econd [A]ccident; and
(iv)   that this is what occurred. As a result of the [S]econd [A]ccident the plaintiff suffered an increase in the symptoms of the adjustment disorder with mixed anxiety and depressed mood.

[283] In these circumstances I propose to apportion the relevant heads of damage in the proportion 50:50.”
40. (1990) Aust Torts Reports 81-083 (Supreme Court of Western Australia, Full Court).

The primary Judge noted that the claim for non-economic loss was made only in relation to the Second Accident. This was because a Medical Assessor had certified that any permanent impairment attributable to the First Accident was not greater than 10 per cent. Thus s 131 of the MAC Act precluded an award of damages for non-economic loss by reason of the First Accident.
His Honour stated his conclusions on the appellant’s claim for non-economic loss against Mr Falzon as follows:

“The plaintiff is now 66 years of age. Prior to the accident Mr Falco and the plaintiff had an active social life. They used to go to the Uruguayan Club and used to go dancing, fishing, attend rugby league matches and go walking and running. Prior to the accidents the plaintiff did all the cleaning work around the house, the cooking, the washing and most of the shopping. She kept the house in an immaculate condition. Since the accidents she has no longer done these things although as I have set out above I do not accept that the plaintiff’s restrictions and disabilities are as severe as she claims.”[41]

His Honour awarded $75,000 under this head.

41. At [287].

Out of pocket expenses were agreed at $2,596.75 for the First Accident and at $3,031.60 for the Second Accident. [42] A further $1,417 for psychiatric treatment was to be equally apportioned between each respondent. [43] His Honour allowed $5,000 for future medical expenses, also to be equally apportioned.
42. At [289]-[290].
43. At [291].
The appellant claimed damages for past gratuitous care on the basis that she required seven hours per week care from the date of the First Accident until the end of 2009 when her condition (so she alleged) deteriorated. In his Honour’s view, seven hours per week was reasonable, but only from the date of the Second Accident. In his view, the appellant did not require six hours or more care per week in the period following the First Accident and this did not satisfy the requirements stated in s 141B(3) of the MAC Act. [44] An allowance of $25 per hour for seven hours per week from the date of the Second Accident until judgment produced $92,050 as the damages to be awarded in respect of past gratuitous care services.
44. At [314].
The appellant had claimed that she required 80 hours per week gratuitous care after the deterioration in her condition. However, for the reasons already given, his Honour did not accept her claim that she needed 24 hour a day care. [45] He allowed future care on the basis of seven hours per week at $25 per hour for ten years, producing a figure of $72,257. [46]
45. At [318].
46. At [320].
The primary Judge apportioned damages between the respondents in the manner described earlier. [47] Specifically, he assessed the appellant’s damages for past gratuitous care at $92,050 and for future gratuitous care at $72,257. In determining the quantum of the judgment to be entered against each respondent, his Honour divided these figures in half. Thus the judgment against each respondent included $46,025 for past gratuitous care and $36,128.50 for future gratuitous care.
47. At [43] above.

The Appeal

The appellant’s written submissions seemed to challenge the primary Judge’s findings that both the appellant and Mr Falco were unreliable witnesses. In his oral submissions, however, Mr Sheldon SC, who appeared with Ms Welsh for the appellant, did not press those submissions. He also did not dispute the primary Judge’s findings that the appellant and Mr Falco had given a false account of the severity of the Second Accident, both in their evidence and in the history they provided to the large number of treating doctors and medico-legal experts. The false account included claims by the appellant and Mr Falco that she had a hysterical reaction to the Second Accident.
Despite this somewhat unpromising start, Mr Sheldon contended that his Honour erred in rejecting the appellant’s claim that her psychiatric condition deteriorated very substantially after 2009. Mr Sheldon submitted that the five reasons given by his Honour for concluding that the appellant’s “presentation was the product of considerable exaggeration”[48] did not justify that conclusion. Mr Sheldon accepted that if this argument succeeded, there would have to be a new trial since questions of credit would have to be resolved.
48. See at [37] above.

The Appellant’s Presentation

Mr Sheldon’s principal focus was on the primary Judge’s finding that the appellant’s presentation to her treating psychiatrist, Dr Law, was significantly different from her presentation to the medico-legal psychiatrists, particularly to Dr Parmegiani. He submitted that the primary Judge mischaracterised the differences between the appellant’s presentation to Dr Law and her nearly contemporaneous presentations to the medico-legal psychiatrists. He submitted that both Dr Law and Dr Parmegiani described the appellant’s condition in similar terms during and after 2009 and that each recorded a marked deterioration in her emotional and psychiatric functioning between 2008 and 2009.

Dr Law’s Reports

Dr Law prepared a report on 19 February 2010 in which he summarised his treatment of the appellant in the course of 13 consultations between 13 August 2004 and 11 February 2010. Five of these consultations took place between 2 February 2009, when the appellant claimed that her condition had commenced to deteriorate sharply, and 11 February 2010. In addition, Dr Law saw Mr Falco alone on two occasions in the latter half of 2009.
It is important to appreciate that Dr Law, like the other doctors, was given a false account as to the seriousness of the Second Accident. He was told that the Second Accident was far worse than the First Accident, although his report did not descend into the detail of the circumstances of the Second Accident. It is also significant that the appellant was always accompanied by her husband when consulting Dr Law. Mr Falco, whom the primary Judge found to be an unreliable witness, seems to have provided Dr Law with a considerable amount of the information recorded in his reports.
Dr Law reported that in his initial consultation with the appellant on 13 August 2004, she was “really distraught and distressed” and sighed repeatedly. Dr Law diagnosed PTSD and prescribed Nortriptyline (a tricyclic anti-depressant). Mr Sheldon submitted that Dr Law’s report of the initial consultation should be taken as the “baseline” for measuring the deterioration in the appellant’s psychiatric condition.
The last consultation before the claimed deterioration in the appellant’s condition was on 29 August 2008, when the appellant was accompanied by Mr Falco. Dr Law’s summary of that consultation is as follows:

“She reported she was not getting any better. She experienced a heightened anxiety level when her 40-year-old daughter underwent an operation to remove a parathyroid gland tumour a month ago. She still had nightmares of being involved in car accidents. She cried to herself quite often. She had to be pushed by her husband to attend to her personal hygiene. I counselled her, and I asked her to take Nortriptyline 37.5 mg at night.” (Italics in original.)

On 2 February 2009, Dr Law reported that the appellant still did not feel good and was experiencing lots of emotional ups and downs. She was forgetful, slept badly and still had some nightmares involving car accidents. Mr Falco reported that the appellant had been in a “miserable mental condition” and that she did not feel safe travelling on public transport. Dr Law recorded that “[m]ental examination revealed she was dejected and depressed”.
When Dr Law saw the appellant again on 12 March 2009, she reported that she still did not feel well. She also said that she had been assessed by other psychiatrists (Dr Parmegiani and Dr Kaplan). She reported having a lot of nightmares and being easily upset and nervous. She experienced retching when she felt nervous or depressed. Dr Law prescribed a higher dose of Nortriptyline and Stemetil (an anti-nausea medication).
At a consultation three months later, on 2 June 2009, the appellant complained of dryness of mouth and nausea from time to time. She reported emotional ups and downs, broken sleeps, dreams of car crashes in “clusters” and headaches on and off. Dr Law again prescribed Nortriptyline and Stemetil, as well as Sandomigran (presumably for the headaches).
On 26 October 2009, the appellant reported similar symptoms. Mr Falco informed Dr Law that at times she had refused to take her medication. Dr Law recorded that the appellant was “distressed and dejected”.

The Medico-Legal Reports

Dr Parmegiani first saw the appellant on 17 July 2006 at the request of her solicitors. His report of that consultation recorded that Mr Falco’s car was rear-ended in the Second Accident and pushed across the intersection. This was “more frightening” than the First Accident and caused the appellant to become hysterical and scared. Medical examinations revealed, however, that the appellant had a normal emotional expression and coherent thinking. She was oriented in time, place and person. Dr Parmegiani considered that the appellant’s psychiatric injuries had stabilised and no significant change could be expected in the short to medium term.
Dr Parmegiani next assessed the appellant on 16 February 2009, between the two consultations with Dr Law on 2 February 2009 and 12 March 2009. Dr Parmegiani recorded that he had been told that Mr Falco’s car had been written off in the Second Accident. He also recorded that the appellant was agitated and unable to provide a coherent history. Thus most of the history was provided by her daughter who accompanied her to the assessment. This is significant because the primary Judge found that the daughter’s evidence was unreliable and that her account of her mother’s condition in the immediate aftermath of each of the accidents was inconsistent with the medical evidence. [49]
49. At [207]-[216].
Dr Parmegiani recorded his impressions of the appellant, as follows:

“[The appellant] was unable to provide a coherent account of the accident, or its aftermath. She became tearful and agitated, and she asked her daughter to take her home. Ms Falco paced around the examination room, wringing her hands.
…
She remained tearful and agitated during the interview. She often stood up and paced the room, demanding to go home. She found it difficult to focus on questions. She was oriented in time, place and person. She denied experiencing visual or auditory hallucinations. She did not express persecutory delusions.”

Dr Parmegiani diagnosed the appellant as suffering from a major depressive disorder with melancholic features. He considered that she was in urgent need of specialist psychiatric treatment, including inpatient admission to a psychiatric hospital. He recommended that she be admitted to a specialist psychiatric hospital for four weeks. His view was that the appellant needed full-time care and supervision, a service that was being provided by her family.
In a report of 27 January 2010, Dr Parmegiani recorded that the appellant had been unable to provide a history when he assessed her in February 2009. Dr Parmegiani noted that Dr McClure had experienced the same difficulty in December 2009 and that in consequence the appellant’s symptoms had been described to Dr McClure by her husband. Dr Parmegiani maintained his diagnosis that the appellant was suffering from a major depressive disorder. He accepted that her condition was complex and that there was a possibility that her depression was associated with chronic pain or with psychiatric symptoms that predated the onset of depression.

Dr Parmegiani assessed the appellant once again on 21 October 2010. He again recorded that she was too distressed to provide a coherent history and was agitated. Accordingly, the appellant’s daughter recounted her experiences with the appellant. Dr Parmegiani opined in his report of this assessment that the appellant’s symptoms and associated impairment had not changed since February 2009 and she was “one of the most impaired individuals” he had ever seen.
Dr Kaplan first saw the appellant on 4 December 2007. Curiously enough, he was apparently told that both the First and Second Accidents were “minor in that [the appellant] did not need to go to hospital [and] was able to leave the car afterwards”. Dr Kaplan considered that the appellant was pain-focused and had anxiety symptoms that were either unrelated to the Second Accident or sub-clinical. He also observed that although alert and fully oriented, she was a vague historian, creating the possibility that she was being evasive.
Dr Kaplan next saw the appellant on 3 March 2009, between her consultations with Dr Law in February and March 2009. Dr Kaplan stated that the appellant:

“was distressed from the start of the interview. She was mostly in tears of [sic] the time, could barely answer questions and appeared overwhelmed. She was offered a break to compose herself, or to discontinue the examination, but she refused although she still found it difficult to talk. When her daughter came in, she settled a little more.
…
For much of the interview she sat in the chair looking around, made poor eye contact and had difficulty making conversation. The impression was gained of poverty of thought and possible psychomotor retardation.”

Dr Kaplan gained the impression that the appellant was a “badly depressed woman with possible suicidal ideation”. He opined that over the previous year the appellant’s mood had slumped and she had a major depressive disorder requiring psychiatric management.

The Primary Judge’s Finding

The primary Judge carefully recounted the extensive history of the appellant’s consultations and assessments with the various psychiatrists. He contrasted the appellant’s presentation to Dr Law in February and March 2009 with her presentations at about the same time to Dr Parmegiani and Dr Kaplan. He found that the appellant had not presented to Dr Law in the severely disabled state that she presented to the two medico-legal psychiatrists. [50] That finding underpinned the conclusion, challenged by the appellant, that her presentation was the product of considerable exaggeration.
50. At [249].
In my view, the primary Judge was justified in finding that the appellant presented to Dr Law in a manner that was significantly different than her presentation to the medico-legal psychiatrists. A comparison of the medical reports shows that at about the time the appellant was presenting to Dr Parmegiani as too distressed to give a coherent history, she was apparently able to recount her symptoms to her treating psychiatrist in an informative manner. It is true, as Mr Sheldon pointed out, that Dr Law in his reports of 19 February 2010 diagnosed the appellant as continuing to suffer from a significant PTSD causally related to the two accidents, although he qualified this observation by noting that her prognosis was very guarded and that she was likely to have fluctuating symptoms over the next two or three years. It is also true that in some of the consultations with Dr Law the appellant or her husband or daughter reported some symptoms or behaviours to Dr Law similar to those reported to Dr Parmegiani and Dr Kaplan. But his Honour was clearly well aware of these matters and formed the view that they did not detract from his conclusion that the appellant’s presentation varied between her consultations with Dr Law and with the medico-legal psychiatrists. There was no error in his Honour’s approach.

Other Findings Relevant to Exaggeration

The primary Judge’s finding that the appellant considerably exaggerated her symptoms was not based solely on the differences in her presentation to the doctors. His Honour also took into account his unchallenged assessment of the credit of the appellant, Mr Falco and their daughter; the fact that the appellant and her family took no steps to act on the concerns expressed by the medico-legal psychiatrists; and the discontinuity of the appellant’s treatment by Dr Law.
Mr Sheldon pointed out that Dr Law’s notes revealed that in October 2010 he had discussed with the appellant and her husband the possibility of hospitalisation but that Mr Falco rejected the idea. In his cross-examination, Mr Falco explained that he could not envisage his wife being placed in a mental institution unless there were indications that she would harm others or herself. This evidence is not inconsistent with his Honour’s finding that the family did not act on the concerns expressed by the doctors, although Mr Falco’s evidence is capable of providing a reasonable explanation for the apparent inaction.
Subject to this qualification, I did not understand Mr Sheldon to submit that his Honour was not entitled to take into account the matters he identified. His Honour was clearly entitled to regard those matters as supporting his findings. In particular, his assessment of the credit of the appellant, Mr Falco and their daughter was more significant than Mr Sheldon was prepared to concede. As I have noted, much of the information communicated to the doctors came from Mr Falco and his daughter.
His Honour was also entitled to take into account concessions quite properly made by Dr Parmegiani, the only doctor who was cross-examined. The primary Judge extracted portions of the cross-examination in which Dr Parmegiani readily acknowledged that his opinion would be altered if the appellant and Mr Falco had exaggerated her complaints. As I have previously noted,[51] Dr Parmegiani also accepted that his opinion as to causation would be altered if the Second Accident was less severe than the appellant had claimed and if she had not become hysterical as an immediate consequence of the Second Accident (as she had also claimed).
51. See at [38] above.
Mr Sheldon made a separate submission that the primary Judge overlooked or paid insufficient attention to Dr Law’s opinion that the appellant sustained significant psychiatric disabilities in consequence of the accidents. His Honour recounted in considerable detail the content of Dr Law’s medical reports, including a report dated 5 March 2013 in which he recorded that at that time the appellant was visibly dejected and distressed, but not suicidal.
The primary Judge did not overlook or reject this evidence. His Honour took it into account in determining that although the appellant was not as severely disabled as she presented, she nonetheless had a significant psychiatric condition. This condition justified an award of $75,000 for non-economic loss and a finding that she needed seven hours per week of future attendant care services. In reaching these conclusions, his Honour rejected contentions advanced by each respondent that neither accident caused the appellant to sustain any compensable psychiatric injury. I therefore do not accept the submission that the primary Judge overlooked or paid insufficient attention to Dr Law’s diagnosis that the appellant was suffering from a significant psychiatric condition.

Conclusion

The appellant’s challenge to the primary Judge’s finding that she considerably exaggerated her symptoms fails. Nor do I accept the submission that his Honour’s assessment of the extent of the appellant’s psychiatric disabilities attributable to the accidents discloses appellable error.

The Cross-Appeals

Submissions

The respondents submit that the primary Judge erred in awarding the appellant any damages for past and future gratuitous care services. They contend that on the findings made by his Honour, the appellant did not satisfy the threshold requirement in s 141B(3) of the MAC Act that the services be required for at least six hours per week. The respondents do not dispute the primary Judge’s finding that as a result of the accidents the appellant’s need for gratuitous care services, assessed on a “global” basis, was seven hours per week. But they say that since his Honour apportioned responsibility equally to each respondent, he effectively found that the negligence of each respondent created a need in the appellant for gratuitous care services limited to 3.5 hours per week. On this basis, so the respondents argue, the appellant’s claim against each respondent cannot satisfy the statutory threshold and therefore the primary Judge erred in awarding her any damages in respect of gratuitous care services.
In oral argument, it was put to Mr Deakin QC, who appeared with Mr Hickey for Mr Aiyaz, that on one view of the facts the negligence of each respondent might be regarded as a concurrent cause of the appellant’s global need for gratuitous care services of seven hours per week. It was pointed out that his Honour’s reliance on the principles stated in SGIC v Oakley could be understood as indicating that the First Accident contributed to the appellant’s need for gratuitous care services by making her vulnerable to a psychiatric disorder and that the Second Accident also contributed to the appellant’s need for such services. This would not mean that the appellant would be entitled to double recovery in respect of the same loss,[52] but it might entitle her to judgment against each respondent for damages compensating her for the cost of seven hours of gratuitous care services per week.
52. Boncristiano v Lohmann [1998] 4 VR 82 at 89 (Winneke P, Charles and Batt JJA agreeing); Government Insurance Office of New South Wales v Aboushadi [1999] NSWCA 396 at [26] and cases cited there (Mason P, Meagher JA and Barr AJA agreeing).
The answer given by Mr Deakin and by Mr Rewell SC, who appeared with Ms Allan for Mr Falzon, was that the appellant made no submission to the primary Judge that each respondent should be held liable to her for the whole or a substantial part of the losses she had sustained. Whatever the basis for the primary Judge’s apportionment of equal responsibility to each respondent, that apportionment had not been challenged by either the appellant or the respondents. In essence, the appellant’s case before the primary Judge was that her disabilities were so serious that her need for gratuitous care services greatly exceeded the statutory threshold. On her case, it made no difference to her damages claim if each respondent was held liable to compensate the appellant for only one half of her need for gratuitous care services. She would still be entitled to compensation from each of them for the maximum amount permitted by s 141 of the MAC Act.
The appellant’s written submissions on the cross-appeals pointed out that s 141B of the MAC Act, unlike s 15(2)(b) of the Civil Liability Act 2002 (NSW), does not state that damages can be awarded for gratuitous attendant care services only if the court is satisfied that the need arose solely because of the injury to which the damages relate. Common law principles therefore apply and on those principles:

“the correct approach [is] to award the appellant her damages for past and future gratuitous assistance for 7 hours per week in full as against each [r]espondent consistent with common law rules of causation”.

In his oral submissions, Mr Sheldon contended that the Primary Judgment should be read as finding that each respondent was liable for the whole or substantially the whole of the damages sustained by the appellant and that his Honour’s equal apportionment of responsibility was only concerned with the respondents’ responsibility as between themselves. Mr Sheldon did not, however, seek leave to amend the notice of appeal to challenge the primary Judge’s apportionment of equal responsibility to each respondent for the appellant’s losses. Nor was any application made to amend the notice of appeal to contend that his Honour should have found that each respondent was concurrently liable to compensate the appellant for seven hours of gratuitous care services per week.

Reasoning

The Arguments at the Trial

Some background is necessary in order to understand the findings made by the primary Judge and his Honour’s reasons for dividing the damages award equally between the two respondents.
The appellant filed a statement of claim against each respondent in what might be described as a reasonably standard form, alleging negligence and providing particulars of injuries and disabilities. The statement of claim in respect of the Second Accident did not refer expressly to the First Accident, but inserted the word “exacerbated” when listing some particularised disabilities, such as “exacerbated difficulty engaging in pre-accident activities”.
The Statement of Particulars in respect of the First Accident was as follows:

“PARTICULARS OF CLAIM FOR PAST DOMESTIC ASSISTANCE
… A claim is made for … domestic assistance calculated from the date of this accident until 1 March 2004 at the rate of 7 hours per week at the rates prescribed under the Motor Accidents Compensation Act. The plaintiff was further injured in the subsequent motor accident on 1 March 2004 which increased her need for care. Her need since that time was initially 7 hours per week and by now it is 24 hours per week. The relative contribution of this accident for the plaintiff’s ongoing need for care will be a matter for determination in the proceedings which will be heard together with the proceedings arising out of the accident on 1 March 2004. A claim is made for domestic assistance from 1 March 2004 at 7 hours per week increasing to a claim at the date of trial of 24 hours per week.
PARTICULARS OF CLAIM FOR FUTURE DOMESTIC ASSISTANCE
By reason of her injuries the plaintiff has now reached the stage of suffering chronic physical and psychological injuries as a result of both accidents. She has an ongoing need for domestic assistance of 24 hours per week … This claim is made for the balance for the plaintiff’s life expectancy.”

The Statement of Particulars in respect of the Second Accident makes the claim for domestic assistance as follows:

“PARTICULARS OF CLAIM FOR PAST DOMESTIC ASSISTANCE
... Following the accident she required cared [sic] at the rate of 7 hours per week but unfortunately due to her deteriorating psychiatric state since that time she now requires care for 24 hours per week. A claim is made on that basis for past care at the rates prescribed under the Motor Accidents Compensation Act.
At the date of this accident the plaintiff was already suffering some ongoing injuries and disabilities following the motor accident which occurred on 1 December 2003 in which proceedings have been commenced which are to be heard together with this action.
PARTICULARS OF CLAIM FOR FUTURE DOMESTIC ASSISTANCE
By reason of her injuries the plaintiff has now reached the stage of suffering chronic physical and psychological injuries as a result of both accidents. She has an ongoing need for domestic assistance of 24 hours per week … This claim is made for the balance for the plaintiff’s life expectancy.”

It is not clear from the Statements of Particulars whether the appellant was claiming that she needed gratuitous care services for a total of 24 hours per week and that each respondent was liable to pay damages for the whole 24 hours of care she required (subject to the bar on double recovery). An alternative, although perhaps less likely interpretation is that the appellant was claiming to require 48 hours per week domestic assistance and that each respondent was liable to pay damages amounting to half the cost of providing such services.
At the trial, the parties were very much in dispute as to the appellant’s need for gratuitous care services and the responsibility of each respondent for any such need. Mr Aiyaz’s position was that if the appellant needed gratuitous care services, her need was not causally related to the First Accident. Mr Falzon’s position was that the appellant’s claims were grossly exaggerated and that, in any event, the Second Accident had not created a need for such services. If the appellant did have a need, so Mr Falzon’s counsel submitted, the need arose from stresses in the appellant’s life and was unrelated to the Second Accident.
The appellant’s approach was clearly formulated with the provisions of s 141B of the MAC Act in mind. Senior counsel then appearing for the appellant submitted that she required full-time domestic assistance after November 2006. He also submitted that “these accidents equally contributed to her current state”, but did not explain what this meant, except by observing that “[e]ither without the other, not much, both of them together, very serious”. Senior counsel suggested, perhaps optimistically, that the appellant required 80 hours of attendant care services per week. Since there were two separate accidents and two separate actions, the appellant was entitled to the maximum amount permitted under the legislation against each respondent.
Counsel for the appellant did not refer the primary Judge to SGIC v Oakley. That case was drawn to his Honour’s attention by counsel then appearing for Mr Falzon. The case was cited in answer to a submission made on behalf of Mr Aiyaz that the consequence of the First Accident had been exhausted when the Second Accident occurred and thus any psychiatric or other injury sustained in consequence of the later accident was wholly Mr Falzon’s responsibility. Counsel for Mr Falzon submitted that if the appellant suffered any psychiatric condition in consequence of the Second Accident, the condition was an aggravation of a pre-existing condition for which the First Accident was responsible.

The Primary Judge’s Findings

As has been seen, the primary Judge found that the appellant’s need for gratuitous care services was much less than her counsel had contended for. His Honour also rejected the respondents’ submissions that if the appellant did need such services, the need was not causally related to either the First or Second Accidents. The primary Judge then appears simply to have adopted the appellant’s submission that responsibility should be apportioned equally to each respondent. That submission had been framed on the basis that his Honour would find that the appellant needed full time care.
None of the parties adverted in their arguments at trial to the application of s 141B(3) of the MAC Act if the appellant’s need for gratuitous care services was that found by the primary Judge – that is, that she had a need for domestic care services attributable to both accidents, but her need was limited to seven hours per week. Presumably for this reason, his Honour entered judgment against each respondent for half of the damages due to the appellant for gratuitous care services without expressly adverting to the possible impact of s 141B(3) of the MAC Act on the orders he was proposing to make.
On the evidence before the primary Judge, it may have been open to the appellant to submit that Mr Aiyaz, in addition to Mr Falzon, was liable for all, or nearly all, of the psychiatric damage sustained by the appellant in consequence of the Second Accident. It will be recalled that the primary Judge applied the principles stated in SGIC v Oakley, which have since been followed in New South Wales. [53] The full passage from the judgment of Malcolm CJ in SGIC v Oakley is as follows: [54]

“where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”

Malcolm CJ observed that the second proposition covers what have been described as “increased vulnerability” cases. In these cases, the plaintiff does not recover the full damages resulting from the later accident, “but only those extra consequences of the second injury due to the existence of the first injury”. [55]

53. Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 at [22] and cases cited there (Mason P, Meagher JA and Barr AJA agreeing); Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 at [29]-[30] per curiam.

54. SGIC v Oakley at 67,577.

55. SGIC v Oakley at 67,578; Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 at [30] per curiam.

The Second Accident caused relatively minor physical injuries to the appellant but led to her developing a psychiatric condition. The primary Judge found that the First Accident predisposed the appellant to an increased psychological reaction to the Second Accident. [56] Consistently with the principles stated in SGIC v Oakley, it may have been open to the primary Judge to find that all or nearly all of the psychiatric damage sustained by the appellant in and after 2004 was causally related to the First Accident. The extent of the causal relationship would depend on his Honour’s findings as to how far the appellant’s psychiatric condition could be attributed to the vulnerability created by the First Accident. If his Honour did find a causal relationship between the First Accident and the appellant’s psychiatric condition, the finding would not preclude Mr Falzon also being held liable for the psychiatric damage on the ground that the Second Accident was a concurrent cause of that damage.
56. At [282].
Presumably because of the way the trial was conducted, the primary Judge did not address the extent to which the respondents were concurrently liable to the appellant for the psychiatric disabilities she sustained. Had his Honour done so, it is possible that he would have found that both respondents were concurrently liable for some or all of the damages sustained by the appellant. The precise extent would depend on how far the appellant’s vulnerability to psychiatric damages created by the First Accident exacerbated the psychiatric conditions triggered by the Second Accident.
Whatever findings might have been made had the trial taken a different course, the important point for present purposes is that the primary Judge did not make a finding that Mr Aiyaz and Mr Falzon were concurrently liable for the same damage sustained by the appellant. He specifically “apportioned” damages for gratuitous care services separately to each respondent and entered judgment against each for one half of the total damages awarded to the appellant in respect of her need for gratuitous care services. Having regard to these matters the Primary Judgment cannot be read as finding that each Respondent was liable for any more than one half of the appellant’s entitlement to damages for gratuitous care services or that each was concurrently liable for the psychiatric disabilities sustained by the appellant. It follows that the primary Judge found that each respondent was liable to compensate the appellant for 3.5 hours of gratuitous care services per week.

The Appellant’s Claim for Attendant Care Services

Section 141B(3) of the MAC Act provides that no compensation is to be awarded for attendant care services unless the services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months. I did not understand Mr Sheldon to contend that the appellant satisfies s 141B(3) because her need for gratuitous care services exceeds six hours per week, notwithstanding that neither respondent is liable to compensate her for a need that exceeds 3.5 hours per week. In any event, I do not think that such a contention could succeed.
Section 141B is in Chapter 5 of the MAC Act. Section 122(1), which has been present from the commencement of the MAC Act, states that Chapter 5 applies:

“to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.”

Section 123 provides that a court cannot award damages to a person in respect of a motor accident contrary to Chapter 5.

The prohibition in s 141B(3) is directed to an award of damages for injury caused by the fault of a particular driver or owner of a vehicle. Damages for gratuitous care services can only be awarded in respect of the injury if the fault of that driver or owner caused a need for services provided or to be provided for at least six hours per week. It is not open to a plaintiff to aggregate needs created by separate and distinct breaches of duty by different defendants in order to satisfy the threshold. [57]
57. See Muller v Sanders (1995) 21 MVR 309 at 310 (Handley JA, Meagher and Sheller JJA agreeing).
As I have noted, the appellant’s notice of appeal does not seek a finding that the respondents were concurrently liable to compensate the appellant for her need for gratuitous care services. Nor has the appellant challenged his Honour’s “apportionment” of liability between the respondents. Had such challenges been made, questions may have arisen as to whether the appellant was entitled to raise these issues on appeal. An application for leave to amend may well have been resisted on grounds relating to the conduct of the trial. In any event, in the absence of an application for leave to amend, the cross-appeals must be resolved on the basis of the findings made by the primary Judge.
For the reasons I have given, the primary Judge was in error in awarding damages against each respondent in respect of the appellant’s need for gratuitous care services. On his Honour’s findings, s 141B(3) of the MAC Act precludes an award of damages for the gratuitous care services against each respondent. The cross-appeals must therefore be allowed.

Orders

The appeal must be dismissed and the cross-appeals allowed.

I propose the following orders:

Matter No 2014/146669 (Falco v Aiyaz)

Appeal dismissed.

2. The appellant pay the respondent’s costs of the appeal.

3. Cross-appeal allowed.

4. Set aside the judgment entered on 24 April 2014 in favour of the appellant.

5. In lieu thereof, enter judgment for the appellant in the sum of $5,805.25.

6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW).

Matter No 2014/146657 (Falco v Falzon)

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of the appeal.

3. Cross-appeal allowed.

4. Set aside the judgment entered on 24 April 2014 against the respondent.

5. In lieu thereof enter judgment for the appellant in the sum of $81,240.10.

6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW ).

I note that these orders assume that the judgments entered against the Respondents were for the amounts stated earlier in this judgment. [58] If that assumption is incorrect, the parties should file short minutes of order correcting the figure in Order 5 in each matter.

**********

58. See at [24]-[25] above.

Endnotes

Decision last updated: 20 July 2015

Actions

Download as PDF Download as Word Document

Citations

Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202

Most Recent Citation

Scattergood v Commonwealth [2022] TASSC 21

Cases Citing This Decision

6

Buestami v Allianz Australia Finance Ltd [2025] NSWSC 465

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183

Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031

Cases Cited

0

Statutory Material Cited

7

Medium Neutral Citation:	Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202
Hearing dates:	29 May 2015
Decision date:	17 July 2015
Before:	Macfarlan JA at [1]; Emmett JA at [2]; Sackville AJA at [19]
Decision:	Matter No 2014/146669 (Falco v Aiyaz) 1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal. 3. Cross-appeal allowed. 4. Set aside the judgment entered on 24 April 2014 in favour of the appellant. 5. In lieu thereof, enter judgment for the appellant in the sum of $5,805.25. 6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW). Matter No 2014/146657 (Falco v Falzon) 1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal. 3. Cross-appeal allowed. 4. Set aside the judgment entered on 24 April 2014 against the respondent. 5. In lieu thereof enter judgment for the appellant in the sum of $81,240.10. 6. The appellant, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	MOTOR ACCIDENTS COMPENSATION – assessment of damages - appellant injured in two separate motor vehicle accidents – appellant developed psychiatric condition - both proceedings were heard together in District Court – primary Judge found appellant required seven hours of domestic assistance - damages apportioned 50:50 between the two respondents – whether primary Judge erred in assessment of non-economic loss and need for domestic assistance – whether threshold requirement for awarding damages for past and future gratuitous care prescribed by s 141B(3) of the Motor Accidents Compensation Act 1999 (NSW) satisfied
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 15(2)(b), 31 Civil Liability Legislation Amendment Act 2008 (NSW), Sch 2.2 [1]; Sch 2.2 [3] Civil Procedure Act 2005 (NSW), s 56(1) Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW), Sch 2 [3] Motor Accidents Compensation Act 1999 (NSW), ss 122(1), 141B(3); Sch 5 [34] Suitors’ Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited:	Boncristiano v Lohmann [1998] 4 VR 82 Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 Falco v Aiyaz; Falco v Falzon (District Court, 24 April 2014, unrep) Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 Muller v Sanders (1995) 21 MVR 309 State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003 (Supreme Court of Western Australia, Full Court)
Category:	Principal judgment
Parties:	Matter No 2014/146669 Juliana Falco (Appellant) Mohammed Aiyaz (Respondent) Matter No 2014/146657 Juliana Falco (Appellant) Victor Falzon (Respondent)
Representation:	Counsel: R Sheldon SC / Ms E Welsh (Appellant) P Deakin QC / C Hickey (Respondent Aiyaz) KP Rewell SC / Ms CJ Allan (Respondent Falzon) Solicitors: Brydens Law Office (Appellant) Curwoods Lawyers (Respondent Aiyaz) Moray & Agnew (Respondent Falzon)
File Number(s):	2014/146669 and 2014/146657
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Jurisdiction Date of Decision: 24 April 2014 Before: Bozic SC DCJ File Number(s): 2010/147045 and 2010/147073