Gable v Carlyle

[2001] NSWCA 134

CITATION:	Gable v Carlyle [2001] NSWCA 134
FILE NUMBER(S):	CA 40835/99
HEARING DATE(S):	03/05/01
JUDGMENT DATE:	18 May 2001
PARTIES :	Peter Robert Gable v Terrence Carlyle
JUDGMENT OF:	Meagher JA at 1; Hodgson JA at 2; Ipp AJA at 8

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3201/97
LOWER COURT JUDICIAL OFFICER :	Johnson ADCJ

COUNSEL:	F McAlary QC/N Abadee (Appellant) P Webb QC/B Smith (Respondent)
SOLICITORS:	G H Healey & Co (Appellant) Sparke Helmore (Respondent)
CATCHWORDS:	NEGLIGENCE - Motorcycle accident - Contributory negligence - Apportionment of damage - DAMAGES - Measure of damages - Future economic loss - lost earning capacity - NEGLIGENCE - Damages - Causation - whether injury caused by collision or by later incident - COSTS - Indemnity costs - whether should be ordered - weight to be given to Calderbank offer - INTEREST - Claim under Motor Accidents Act 1988 - whether award of interest available - s 73. ND
LEGISLATION CITED:	Motor Accidents Act 1988 Suitors Fund Act 1951
DECISION:	(1) Appeal dismissed; (2) Cross-appeal upheld only on the interest point; (3) Judgment sum reduced accordingly to $136.437.21; (4) Appellant to pay costs of appeal; (5) No order as to costs in cross-appeal.

CA 40835/00

DC 3201/97

MEAGHER JA

HODGSON JA

IPP AJA

Friday 18 May 2001

PETER ROBERT GABLE v TERRENCE CARLYLE

Facts:

The appellant was injured in a motorcycle accident when he was hit by the respondent whilst both motorcycles were travelling in the breakdown lane of a freeway. The appellant suffered back, chest and knee injuries and was finally awarded $148,083.60 after a reduction of 40% for contributory negligence. Of these damages an amount of $68,816.00 was for loss of future earning capacity. The appellant appealed these findings on contributory negligence and the calculation of loss of future earning capacity.

The respondent also cross-appealed in relation to the findings that the appellant’s back injury was sustained in the collision and not at another time, and against the orders made in relation to interest and costs.

HELD
Contributory Negligence
(i) Per Ipp AJA, Meagher JA and Hodgson JA agreeing.

It was submitted in regard to contributory negligence that, the trial judge erred by finding that the appellant’s acts in moving into the breakdown lane were proof of negligence, and that the appellant had failed to keep a proper lookout, and finally that the trial judge did not examine all the relevant circumstances when assessing the apportionment of damages. The finding that the appellant moved into the breakdown lane was unsatisfactory and this led to the inference that the appellant also failed to keep a proper look out. The trial judge considered all the relevant circumstances, and whilst the apportionment for contributory negligence was relatively high, it was within the appropriate range. No error was disclosed.

Assessment of Damages
(ii) Per Ipp AJA, Meagher JA and Hodgson JA agreeing.

The findings as to loss of future earning capacity that the loss should be assessed at $100 per week less 15% for vicissitudes were reasonable and were supported by evidence adduced by the appellant at trial.

Cross-appeal as to back injury and interest
(iii) Per Ipp AJA, Meagher JA and Hodgson JA agreeing.

In relation to the cross appeal three issues were raised; first, the findings as to the cause of the appellant’s back injury were challenged, second, it was argued that the trial judge failed to give adequate consideration to a Calderbank offer, and third, the calculation of interest under the Motor Accidents Act 1988 was erroneous.

(i) The evidence of the doctors and the appellant’s witnesses was consistent with the finding that the back injury was caused by the collision and not a later accident, this finding was open to the trial judge and there was no error.

(ii) The respondent made a Calderbank offer, which exceeded the judgment amount, one week before the trial commenced and it was contended that the appellant should pay indemnity costs from the date of the offer. The trial judge held that the respondent should pay the appellant’s costs up to the date of the offer and after that no order as to costs should be made. This finding gave due weight to the existence of the Calderbank offer and there was no error.

(iii) Interest was calculated under s 73(4) Motor Accidents Act 1988. The trial judge awarded interest based on s 73(4)(a)(i) however this was in error as the trial judge wrongfully considered the adequacy of an earlier offer and finding that it was inadequate he determined that no valid offer had been made. The fact an offer was made operated to put the situation outside those contained in s 73 and as such no interest was payable. The cross-appeal on this point succeeds.

In relation to the awarding of costs the appellant should pay the respondent’s costs for the cross-appeal and preparation of submissions on the issue of interest and should have a certificate under the Suitors Fund Act 1951. Further, the appellant should pay the respondent’s costs of the appeal, except the preparation of written submissions, amounting to half of the total costs of hearing the appeal and cross-appeal.

1988

1951

ORDERS

1. Appeal dismissed.
2. Cross-appeal upheld only on the interest point.
3. Judgment sum reduced accordingly to $136,437.21.
4. Appellant to pay costs of appeal.
5. No order as to costs in cross-appeal.

CA 40835/00

DC 3201/97

MEAGHER JA

HODGSON JA

IPP AJA

Friday 18 May 2001

PETER ROBERT GABLE v TERRENCE CARLYLE

JUDGMENT

1    MEAGHER JA: I agree with Ipp AJA.

2    HODGSON JA: I agree with Ipp, AJA, except as regards the costs of the proceedings in the Court of Appeal.

3    The respondent succeeded on the cross-appeal on the question of interest, which was conceded at the hearing. In my opinion, the respondent is prima facie entitled to be paid costs associated with the filing of the Notice of Cross-Appeal and the costs of preparing the written submissions on this point; but not, on the basis of success on this question, to any part of the costs associated with preparation of appeal books or with the hearing, to which this question made no appreciable contribution. The appellant should have a certificate under the Suitors Fund Act in respect of these costs.

4    As regards the remainder of the costs of the appeal and cross-appeal, all other challenges to the trial judge’s decision failed, and the issues on which the appellant failed took approximately the same time at the hearing of the appeal as the issues on which the respondent failed. However, having regard to the pre-trial Calderbank offer, it seems quite probable that if the appellant had not appealed, the respondent would not itself have appealed, at least on the grounds on which it failed.

5    What follows from this, in my opinion, is that prima facie the appellant should pay the respondent’s general costs of the appeal, and the respondent should pay, the additional costs incurred by the appellant in meeting the issues on the cross-appeal on which the respondent failed. Looking at the totality of the written submissions, apart from those on the interest point, it seems to me that the costs payable on each side would broadly cancel out. As regards the costs of the hearing, the effect of doubling the issues contested and doubling the length of the hearing (which was in any event concluded well within one day) can I believe fairly be regarded as increasing the costs of the hearing by about one quarter; and the nett effect of an order that the appellant pay three-quarters of the respondent’s costs of the hearing and that the respondent pay one-quarter of the appellant’s costs of the hearing would be that the appellant would bear the whole of its own costs and about one-half of the respondent’s costs. The costs of preparing the appeal books were not I believe significantly increased by the cross-appeal, and they should be borne by the appellant.

6    Accordingly, the costs orders I would support are as follows:

1. Appellant to pay so much of the respondent’s costs of the cross-appeal as relate to the filing of the cross-appeal and the preparation of written submissions on the interest question, and to have a certificate under the Suitors Fund Act in respect of these costs, if otherwise entitled.
2. Appellant to pay the respondent’s costs of the appeal, excluding costs associated with preparation of written submissions, and specified, as regards costs associated with the hearing of the appeal, as being one-half of the total costs associated with the hearing of the appeal and cross-appeal.

7    Although these orders are more complicated than those proposed by Ipp AJA, in my opinion they would be simpler to give effect to and would more fairly reflect the outcome on the merits of the proceedings in the Court of Appeal.

8    IPP AJA:

The issues in the appeal and cross-appeal

9    This appeal and cross-appeal concern the appellant’s claim for damages for personal injuries arising out of a collision in which he was involved on 9 April 1991.

10    At about 4.55 pm that day the appellant was riding his motor cycle on the F4 freeway, travelling west at about 45 kilometres an hour in the left lane of traffic. He moved across from his left lane into the breakdown lane so as to get a view of the traffic which lay ahead. The respondent was himself, at the time, riding a motor cycle in the breakdown lane, travelling west at between 60 to 70 kph, overtaking vehicles on their inside. The appellant did not see the respondent and his motor cycle collided with the respondent’s motor cycle.

11    The respondent did not dispute that he had been negligent.

12    The trial judge, Johnson ADCJ, held that the appellant was guilty of contributory negligence to the degree of 40% and reduced the appellant’s damages accordingly. These findings are the subject of appeal.

13    The appellant claimed that, in the collision, he sustained a serious back injury, a brain injury, and injuries to his chest and left knee. Johnson ADCJ did not accept that the appellant had sustained a brain injury as he alleged, but found that the appellant had suffered the other injuries claimed.

14    His Honour awarded the appellant $246,806 in respect of damages and reduced that to $148,083.60 in the light of his finding of contributory negligence to a degree of 40%.

15    As part of the award of damages, Johnson ADCJ assessed the appellant’s loss for loss of capacity to earn in the future as being $68,816. The appellant contends that this was too low and appeals against the finding in regard to this head of damage.

16    The respondent cross-appeals by leave in regard to the finding by Johnson ADCJ that the appellant sustained an injury to his back in the collision. Leave was necessary as the respondent was out of time in filing his cross-appeal. The registrar granted leave on the basis that the ground of appeal relating to this issue should be limited to the contention that the learned judge erred in finding that the respondent had established a back injury sustained in the accident of 9 April 1991 “and not in the incident of October 1991”.

17    The respondent seeks to review the registrar’s decision on the ground that the onus lay on the appellant to establish his case and there was no onus on the respondent to establish that the back injury was caused in another accident.

18    The parties accepted that the cross-appeal on this issue should be argued on the grounds contended for by the respondent (that is, not limited as required by the registrar) and the result of the review should depend on the merits of the cross-appeal. There is therefore no further need to refer to the review.

19    The respondent also sought leave to cross-appeal in regard to the orders for interest and costs made by Johnson ADCJ. It was accepted that leave should depend on the merits of the respondent’s contention on these issues.

20 In regard to interest, the respondent contends that Johnson ADCJ misconstrued s 73(4)(a) of the Motor Accidents Act 1988 in ordering that interest be paid on the damages awarded.

21    In regard to costs, the cross-appeal concerns the order made by Johnson ADCJ that the respondent pay the appellant’s costs of the proceedings up to 19 October 1998 (the date of a Calderbank offer made by the respondent) and that, thereafter, there be no order as to costs. The respondent contends that his Calderbank offer should have led the learned Judge to order that the appellant pay his costs as from 19 October 1998 on an indemnity basis.

Contributory negligence

22    Mr McAlary QC, senior counsel for the appellant, in essence made three points in regard to this issue. Firstly, he submitted that Johnson ADCJ wrongly treated the appellant’s acts in moving into the breakdown lane as proof of negligence. Secondly, he submitted that it could not be said that the appellant had failed to keep a proper lookout for traffic in the breakdown lane before moving into it. Thirdly, he submitted that in assessing the apportionment the learned judge did not properly examine all the relevant circumstances.

23    At trial, the fundamental dispute in regard to liability was whether the point of impact was in the breakdown lane (as the respondent asserted), or in the appellant’s lane (as the appellant contended). Johnson ADCJ found that the point of impact was in the breakdown lane. There is no challenge to this finding.

24    It follows that the appellant moved out of his lane into the breakdown lane. It was not disputed that this was an illegal act. His Honour said in this regard:

“On the [appellant’s] own account, the traffic was very heavy and it would be reasonable for the [appellant] to anticipate that a vehicle or vehicles may utilise the breakdown lane in these circumstances, albeit illegally. Further, by entering the breakdown lane (as I have held he did), the [appellant] was himself riding illegally. It might also be anticipated that emergency vehicles may use the breakdown lane, especially if there is a heavy traffic flow in the traffic lane. I consider that there is a significant degree of contributory negligence in entering the breakdown lane without first checking if there was any vehicle in that lane.”

25    It is apparent from these remarks that the learned Judge took into account the respondent’s illegal act in entering the breakdown lane as a piece of evidence that supported a finding of contributory negligence. Seen as a whole, his Honour’s remarks do not bear out the contention that he treated the finding of illegality as automatically establishing that the appellant was guilty of contributory negligence. Rather, his Honour had regard, principally, to the simple fact that the respondent moved out of his lane of traffic into the breakdown lane at a time when it was dangerous to do so and, by inference, without keeping a proper lookout. In my view, his approach was entirely proper.

26    The argument that there was no basis to infer that the appellant did not keep a proper lookout cannot be sustained. While travelling at 45 kilometres an hour, the appellant, upon moving into the breakdown lane, collided with the respondent who was travelling at between 60 to 70 kilometres per hour. The appellant did not see the respondent. No explanation was advanced for his failure to do so. The only inference that arises is that he did not look properly in his rear view mirror or otherwise to his rear before moving into the breakdown lane.

27    From a consideration of his Honour’s reasons it is quite apparent that he had regard to all relevant circumstances in making the apportionment that he did. No error of principle can be discerned from his approach.

28    I think that the degree of contributory negligence attributed to the appellant was high, and I may not myself have come to the same conclusion, but that is not to the point. In my view the finding of apportionment of 60/40 was within the appropriate range warranted by all the relevant circumstances and this Court should not interfere.

Loss of future earning capacity

29    The main injury suffered by the appellant was to this back. In 1996 a slight bulging of the L4/5 disc and a right sided L5/S1 disc protrusion were observed. Initially treatment by way of injection was attempted but this did not meet with success. Thereafter, in February 1996, a right sided lumbo-sacral discectomy decompressing the right S1 nerve root was performed. According to the appellant, this relieved the pain in his legs to some extent but the lower back pain became worse.

30    The appellant also sustained a significant injury to his knee, but it was not suggested that this injury was of major significance to his loss of future earning capacity.

31    The appellant was born on 14 December 1962. He was twenty eight years old when the collision occurred. At the time of the trial he was nearly thirty six years old.

32    The appellant completed his high school education in Denmark and in 1978 obtained the Danish equivalent of a Higher School Certificate. In about 1979, he returned to Australia and was employed for a year in a men’s outfitting store. For some seven years to 1987 he was employed by the State Rail Authority as a chargeman. This involved him being in charge of a group of men who loaded and unloaded containers off trains. The appellant then commenced work as a storeman with N V Pratt Safety Systems, for whom he worked for about a year. Thereafter, in the first part of 1989, he commenced his own business involving photography and photo journalism. After the collision the appellant was involved in the making of two video films. He sold the first but made no profit and the video has not been shown. The second video has not been sold.

33    The precise income earned by the appellant prior to the collision is not entirely clear. There was evidence that his nett weekly income in 1988 was $164, in 1989 $260, in 1990 $261 and in 1991 he sustained a loss, when operating his own business. Other evidence suggested that before the accident he earned approximately $300 per week with N V Pratt.

34    It was not suggested that the appellant could have earned more in a job which required him to lift or bend (which, by reason of the collision he could no longer do) than he could in a clerical capacity. It is also not submitted that his loss of earning capacity should be considered by reference to any diminution in his capacity to earn from doing photographic work (presumably, because his photographic work in the past had not proved to be profitable).

35    The appellant’s case in regard to loss of future earning capacity was put simply on the basis that he was an intelligent, energetic, hard-working man who, but for the collision, would have earned at least the Australian minimum wage. Thus, it was submitted, his loss of future earning capacity should have been calculated by reference to that average. This is not how the loss was calculated by his Honour.

36    Johnson ADCJ, in determining past economic loss, adopted a notional earning capacity of $350 per week as a storeman from the time of the collision. He obtained this sum by reference to the Storeman and Packers (General) State Award. He concluded that the appellant had a continuing earning capacity of $200 per week and therefore had suffered a loss of $150 per week. He awarded $62,400 for past economic loss. The appellant makes no complaint about this assessment. I mention the calculations as to past loss as they bore upon the way his Honour assessed future loss.

37    In dealing with loss of future earning capacity his Honour approached the assessment of damages by reference to calculations contained in a document which was tendered as Exhibit L at the trial by the appellant himself as one of three alternative methods of calculating economic loss.

38    Exhibit L assessed future economic loss also by reference to the Storeman and Packers (General) State Award. His Honour observed that on the basis of Exhibit L, the appellant claimed that, but for the accident, he would have earned $350.60 per week less 15% for vicissitudes which, having regard to the appropriate multiplier, resulted in a figure of $241,268. His Honour, in effect, held that the appellant’s retained earning capacity for the purposes of calculating loss of future earning capacity should be assessed at as being $250 per week, deducted this sum from the notional earnings of $350 per week and arrived at a figure of $100 per week. He accordingly assessed loss of future earning capacity on the basis of a loss of $100 per week less 15% for vicissitudes.

39    In essence, the appellant made two complaints in regard to this way of determining loss of future economic capacity. Firstly, it was submitted that his Honour should not have found that the appellant’s retained earning capacity had increased from $200 per week, utilised in calculating past economic loss, to $250 per week. Secondly, it was submitted that his Honour erred in adopting $350.60 per week as the ceiling of the appellant’s potential income. It was submitted that, on the evidence, the earning of the average Australian male was $822 per week and, after allowing for taxation, this sum should have been applied in determining the appellant’s future loss.

40    In my view, however, it was open to Johnson ADCJ to utilise an increased retained earning capacity for calculating future economic loss. There was some evidence that by October 1998 the appellant had “to some extent improved in his pain management”. In addition, and more importantly, the retained earning capacity of $200 per week used in calculating past economic loss took into account the fact that for some period after the collision the appellant had no capacity to earn and his capacity to earn gradually improved thereafter until the time of the trial. There was no reason for his Honour to take into account such a progressive improvement from zero upwards when calculating future economic loss. Accordingly, the figure adopted by his Honour of $250 per week was, in my view, reasonable.

41    Moreover, despite the submissions made on behalf of the appellant as to the earnings of the average Australian male, there was evidence before his Honour that at the time of the collision the nett average earnings in New South Wales were $500 per week and, at the time of the trial were $600 per week. It is true that the appellant appears to be an intelligent, hardworking and industrious person, but his past earnings in my view justified the trial judge in fixing upon $350.60 per week as the earnings by which loss of future earning capacity was to be measured. His Honour was no doubt fortified in this view by the fact that the amount of $350.60 came from the appellant himself, that is, from Exhibit L.

42    On the evidence, the appellant’s reduced earning capacity in the future of $100 per week, as determined by his Honour, was a reasonable amount. In the circumstances, I would dismiss the appeal relating to the award for loss of future earning capacity.

The back injury

43    I now turn to the cross-appeal in relation to the finding that the appellant’s back injury was caused by the collision of 9 April 1991.

44    In finding for the appellant on this issue, Johnson ADCJ relied on the evidence of the appellant himself, his fiancee (Ms Penfold), and his brother (Mr David Gable). Ms Penfold testified that in the winter of 1991 (that is, before the October 1991 accident) the appellant complained of back pain and that his legs were getting numb. Mr Gable testified that he noticed the appellant’s back problems in the first or second month after the April 1991 accident. His Honour considered that Ms Penfold and Mr Gable “were honest witnesses who were seeking to give truthful answers to the Court”. He was satisfied that their evidence on this issue was reliable and on that basis found that the appellant’s back injury was caused by the April 1991 collision.

45    The respondent criticises these factual findings and asserts that there was overwhelming evidence to the contrary. I shall summarise the evidence on which the respondent relies on this issue.

46    In a report by Dr Teychenne, a neurologist, (which was undated but apparently given in approximately September 1985) reference was made to a motor cycle collision in 1982 in which the appellant was involved. In this report Dr Teychenne noted:

“He may have injured his lower lumbar spine at the time of the accident because he noted a numbness and pins and needles in the anterior aspect of both hips. This appeared to be in the L2/3 dermatomes. This was often associated with pain over the back particularly over L3, L4 vertebrae.”

The report also referred to the appellant experiencing pain over the L3, L4 vertebrae when extending his spine.

47    Dr Teychenne’s report was principally concerned with a head injury which the appellant had suffered in the 1982 collision. The appellant had given a history to Dr Teychenne of loss of consciousness and memory loss. He also told Dr Teychenne that since the accident “his whole personality” had changed. Dr Teychenne concluded that the appellant had sustained a significant head injury with clinical evidence that he suffered brain damage and observed:

“The head injury basically ruined his future employment as well as his future sporting activities. He now works in a low level job sorting out parcels. It’s obvious that prior to the accident he was highly intelligent and should have been in an executive position.”

48    In a report by Dr Sidney Smith, dated 18 July 1986, reference was made to pain suffered by the appellant in the lower back in June 1985. This appears to be referrable to the accident that occurred in 1982 as Dr Smith referred to Dr Teychenne’s report where the observation was made that the appellant was suffering lumber pain. Dr Smith also referred to the appellant’s problems with his memory and a change in his “intelligence”.

49    The ambulance report after the collision of April 1991 noted injuries to the appellant’s left knee, neck and abdomen but made no reference to any injury to his back or to his head or to loss of consciousness. The hospital notes and discharge summary were to the same effect, as was the police accident report.

50    In August 1991 the appellant submitted his motor accident personal injury claim form and made no reference to any injury to his back (or to his head).

51    At trial, notes by general practitioner, Dr Guthrie, were tendered in evidence. Those notes referred to a consultation in June 1991 from which it is apparent that the appellant then consulted Dr Guthrie about problems that seemed to relate to influenza. The notes made no reference to any back of head injury.

The notes also referred to a consultation on 8 October 1991 and recorded that over a weekend, while the appellant was riding his motor cycle, he went over a pothole and jarred his back. According to the notes the appellant experienced “severe pain in his lumbar and sacral spine with pain down the backs of both legs and paraesthesia in his left foot.” The notes recorded Dr Guthrie’s diagnosis of “sciatica disc prolapse”. Dr Guthrie recommended that the appellant undergo radiological investigation to his spine.

52    On 12 May 1992, the appellant for the first time complained to a medical practitioner, Dr Burke, that the collision of April 1991 caused him to suffer injuries to his lower back (as well as to his knee and neck).

53    Thereafter, Dr Bodel, an orthopaedic surgeon, reported:

“[T]he patient was involved in a motor cycle accident on 9.4.91. He gives no history of any other accident or injury but I am a little surprised that with the degree of disc pathology seen on x-ray, he was asymptomatic in regard to his back for nearly a month after the accident”.

54    When opening the case for the appellant at trial, senior counsel for the appellant put the case on the basis that the appellant first began to feel pain from his back after he became more mobile once he began to recover from his injuries. The appellant, himself, at times, however, stated that he experienced pain in his back immediately after the collision but at other times stated that he only experienced pain when he became more mobile.

55    Mr Webb QC, senior counsel for the respondent (who did not appear at the trial) submitted that, in the light of the evidentiary material that I have recounted, Johnson ADCJ should not have accepted the evidence of the appellant, Ms Penfold and Mr Gable. Mr Webb submitted that this was not a case where the trial judge was influenced by the demeanour of witnesses. He submitted that the issue did not involve any advantage which an appellant court might have over the trial judge who sees and hears the witnesses.

56    In the course of his submissions, Mr Webb asserted that the evidence of Ms Penfold and Mr Gable as to the times when they noticed the appellant experiencing pain in his back and when he complained about back pain was vague and unreliable. He submitted that Johnson ADCJ should not have accepted their testimony.

57    I do not think it necessary to repeat the relevant evidence given by Ms Penfold and Mr Gable verbatim in these reasons. Suffice it to say that, from an examination of the transcript, I am satisfied that Ms Penfold and Mr Gable were able to fix the relevant times with some certainty and, according to them, the appellant was suffering from pain in his back after the April 1991 accident and before the accident of October 1991.

58    Mr Webb drew attention to the fact that Ms Penfold and Mr Gable testified about a change in the appellant’s personality after the April 1991 collision but, nevertheless, Johnson ADCJ found that that collision did not cause the appellant to suffer brain damage. His Honour said in this regard:

“In contrast to the evidence of back injury, I do not consider that substantial weight can be attached to the evidence of Ms Penfold and Mr David Gable on this issue. This is because the 1985 reports of Dr Teychenne suggest the existence of symptoms in 1985 similar to those complained of by the plaintiff after 1991. Further, the evidence of Dr Smith serves to explain the moodiness and aggression which were observed by Ms Penfold and Mr David Gable in the plaintiff after April 1991. It is reasonably explicable that these are manifestations of the level of pain being experienced by the plaintiff and the strong pain-killing medication which he was taking. Further, it is noteworthy that Dr Burke, the plaintiff’s general practitioner since 1992, did not refer the plaintiff for any brain injury assessment. Dr Burke knew the plaintiff socially as well as professionally. The plaintiff impressed Dr Burke as being intelligent but moody. Dr Burke thought that the plaintiff’s behaviour was related to his medication.

It is apparent from his Honour’s remarks that the reason for his decision not to attach “substantial weight” to the evidence of Ms Penfold and Mr Gable on the issue of whether the appellant sustained brain damage in the April 1991 collision was not based on any disbelief on his part as to their evidence or a view that their evidence was unreliable on this aspect. Rather, his Honour accepted that the moodiness and aggression they observed after April 1991 were manifestations of the level of the appellant’s pain and the medication which he was taking. I do not regard the findings of the learned judge that the April 1991 collision did not cause brain damage as reflecting adversely on the credibility of Ms Penfold and Mr Gable.

59    There is nothing inherently incredible in the evidence of Ms Penfold and Mr Gable, and Mr Webb did not point to any particular aspects of their evidence which constituted inconsistencies of any kind. There was nothing in the nature of their evidence which should have precluded the learned judge from relying on it.

60    I turn therefore to the evidence on which Mr Webb relied for his submission that the evidence refuting the testimony of Ms Penfold and Mr Gable was so overwhelming that it should not have been accepted by the learned judge.

61    I would note, at the outset, that Johnson ADCJ, in his reasons, referred, in substance, to all the important matters on which Mr Webb relied, and dealt with them.

62    Although Dr Teychenne’s report was potentially of considerable relevance to whether the back injury had been caused by an accident in 1982, and not the April 1991 accident, the way in which this issue was dealt with at trial materially diminishes it in significance. The difficulty for the respondent at this stage is that, at the trial, no attempt was made to suggest that the back injury occurred in 1982. As his Honour records:

“The [respondent] submitted that the [appellant’s] back injury was referrable to the October 1991 incident and not the 9 April 1991 accident”.

63    Although the appellant was fully cross-examined about his vist to Dr Teychenne in relation to his head injury in 1982, the cross-examination about Dr Teychenne’s references to a back injury in 1982 was perfunctory, to say the least. The appellant was asked whether he had problems with his back in 1985 (to which he answered that he could not recall) and it was put to him that his back did not cause him any significant pain or discomfort until the April 1991 accident (to which proposition he agreed). The appellant was not asked whether he had sustained a back injury in the 1982 accident (and it was not put to him that he had done so) and if so what the extent of that injury was. He was not asked if he told Dr Teychenne that he had hurt his back in an accident in 1982.

64    In the circumstances, little weight can be attached to Dr Teychenne’s report insofar as it is said to apply to the issue whether or not the appellant sustained a back injury in the collision of April 1991.

For the same reasons the report of Dr Smith is of little significance on this issue.

65    At trial it was submitted on the appellant’s behalf that when the ambulance and hospital records were completed the appellant was in significant pain from a number of injuries and was receiving strong pain killing medication. It was also submitted that the back injury would have been more likely to have manifested itself in pain once the appellant had been discharged from hospital and had commenced to move around. The learned judge appears to have accepted these submissions. He was entitled to do so and I do not think that he can be criticised for this.

66    The strongest piece of evidence in the respondent’s favour on this issue was Dr Guthrie’s notes. There are a number of factors, however, which detract from the force of this evidence.

67    As regards Dr Guthrie’s note of the consultation on 23 June 1991, the cross-examination of the appellant as to what occurred on that date was virtually non-existent. Moreover, the note as to what occurred on 23 June makes no reference to the other injuries from which the appellant then admittedly suffered. I do not think that any inference can be drawn from the note in regard to the June 1991 visit.

68    The fact that the appellant consulted Dr Guthrie on 8 October 1991 about an injury to his back sustained when his motor cycle went over a pot hole is not inconsistent with the appellant having earlier sustained a back injury in the April 1991 collision. As the learned judge pointed out it may be that the injury caused by the April 1991 collision was exacerbated by the incident in October 1991. On this basis, Dr Guthrie’s notes do not give the lie to the evidence of the appellant, Ms Penfold and Mr Gable in regard to the appellant’s complaints of back pain and other problems stemming from his back before October 1991.

69    No reason was proffered for the omission of the respondent to call Dr Guthrie to testify. Only his notes were produced and tendered. Plainly, had he been called, he could have thrown considerable light on the issue.

70    As regards Dr Bodel, the trial judge observed that the doctor conceded that it was possible that the April 1991 collision caused the back injury although he maintained that, on the probabilities, it was the October 1991 incident. Dr Bodel’s views are not necessarily inconsistent with the testimony of Ms Penfold and Mr Gable.

71    Obviously, it would have been open to his Honour to come to a different decision, to disbelieve the appellant’s witnesses and to find that the back injury was not caused by the April 1991 collision. But, it was open to the learned judge to come to the conclusion that he did. I am not persuaded that that conclusion was wrong.

72    This is not a case where the judge has relied on the demeanour of witnesses instead of accepting a substantial body of objective evidence to the contrary. While Johnson ADCJ was undoubtedly impressed by the credibility of Ms Penfold and Mr Gable, he did not accept their testimony in the face of objective evidence to the contrary. He considered that their testimony was not necessarily inconsistent with the evidence relied on by the respondent. This approach was open to his Honour.

73    Accordingly, I would not uphold the cross-appeal in regard to the finding that the appellant’s back injury was caused by the April 1991 collision.

Costs

74    The Calderbank offer (which far exceeded the judgment sum) was made on 19 October 1998. At trial, the appellant contended that the offer should be ignored as the respondent had proffered no reason for making it so late, that is, one week prior to the commencement of the hearing and, effectively four days prior to the commencement of the trial. The appellant submitted further that, as the Rules of the District Court relating to the making of an offer of compromise had not been utilised, the Court should make the usual order for costs. The appellant submitted that costs should follow the event. The respondent contended, on the other hand, that as the appellant had not succeeded in obtaining judgment for a greater amount than that offered, he should pay indemnity costs from the date of the offer.

75    His Honour dealt with the question as follows:

“It seems to me that in the circumstances of the case there is some justification for making an order, other than the usual order. The [respondent] seeks an order that the [respondent] pay the [appellant’s] costs up till 19 October 1998 and thereafter the [appellant] pays the costs of the [respondent]. I am not satisfied that that order should be made. It seems to me, however, that there should be some recognition of the fact that the Calderbank letter containing an offer was made a full week prior to the commencement of the hearing and that there was a period of days in which the [appellant] should consider his position in relation to that offer”.

His Honour concluded that the appropriate order should be that the respondent should pay the appellant’s costs up to 19 October 1998 and that, from that date, there be no order as to costs.

76    In my opinion, his Honour’s reasoning is unexceptionable. He gave due weight to the Calderbank offer and had regard to all relevant considerations. His decision is unassailable.

Interest

77 At the trial, the appellant sought interest on the past economic loss component of the judgment. The amount of interest involved was the sum of $11,546.39. By reason of s 73 of the Motor AccidentsAct, interest of this kind is payable only in accordance with the criteria set out in s 73(4). Section 73(4) provides:

“73(4) Other heads of damages.
The following provisions apply to damages, other than damages to which subsection (2) or (3) applies, payable in relation to a motor accident:

(a) Interest is not payable (and a court cannot order the payment of interest on such damages unless:
(i) information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or
(iii) …
(iv) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

78 Johnson ADCJ held that the circumstances of the case did not come within s 73(4)(a)(ii) or s 73(4)(a)(iv).

79 The learned judge then considered s 74(4)(a)(i). His Honour referred to an earlier offer of compromise made by the respondent in April 1995 in the sum of $25,000 plus costs. He regarded that offer as inadequate and concluded that he was entitled to disregard it for the purposes of s 73(4)(a)(i). On that basis he held that the the case came within s 73(4)(a)(i) and concluded that the appellant was entitled to interest in the sum claimed of $11,546.39.

80 The appellant does not now dispute that his Honour erred in this respect. In determining whether or not s 73(4)(a)(i) applies no consideration is to be given to the adequacy of any offer that is made. The fact is that in the present case the respondent made an offer. Hence, s 73(4)(a)(i) and s 73(4)(a)(ii) do not apply.

As his Honour acknowledged, although the respondent made an offer, that offer was not “unreasonable” within the meaning of the subsection. Hence (as the judge held) s 73(4)(a)(iv) did not apply.

Accordingly, the appellant had no right to the interest as claimed.

81    In the circumstances, I would uphold the cross-appeal in respect to interest. I would reduce the judgment sum by $11,546.39 to $136,437.21.

Conclusion

82    In summary, I would dismiss the appeal and uphold the cross-appeal only in respect of the award made for interest by reducing the judgment sum to $136,437.21.

83    As regards costs, I would order that the appellant pay the costs of the appeal. A substantial portion of the cross-appeal concerned the back injury issue on which the respondent was unsuccessful. In my view, justice would be done if there be no order as to the costs of the cross-appeal.

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