Giamarelos v Motor Accident Commission - [2013] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2013] SASC 138
Judgment of The Honourable Justice Anderson
5 September 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - GENERAL PRINCIPLES - PERSONAL INJURY OR DEATH CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
Appeal from a magistrate's decision. The magistrate awarded the appellant damages to compensate him for injuries he sustained in a motor vehicle collision on 26 March 2007. The appellant appeals on the basis that the award of damages is manifestly inadequate and that the magistrate made errors reaching his conclusion. The appellant further appeals on the basis the magistrate has exhibited an apprehension of bias in his handling of the matter. The appellant appeals the order of costs as the magistrate concluded the type of costs in error.
Question of award of damages:
HELD: Appeal allowed. The magistrate did not award sufficient damages to compensate the appellant for injuries sustained in the accident. Award of damages set aside. Assessment of damages to be remitted for assessment before a different magistrate.
Question of bias:
HELD: Appeal dismissed. Magistrate's handling of the matter did not amount to bias on his part.
Civil Liability Act 1936 (SA), referred to.

GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2013] SASC 138
Magistrates Appeal: Civil
ANDERSON J.
Introduction

The appellant in this matter appeals from the decision of a magistrate who awarded him damages to compensate him for the personal injuries he sustained when he was a front seat passenger in a motor vehicle involved in a collision on 26 March 2007.
The defendant’s liability for the plaintiff’s injuries is not in issue. After a long trial the magistrate awarded the plaintiff damages in the sum of $7,100. That included an assessment pursuant to the Civil Liability Act 1936 (SA) for non-economic loss plus an amount awarded for loss of earnings. It also included a figure for interest.
The appellant complains that the award of damages is manifestly inadequate and that the magistrate made many errors in reaching his conclusion.
The appellant also complains that the magistrate has exhibited an apprehension of bias in his handling of the matter. There is also an appeal from the order for costs made by the magistrate.
Background
In the three years prior to the accident the appellant was employed as a painter. He was 22 years of age at the time of the accident and 27 at the time of trial. Following the accident he was off work for a couple of days but said he continued to experience symptoms from the whiplash type injury he sustained in the rear end collision. He consulted his general practitioner Dr Cox and he was given a certificate to be absent from work for one week.
The appellant was, at the time of the accident, an A grade soccer player and received some payments for playing soccer but he says in his statement of loss that what he earned from soccer really amounted to expenses. He sought an award of damages to compensate him for the loss of a chance to become an elite player earning a large income.
The appellant maintained in his evidence that he continued to suffer from pain, discomfort, restriction of movement and weakness in his neck for a considerable time, certainly greater than the nine months allowed by the magistrate. He also complained of sleep impairment and headaches and claimed that all of these symptoms affected his day to day social and recreational activities. He said he felt discomfort in the work he did as a painter and had modified the way in which he painted by avoiding some of the tasks altogether. He was able to do this because he was employed in his father’s business.
The magistrate’s reasons
The magistrate gave extensive reasons for his assessment of damages. The respondent had argued that the impact in the collision was very minor and could not have caused the injuries and the sequelae that the appellant complains of. The respondent also pointed to the fact that the plaintiff continued playing soccer in the premier league and only missed one game after the accident but not in the week immediately after the accident. The respondent also alleged that the appellant had pre-existing injuries and suggested that the symptoms complained of by the appellant were all the result of those pre-existing injuries.
The magistrate dealt with each of these submissions by the respondent in his reasons.
The magistrate spent considerable time in analysing the nature of the accident and the degree of force involved in the impact. After his review of the evidence the magistrate concluded that it was a low impact collision unlikely to cause significant injury. There appears to be little doubt that it was such a collision with very little damage to either motor vehicle. That fact is of course not conclusive of the type and severity of injuries which can be sustained.
The magistrate then proceeded to analyse the symptoms complained of by the appellant and the medical evidence called by both parties.
The magistrate refers to the way in which the appellant answered questions in cross-examination. He says at [42]:
[42]The plaintiff’s answers were clearly unsatisfactory and incongruous with the tenor of the medical reports.
The appellant was cross-examined in relation to the time before the accident and his soccer playing in relation to injuries sustained by him pre-accident. It is suggested by the appellant that the magistrate’s summary of the medical evidence is inaccurate.
The magistrate records at [52] that the appellant was treated by Mr Georgonicas, a chiropractor, prior to the accident for pain in his neck when painting for which he apparently took a month off work. He did not give evidence but his notes were tendered.
The magistrate at [52] said that, “The plaintiff’s attention was drawn to the ongoing chiropractic treatment he sought for pain to his neck and back between 2002 and 2007, ie during the five years prior to the accident”. [My underlining]
It is not correct in my view to call the chiropractic treatment ongoing. The chiropractor’s notes show that he saw him once in 2002 and again once in 2005. In 2002 it is noted that he had pain in his mid-back from playing sport. He suffered from pain in inhalation. A similar complaint was made in 2005 when he also said he had pain in his neck and right shoulder from painting.
In evidence the appellant explained in his answers that after the accident what he suffered was a “totally different feeling”. He said he experienced sharp pain in his mid-back when breathing in deeply. He did not deny that he suffered from aches and pains after playing soccer and painting.
Significantly the notes also show that after the accident the appellant saw the chiropractor on three occasions. The complaints on these occasion related to a mid to low back pain after work as a painter and after playing soccer. The appellant said when cross-examined that he did not consult the chiropractor after the motor vehicle accident until October 2007 because it was a completely different pain than that which he had suffered prior to the accident.
The magistrate returned to the question of the appellant’s credibility at [62] and said:
[62]Whilst I found the plaintiff to be a pleasant, softly spoken individual, my overall impression of the plaintiff’s testimony, at best, was that it was tepid and unconvincing. Even though he was on the stand for a considerable time, he was unable to explain simple issues with plausible answers. Overall, I gained the distinct impression that the plaintiff’s changeable approach to important questions was not due to absentmindedness or confusion, but rather a type of mendacity that appears all too commonly in the transcript, particularly in the plaintiff’s cross-examination.
The magistrate also said at [121]:
[121]As to the plaintiff’s credibility, I have already referred to various spurious answers he gave in cross-examination which has cast real doubt over his truthfulness. Although I have serious reservations about the plaintiff’s veracity, this case is not so much about the embellishment of symptoms as it is about the inability of the plaintiff and his many witnesses to establish the fact that the symptoms complained of years after the collision were attributable to the 26 March 2007 incident. As indicated, the preferred evidence establishes a finite injury with temporary symptoms for a finite period, namely nine months.
The magistrate went on to say at [122]:
[122]This case stands for the proposition that the volume of evidence presented on behalf of the plaintiff may not necessarily equate with its quality. As I have already recorded previously, all of the plaintiff’s medical reports, without exception, were predicated on the truthfulness of the plaintiff’s narrative. They all concentrated on a motor vehicle injury that required almost no actual medical treatment and eschewed the effects of the plaintiff’s regular activities of soccer and painting. The elephant in the room, namely those other activities and their effects, came into sharp focus only when the witnesses’ attentions were drawn to this conspicuous reality during cross-examination. All medical witnesses called by the plaintiff then agreed that those activities would likely cause the very symptoms the plaintiff complained of.
Assessment of damages
The magistrate assessed the appellant’s damages for non-economic loss. He assigned the numerical value of 3 on the scale of 0 to 60 pursuant to s 52(2)(a) of the Civil Liability Act. This meant an award of $3,920 for non-economic loss. He then made an award for past loss of earning capacity for a period of three weeks in the amount of $2,280. Interest had been agreed in the sum of $900. The magistrate therefore assessed the appellant’s total damages in the amount of $7,100.
Arguments on appeal
Mr Walsh QC for the appellant attacks the reasons of the magistrate under three main heads. He argues that the magistrate failed to properly assess the ongoing difficulties encountered by the appellant beyond the nine months allowed by him and singled out instances where he submits that the magistrate has not considered the whole of the evidence. This includes an incorrect assessment of the medical evidence which led to a finding that all effects of the accident were spent within nine months.
Mr Walsh further argues that the magistrate exhibited bias in his comments and findings. Finally it is argued that the magistrate erred in his decision to award the respondent costs pursuant to the Supreme Court Scale as a result of the judgment figure being less than an offer filed by the respondent.
Incorrect assessment of damages
In his reasons at [17] the magistrate said: “Further, whilst individuals may vary in the type and extent of their injuries from the same impact, I do not ignore the fact that Mr Ferlas, sitting next to the plaintiff, sustained no injury, again suggesting a minor impact”. The magistrate is wrong in that statement. Mr Ferlas gave contrary evidence in cross-examination. His evidence was that he still had symptoms of a neck and lower back injury at the time he gave evidence. Counsel for the respondent, Mr Day, concedes that that is an error by the magistrate. Mr Walsh argues that the error coloured the magistrate’s views of the injuries sustained by the appellant.
Mr Walsh makes a general criticism of the magistrate in that he made statements in his reasons without identifying the actual parts of the evidence he was referring to. As an example Mr Walsh points to what the magistrate said at [62] which I have set out earlier in these reasons.
Next Mr Walsh attacks the statement made by the magistrate at [110] where he said:
[110]Apart from Dr Cox, whom the plaintiff saw on three occasions after the collision, the last at the request of his solicitors for the purposes of a report for medico-legal reasons, Mr Madigan was the only other treating medical professional the plaintiff consulted. Whilst Mr Madigan’s report is short, it is clear and contemporaneous. It reflects the observations of a treating medico who would have had the patient’s health and welfare as his primary concern, without any tendency to promote a more favourable or less favourable view.
Mr Walsh argues that this is an incorrect statement because there were other treating professionals aside from Mr Madigan. He instances the chiropractor Mr Georgonicas, Dr Psaltis who was another general practitioner, and also the soccer club trainer Mr Nicolic, although he was not strictly a medical professional. The notes of Mr Madigan, Mr Georgonicas and Dr Psaltis were tendered by consent. Mr Georgonicas does not assist much on the question of treatment relating to the accident although the accident could easily have caused an exacerbation of the symptoms complained of by the appellant post-accident.
In addition to Mr Madigan’s reports, Mr Walsh points to his hand-written records (exhibit D5) which Dr Fry said were important in assisting him form the views he did.
The notes indicate that the appellant received physiotherapy treatment up to August 2007. This of course takes the period of recovery beyond the magistrate’s finding of 20 June 2007.
Having read the notes one can understand why Dr Fry took a different view after examining the notes. The notes show that on 10 May 2007 the appellant had a “very stiff thoracic spine centrally and bilaterally”. The appellant was still sore when Mr Madigan saw him on 16 May 2007. Significantly when he was seen by Mr Madigan on 22 May 2007 he had been off work and was “generally feeling a lot better”. Mr Madigan notes that he was much looser generally. Then on 29 May 2007 his neck ached on his return to work and was also jarred when he played soccer.
On 15 June 2007 the appellant reported that soccer was okay and that he was back painting. The plan was to see how he went. When seen on 31 July 2007 he had started to get a little tight and had a “slightly stiff upper cervical and mid-thoracic”. On 8 August 2007 there was decreased stiffness and tenderness indicating that some stiffness and tenderness still remained.
These notes show in my view how the appellant was attempting to get on with both his work and his soccer playing but that he continued to experience discomfort when doing so.
Likewise, the notes of Dr Psaltis, a general practitioner, confirm some continuing difficulties in August 2007. Dr Psaltis saw the appellant on 22 August 2007. He noted that the appellant was training at soccer but not for the full training session. He was still taking Panadeine Forte and complaining of neck pain, made worse when using a roller for painting and looking upwards. There was also pain with his neck in sustained flexion for any length of time. He also noticed upper back pain when moving the ladder.
Mr Walsh next criticises the magistrate for the statement he made in paragraph [111] where he said:
[111]Notwithstanding the extent of the medical evidence presented by the plaintiff, the substance of that evidence relied almost entirely on the veracity and accuracy of the plaintiff’s narrative.
As Mr Walsh points out, some of the medical experts made it clear that they were relying on their skill and experience in forming their conclusions even though the plaintiff’s account of his injuries was important. He particularly refers to Dr Fry.
Mr Walsh refers to the magistrate’s findings at [113] where the magistrate stated “The injury sustained by the plaintiff was minor and resolved”. In the next paragraph the magistrate said at [114]:
[114]It is likely that the injury resolved by the time Mr Madigan assessed the plaintiff in June 2007. However, allowing for the most generous outcome, I am prepared to extend the resolution of the plaintiff’s injury to when he was assessed by Dr Haynes in December 2007, at which time I am confident that the self-limiting, soft-tissue injury had well and truly resolved. Since all remnants of the injury would have completely disappeared by December 2007, it is not possible to conclude that the injury affected the plaintiff’s soccer career. I do not doubt that for the next several years the plaintiff may have suffered intermittent pain to his neck area. His regular activities of playing high-level soccer and full-time painting were bound to cause pain from time to time; all the specialists acknowledged as much in cross-examination. However, the single event which occurred on 26 March 2007, which was of a minor nature, was not responsible for any pain the plaintiff may have suffered after December 2007.
Mr Walsh argues that the finding that, for the next several years the plaintiff may have suffered intermittent pain to his neck and that his regular activities of playing soccer and his full-time occupation of painting were bound to cause him pain from time to time, was a clear statement in favour of the ongoing difficulties encountered by the appellant. The magistrate then went on to say that the motor vehicle accident was not responsible for any pain the appellant may have suffered after December 2007. Mr Walsh argued that the magistrate confused the question of causation and in so doing has penalised the appellant after a clear finding that there were ongoing difficulties. He submits that it did not follow logically that the accident had to be the sole cause and it failed to acknowledge that there may have been competing causes. It was not a case of all or nothing.
The magistrate deals with the evidence of Dr Fry at paragraphs [96] and [97] of his reasons. Dr Fry was called by the respondent and prepared two reports which were tendered in evidence. The magistrate says that Dr Fry appeared to endorse Mr Madigan’s findings, namely that the injury had resolved after a few months. Mr Walsh argues that this was not accurate. He points to Dr Fry’s cross-examination where Dr Fry made it clear that upon a consideration of Mr Madigan’s notes he needed to modify his views because there was a return of the symptoms and this changed his opinion about the continuation of symptoms.
It is of note that Dr Fry’s report of 6 August 2008 relates to the time when he first saw the appellant on 31 July 2008, some 16 months after the accident. At that time the appellant complained of aching at the base of his neck and upper back which was intermittent. It was more noticeable when he held his head in extreme positions, for example, painting a ceiling. He told Dr Fry that if he stopped any activity which was causing pain the pain would cease. He also told Dr Fry that at football he avoided the exercises that stress his neck.
Significantly, he said that he was still working as a painter but was doing more supervisory work and avoided some activities. Dr Fry found what he described as a vague tenderness at the base of the neck on examination. There was also a slight stiffness towards the end of his range of movement and some soreness at the extremes of movement.
There are therefore consistent complaints of pain and discomfort during work and playing soccer which have been noted by each of Dr Cox, Mr Madigan, Dr Psaltis and Dr Fry extending beyond the limited period allowed for by the magistrate.
Mr Walsh points to another instance where he argued that the magistrate failed to identify instances which are covered by a broad generalisation and as an example refers to the magistrate’s reasons at [121], which I have set out earlier.

Mr Walsh submits that in that passage there is a crucial finding in relation to the appellant’s credibility but there is no identification of the “spurious answers”. Therefore it is argued that it is very difficult to assess what the magistrate is referring to.
The plaintiff gave evidence that after the motor vehicle accident he had difficulty in both training and playing competitively for his soccer club. He said he missed training sessions, generally felt down and lacked confidence, avoided tackles and could not achieve an overall level of fitness such as he had maintained prior to the accident. There was some support for this from the witness Mr Aloisi and also Mr Nicolic. The fact is that whatever the degree of pain and discomfort was, the appellant elected to continue with his normal activities.
Mr Walsh criticises the magistrate for dismissing the evidence of the appellant’s wife by saying that she could not help him with any of the substantive issues to be determined. The magistrate said at [90]:
[90]Ms Sandra Carnovale, wife of the plaintiff, described the plaintiff to be frustrated and angry after playing poorly. She gave evidence that, although she never discussed his passion for soccer with the plaintiff, she could see it ‘in his eyes’ that he had lost that passion. She could not help me with any of the substantive issues to be determined.
The fact is that Ms Carnovale had known the appellant for about two years prior to the accident. She described him in her evidence as a confident and lively person and full of life. She said he did not complain about any generalised aches and pains. After the accident he complained to her that he experienced headaches and he held his hands in his head after he played soccer. He complained of pain in the neck as well. She said that after the accident he changed, lost confidence, and was tired. She said he was extremely angry and frustrated at how he performed at soccer. Mr Walsh argues that they were all substantive issues to be determined and that the magistrate was in error in saying that her evidence could not assist him with those issues.
The magistrate deals with the evidence of Mr Nicolic, the soccer trainer, at [87]. Mr Nicolic said he did not give the appellant Panadeine Forte before almost every game. The appellant had said he did. But the magistrate does not deal with the fact that Mr Nicolic said that he did provide the appellant with medication, but not Panadeine Forte. He also said he massaged his neck area to loosen his muscles. He said he knew something was not right but that he did not know exactly what it was. He said that the appellant was not the same soccer player after the accident. It seems the magistrate has held it against the appellant for saying he was given a particular drug whereas in fact he was given another.
Mr Day for the respondent argues from the premise that this accident was extremely minor and that as a result the injuries sustained were also minor. He relies on the magistrate’s finding that the soft tissue neck injury or whiplash type injury was resolved by December 2007. He instances the appellant playing soccer in the week after the accident. He refers to the medical examinations undertaken by Dr Cox and in particular when Dr Cox saw the appellant on 6 August 2007. At that examination he formed the view that the appellant should not be left with any permanent disability. Mr Day points out that the only treatment arranged by Dr Cox was a referral to the physiotherapist Mr Madigan. In turn Mr Madigan reported that the appellant’s injuries had settled well.
Mr Day submits that the absence of any ongoing medical treatment, as distinct from attending for medico-legal reports, shows that the injuries had in fact resolved.
Mr Day referred to the magistrate’s reliance on the evidence of Dr Haynes. It was Dr Haynes’ conclusion that any injuries the appellant complained of when he saw him on 10 December 2007 were not related to the collision.
Mr Day then submits that the credibility of the appellant was a large factor in the decision of the magistrate. I asked Mr Day whether this was a case where the magistrate relied on the demeanour of the appellant in answering questions or whether it was a case that he just did not accept his evidence on the basis of other evidence. Mr Day argues that it was both.
Mr Day submits that the evidence called by the appellant to support his claims for ongoing disability all relied on the subjective complaints of the appellant which His Honour had rejected. That is not correct. There were independent objective assessments made by the experts.
Mr Day argues that the numerical value of 3 ascribed to the appellant’s non-economic loss was reasonable in all the circumstances. He said it is a direct consequence of the finding as to the termination of any ongoing difficulties by December 2007. The number 3 might be appropriate if such a finding is justified but if the symptoms continued beyond December 2007 then obviously that number would have to be increased.
In summary Mr Day’s approach was to emphasise the fact it was a very inor impact, that the injuries were minimal and that all symptoms relating to the accident had resolved at the latest by December 2007. In addition the magistrate disbelieved the appellant.
Bias
Mr Walsh argued that the magistrate demonstrated bias towards the appellant. He submits that this bias is indicated by the intervention by the magistrate during the plaintiff’s cross-examination where it is suggested that the magistrate directed the cross-examiner to ask certain questions. The transcript reveals that the magistrate did direct the cross-examiner to topics but in the context of whether the cross-examiner intended asking the plaintiff about those matters. That is not interference in the normal sense. It is merely the magistrate indicating that he wants to hear evidence on that particular topic. It is true that the magistrate did this on several occasions during cross-examination but looking at the topics I can see that they were helpful in answering the questions which had been posed for the magistrate.
The other area of criticism made by Mr Walsh is as to the comments made by the magistrate during the costs argument. It is clear that during this argument the magistrate, once he had been informed about the offer to consent to judgment, was particularly unhappy about the time that the trial had taken and what he considered to be an unnecessary number of witnesses called by the appellant. It is clear that the magistrate was frustrated by the course the trial had taken especially when he observed that what he regarded as a reasonable offer had been filed. His comments must all be looked at in light of that background.
It is clear that some of the comments made by the magistrate were intemperate. He made the comment that after one day of the trial it could be seen that this matter was not going anywhere. Even though this comment was made after the event Mr Walsh says it shows a pre-judgment. The magistrate said the case for the appellant was a case of wishful thinking.
He then made a strange comment about the fact that the wife was not a helpful witness. He repeated what he had said in his judgment that she did not add much. He said anyone who had proofed her properly would have said that we cannot call her because all she can do is give evidence of what she saw “in his eyes”. This is a strange comment and unwarranted.
That was followed by a comment directed to the solicitors acting for the appellant, “What if we can’t con the magistrate?”
No objection was made during the trial as to any bias exhibited by the magistrate. No objection was taken to the magistrate’s interference in directing the cross-examiner to topics. Perhaps the real clue to the magistrate’s frustration is contained in what he said “off the record” during the costs argument but in my view it does not amount to bias. I would dismiss the appeal on the ground of bias.
Costs
The magistrate gave a separate decision on costs on 11 July 2013 and published reasons for his decision. I do not intend saying anything in these reasons regarding the appeal point on the question of costs. That is because it may affect the decision of the magistrate who is to be the ultimate assessor of the appellant’s damages.
I will deal with the appeal on costs by way of a separate decision which will not be published but will remain only with the parties until the matter is finalised.
Consideration
I have not dealt with all of the arguments put by Mr Walsh both in his written outline and in the oral argument before me. That is because I have reached a firm conclusion that on the matters I have already referred to the appellant has been able to demonstrate sufficient errors by the magistrate to justify an interference with his assessment of damages. The arguments of Mr Day to counter those points are all related to the closed period of nine months for the sequelae of the injuries and I have found this to be incorrect.
In my view the magistrate has fallen into error in placing too much emphasis on the fact that this was a minor collision. The injuries sustained by the appellant have to be treated on the merits and there is medical evidence to support the complaints made by the appellant beyond a period of nine months albeit not necessarily to the degree he complains of.
The magistrate states that the driver of the vehicle sustained no injuries. This statement was incorrect, as the driver did sustain injuries. This was of some significance to the magistrate.
It appears that the magistrate has placed little or no emphasis on the evidence of Mr Nicolic, the soccer trainer and the appellant’s wife. In my view he was wrong to disregard this evidence. Likewise Dr Psaltis adds some important emphasis. The magistrate has not correctly assessed the effect of pre-accident treatment by Mr Georgonicas.
The statements made in the course of the magistrate’s findings at paragraphs [113] and [114] as previously discussed indicate an error in my view. Given the finding that the magistrate acknowledges that for several years after the time of the accident the appellant may have suffered intermittent pain to his neck and given that he had not previously suffered any difficulty in that specific area the magistrate’s conclusion that the motor vehicle accident was not responsible for any pain beyond December 2007 is incorrect. Even if it was not the sole cause it was clearly a contributory cause and the magistrate makes no allowance for this.
The evidence contained in the report of Dr Fry confirms that at least the appellant had a reasonable basis for complaints in relation to pain and stiffness relating to both his work and his soccer playing for some 16 months at least and not the nine months found by the magistrate.
It is clear Dr Fry was saying that some 16 months after the accident there were still symptoms causing pain but improving with time. In my view the magistrate’s findings are inconsistent with Dr Fry’s views. The magistrate does not say that he rejects Dr Fry’s opinion, on the contrary, it appears that he accepts it. Dr Fry refers to an incapacity for work in the sense that the appellant avoids painting with his head and neck in extension. Clearly a painter is required to paint in all sorts of uncomfortable positions. At the time he saw him clearly Dr Fry was of the opinion that the condition was not stable.
I have taken into account that the magistrate must have been affected by his impression of the appellant but he makes no finding which indicates that he took into account the demeanour of the appellant as distinct from the fact that there was evidence contrary to the evidence given by the appellant.
This is not a case where the respondent can justifiably point to the advantages of the trial judge because it is a case of assessing the evidence for and against the appellant. I do not agree with Mr Day’s submission that demeanour played any significant role in the magistrate’s consideration of the evidence.
Having heard the arguments presented on appeal it is my conclusion that the magistrate has erred in his assessment of damages. The magistrate has been shown to be in error in some of his comments. Although the magistrate was in the position of being able to choose what evidence to accept based on his hearing and seeing the witnesses in my view he has misused this advantage to the detriment of the appellant. He has not correctly weighed the evidence.
He clearly did not accept the appellant in many respects. He had difficulty in accepting that on the vital aspects of his case the appellant was a credible witness. It is my view that there are sufficient instances of error to show that the magistrate incorrectly assessed the damages to which the appellant was entitled. This is because of his mistaken view that the duration of symptoms was only nine months, and that every complaint of pain to his neck after that time was causally unrelated to the accident.
It means that the figure of 3 for non-economic loss must be reviewed and increased in light of the evidence I have pointed to. Whereas 3 may be sufficient, based on what I regard as an erroneous finding, it must be increased to take account of the overall effect of the evidence.
The magistrate properly addressed the type of impact involved in this accident. However, even minor accidents can cause ongoing and painful symptoms in the type of injury involved, namely, a whiplash injury. The appellant was very young at the time of the accident. He suffered from symptoms from his accident-related neck injury in both his employment and his chosen recreation of soccer, and it generally affected his enjoyment of life. Both before and after the accident the appellant has suffered from pain and discomfort in both his employment and soccer playing. He has continued with both despite the discomfort and occasional treatment.
I am not convinced that the magistrate has made any error in refusing to make an allowance for any loss of a chance in relation to the ability to earn large amounts of income from playing professional soccer. There just is not sufficient evidence for such a finding. The appellant’s case did not come up to proof on this aspect of the claim.
On the other hand in relation to a loss of earning capacity I disagree with the magistrate’s decision to award nothing for this aspect. It is clearly a case for some award albeit not substantial. It is my view that the magistrate has erred in not making any allowance for a loss of future earning capacity. This follows from my conclusion that the magistrate has erred in his assessment of the cut off point for ongoing difficulties. The evidence shows that there should have been an allowance to cater for the difficulties encountered in his job as a painter especially given his young age and the difficulties he had at work causing him to modify the way he did his work.
It follows that the proper assessment should increase the figure of 3 for non-economic loss and include an allowance for loss of future earning capacity.
Conclusion
I allow the appeal. I set aside the award of damages made by the magistrate. I cannot make an assessment of the damages because the parties have argued the question of costs and disclosed to me the offer to consent to judgment. It is not appropriate for me to make an assessment unless it is with the consent of both parties.
It is regrettable therefore that the matter must be remitted for assessment of damages before a different magistrate.
I would hope that the parties having considered these reasons would agree that the magistrate assessing damages should do so on the basis of the evidence called in the trial and having regard to my comments as to where the magistrate appealed from has erred.