Greenway v Apap

[2002] NSWCA 347

CITATION:	Greenway v Apap & Anor [2002] NSWCA 347
FILE NUMBER(S):	CA 40972/01
HEARING DATE(S):	26 September 2002
JUDGMENT DATE:	26 September 2002
PARTIES :	Philip Adrian Greenway (Appl) Vincent Apap (1st Resp) CSR Limited (t/as The Readymix Group) (2nd Resp)
JUDGMENT OF:	Meagher JA at 51; McClellan J at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1512/00
LOWER COURT JUDICIAL OFFICER :	Balla DCJ

COUNSEL:	A Lakeman/D J Price (Appl) L King SC (Resps)
SOLICITORS:	G H Healey & Co - Blacktown (Appl) Vardenega Roberts (Resp)
CATCHWORDS:	PERSONAL INJURY - whether there was a failure by the trial judge to assess the appellant's injuries and disabilities - whether there was a failure by the trial judge to properly evaluate the medical evidence - whether the amounts awarded for economic loss and future medical expenses were adequate - whether the trial judge was entitled to consider any mitigation steps taken by appellant - whether the trial judge was entitled to conclude that there may be an improvement by the appellant on completion of litigation - whether there was a failure by the trial judge to give adequate reasons - whether an award under s 79A Motor Accidents Act was justified - COSTS - appellant tendered evidence at trial which had not been tendered before the arbitrator - whether the appellant should be denied an order for costs
LEGISLATION CITED:	Motor Accidents Act 1988 s 79A, s 39(1); (2)
CASES CITED:	Beale v Government Insurance Office (1997) 48 NSWLR 430 Morgan v Johnson, unreported, Court of Appeal, 8 September 1998 MacDougall v Curlevski (1996) 40 NSWLR 430
DECISION:	1. Appeal dismissed with costs; 2. Cross appeal dismissed with costs.

CA 40972/01
DC 1512/00

MEAGHER JA
McCLELLAN J

THURSDAY, 26 SEPTEMBER 2002

Philip Adrian GREENWAY v Vincent APAP & Anor

Judgment

1 McCLELLAN J: This is an appeal and cross-appeal in which the primary issue is the appropriate award of damages for injuries which the appellant sustained in a motor vehicle accident which occurred on 11 March 1997.

2 The trial judge awarded a total sum of $143,607.54. The matter had been considered previously by an arbitrator who awarded the appellant only $9,294 by way of damages.

3 The appellant was injured when the car which he was driving, was stationary and a truck carrying gravel, hit the vehicle behind, which vehicle collided with the appellant’s vehicle. The appellant’s vehicle then hit the vehicle in front. The appellant was trapped in his vehicle and, although he does not have a clear recollection of the event, reported a sore neck and mild pain in the back.

4 The appellant was treated by an ambulance officer at the scene of the accident where his bleeding elbow was bandaged. He then went to work but after an hour telephoned his general practitioner and sought further treatment. His condition apparently deteriorated and there is a complex history of problems, particularly relating to pain in his back.

5 At the time of the accident the appellant was employed by BHP Limited as a branch manager. He apparently spent half his time in an office and the rest of the time calling on customers and was only occasionally required to perform any physical work.

6 The trial judge related the long medical history of the appellant, which included injuries following some major accidents prior to 1997, the injuries the subject of these proceedings and an occasion in September 1997, when he had lifted some brick pavers and experienced severe pain. A lengthy film taken of the appellant between 1999 and 2001 was tendered at the trial. There was a contest at the trial as to the nature of the appellant’s injuries and their long term consequences. A significant issue was whether, by the time of the incident in September 1997, the appellant’s injuries from the motor car accident had resolved.

7 The trial judge evaluated the medical evidence in considerable detail and with the benefit of the video film, expressed the following conclusions:

“I do not have any doubt that the plaintiff has exaggerated his disability nor do I have any doubt that he exaggerated with a view to persuading me to award higher damages. For example I am satisfied that the complaints he made to Ms McMaster are inconsistent with the level of activity shown on film taken at around that time. Further, the film does show that he is functioning at a level higher than that of an invalid as suggested by the plaintiff’s wife and I do not accept her evidence relating to the level of the plaintiff’s disability. Some of the doctors relied on by the plaintiff could not correlate the level of disability with the objective findings. I am satisfied that this finding is consistent with the evidence of Mr Collins and Ms Winter as the film shows the presentation described by them on some occasions.
…
I am satisfied that the balance of the medical evidence establishes that the plaintiff suffered essentially soft tissue injuries throughout the spine. I do not accept that the accident caused a direct traumatic injury to a disc as suggested by Dr Mahony firstly because there were areas in which he was given an incorrect history and secondly because this was not the opinion of the other doctors, in particular Dr Kuah.
I am satisfied that the preponderance of the medical evidence establishes that the soft tissue injuries would be causing ongoing symptoms in circumstances where there has been a previous injury and there are some underlying degenerative changes. I also accept that the pain and inconvenience has caused and continues to cause some restrictions on the plaintiff’s activities of daily living although firstly not to the extent described by the plaintiff and secondly, in relation to the low back, not solely due to the motor vehicle accident.
I reject the submission made by counsel for the defendant that any ongoing disability is a consequence of one of the later incidents such as the lifting of the steel dowel in circumstances where I accept that the plaintiff first complained of the relevant disabilities after the motor vehicle accident and the plaintiff’s doctors agree that this is, at least in part, the cause of his ongoing disabilities.
In addition I am satisfied that the plaintiff’s ability to lead a normal life has been significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident as required by section 79A of the Motors Accidents Act 1988.
In relation to the assessment of a most extreme case I accept the opinion of Dr Kuah who was involved in the management of the plaintiff’s condition and find that the accident is primarily the cause of the neck and mid back symptoms and one of the causes of the low back symptoms. It is unfortunate that the doctor was not shown the film. However taking into account the activities shown on the film I assess non-economic loss at 27% of a most extreme case which is $28,500.00.”

8 The trial judge determined damages in the following amounts:

$

Non-economic loss	29,500.00
Past economic loss	5,147.45
Diminution incapacity from 3 February at $200 pw for 138 wks	27,600.00
Future economic loss at $800 for 3 years and $100 for 2 years	41,600.00
Past out of pocket expenses	21,092.46
Future out of pocket expenses	8,258.99
Superannuation	10,408.64

9 A Griffiths v Kerkemeyer claim was advanced for domestic assistance. However, having regard to the evidence which the film showed of the appellant’s physical capacity, the trial judge declined to award any amount for domestic assistance.

The appeal

10 The quantum of damages awarded by the trial judge is challenged. It is submitted that there has been a failure to adequately assess the appellant’s injuries and disabilities, a failure to properly evaluate the medical evidence, demonstrable error in the evaluation of the film and error in not making an award for domestic assistance. The Notice of Appeal contains eleven grounds. Ground one was not pressed.

The cross appeal

11 The respondents bring a cross-appeal in which a challenge is made to the finding by the trial judge that the appellant was impaired in his ability to lead a normal life as required by s 79A of the Motor Accidents Act 1988. The trial judge’s findings in relation to the appellant’s extent of pain and suffering, impaired past and future earning capacity and need for future medical treatment are also challenged. It is also claimed that the trial judge erred in finding that the appellant’s claim meets the threshold set out in s 70A of the Act.

Assessment of Economic Loss – Grounds 2, 5 and 8

12 Evidence was given at the trial of the opinion of Dr Kuah in relation to these issues. Dr Kuah is a sports physician who has been involved in treating the appellant. He estimated that the accident had caused the appellant to lose fifty percent of his earning capacity and that he is only fit for light duties. The trial judge accepted Dr Kuah’s opinion as to the injuries suffered by the appellant. However, her Honour commented that “it is unfortunate that the doctor was not shown the film” from which I infer that her Honour’s view of the extent of the appellant’s disabilities has been informed by viewing the film rather than relying only on the opinion of doctors who had not seen the film. The trial judge made this plain when her Honour later comments “taking into account the activities shown on the film I assess non-economic loss at 27% of a most extreme case.”

13 The reports of Dr Sundaraj were also tendered. As the trial judge identified Dr Sundaraj considered the appellant was not fit to return to his pre-injury duties and was only fit for part time work. Dr Sundaraj did not view the film.

14 The appellant submits that having regard to the evidence of those two doctors, the amounts awarded for past and future economic loss are inadequate. If her Honour accepted the evidence of those doctors, as is submitted to be the case, the earning capacity of the appellant, both past and future, is said to have been significantly underestimated.

15 The appellant’s submission overlooks the fact that, although her Honour had the benefit of the doctors’ evidence, she was also able to view the video film and assess the appellant’s condition having regard to that evidence and the physical capacity which the appellant demonstrated when filmed undertaking various activities. It is plain that her Honour thought that the symptoms which the appellant related to the doctors were exaggerated and their opinions informed, as they must be, by the appellant’s account of his problems were not based upon an entirely reliable foundation.

16 The trial judge was required to consider the impact, if any, which the video evidence had on the value of the doctors’ evidence. It may have been otherwise if the doctors had viewed the film before expressing their opinions. However, as this did not occur, it was open to her Honour to accept the doctors’ evidence but reach her ultimate conclusion having regard as well to the video.

17 In my opinion, the conclusions expressed by the trial judge in relation to economic loss do not reveal any error in the assessment or use which her Honour made of the evidence of either Dr Kuah or Dr Sundaraj.

Mitigation – ground 3

18 Section 39(1) of the Motor Accidents Act provides that:

“An injured person is under a duty to mitigate his or her damages, and, therefore in assessing damages in respect of a claim, consideration is to be given to the steps taken by the injured person and to the reasonable steps that could have been taken or could be taken by the injured person to mitigate those damages.” The relevant steps include “pursuing alternative employment opportunities.” (s 39(1A)d).

19 Section 39(2) provides that:

“In any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant.”

20 In the course of the reasons for judgment her Honour said:

“I am satisfied that there is some impairment of the plaintiff’s earning capacity but not to the extent claimed by the plaintiff. It is common ground that the plaintiff has not looked for work since leaving his employment with BHP. I do not accept the submission made by counsel for the plaintiff that this could be explained by his reluctance to lose the pension. The effect of section 39 of the Motor Accidents Act 1988 is to place an onus on the plaintiff to prove that all reasonable steps, including pursuing alternative employment opportunities, to mitigate damages have been taken. The plaintiff has not discharged this onus.”

21 The appellant returned to work after the accident but ceased his employment on 3 February 1999. He has not worked since and claims that he has not been able to work by reason of the accident. As will be apparent from the passage I have included from her Honour’s reasons there was no dispute that the appellant had not looked for work since leaving the employment of BHP. If, as her Honour says, it was submitted that the appellant’s reluctance to look for work was explicable because of a concern that he might lose the benefit of the invalid pension, the trial judge, correctly, in my opinion, rejected the submission. When assessing the appellant’s damages, her Honour was entitled to have regard to the fact that the appellant had not looked for alternative employment.

22 It was further submitted that as the appellant was granted workers’ compensation benefits after 3 February 1999, the trial judge should have allowed for economic loss at full wages during the period of those payments. However, her Honour was obliged to consider the matter having regard to the evidence before her and, in my opinion, the fact that the workers’ compensation payments may have been made is, of itself, irrelevant. This ground of appeal fails.

Failure to consider radiological studies – ground 6

23 The appellant underwent a magnetic resonance imaging scan (MRI) which was reported on by Dr Schnier and Dr Scillag. He also had an electromyogram (EMG). The trial judge acknowledged that the MRI had been undertaken but did not refer to its results. However, her Honour expressly referred to the results of the EMG. The trial judge said in relation to those results and their consideration by Dr Mahoney, who examined the plaintiff, the following:

“Dr Mahoney, who examined the plaintiff at the request of his solicitor, was also called to give evidence. He sighted an EMG which showed mild abnormalities affecting C6/7 and left C7 which he concluded showed evidence of nerve root irritation causing headaches and shoulder pain. The doctor concluded that this had been caused by the motor vehicle accident. He also diagnosed a cervical strain and a back strain with nerve root irritation affecting the lower limbs.”

24 The trial judge rejected Dr Mahoney’s evidence in that part of her reasons for judgment, which I have already included in these reasons. Her Honour concluded that Dr Mahoney had not been given an accurate history of the appellant and preferred the opinions of other doctors.

25 The respondents identify further reasons why the trial judge could have rejected Dr Mahoney’s opinion being inconsistencies in his evidence in relation to the continued existence or relevance of a pre-existing condition, inconsistencies in his evidence as to whether an aggravation of a pre-existing condition could have a permanent or temporary influence, and his pre-emptory dismissal of the opinion of other practitioners in circumstances where Dr Mahoney thought it unlikely that he himself had actually seen the MRI scan.

26 It is unnecessary to consider these further matters in this appeal. The decision which her Honour made was open to her and was appropriate having regard to the reasons which she gave. I do not believe her Honour’s conclusion is diminished by the failure to expressly consider the results of the MRI. Those results were part of the information utilised by Dr Mahoney in forming his opinion, which was an opinion her Honour rejected.

Improvement on completion of litigation – grounds 4 and 7

27 When considering the appellant’s claim for future economic loss the trial judge said:

“I have taken into account the medical evidence which suggests that the plaintiff’s condition may improve when these proceedings have been completed.”

28 This is a reference to the evidence of Dr Kuah, Dr Faiz Noore and Dr Sundaraj. All of these doctors offer the opinion that the resolution of the litigation may see an improvement in the appellant’s condition. However, some of the doctors express reservations about whether the appellant will be able to return to his pre-accident employment.

29 The appellant submits that having regard to the context in which the opinions were expressed, it was not open to her Honour to conclude that, in the context of the future economic loss claim, the appellant’s condition may improve. However, there was evidence which her Honour was entitled to accept, that the treatment which the appellant is undertaking may lead to an improvement in the appellant’s condition and capacity to work. In reaching this conclusion, the trial judge was entitled to consider the medical evidence which suggested that there may also be an improvement in the appellant’s condition when the legal proceedings have been completed. There is no error in the approach which her Honour took to this issue or in her Honour’s conclusions with respect to the evidence in relation to it.

Domestic Assistance and the Film – grounds 10 and 11

30 The trial judge had the benefit of viewing an investigator’s video film of the appellant taken at various times over an extended period. Her Honour was entitled to use this evidence, as her Honour did, to assess the true extent of the appellant’s disability, the credit of the witnesses attesting to that disability and the weight to be given to the opinions of the various doctors to whom the appellant had related his symptoms.

31 It is submitted that her Honour has misused the advantage provided by the film and that if her Honour was in error with respect to her findings in relation to Dr Kuah, Dr Sundaraj and/or other medical practitioners (grounds 2, 5 and 8) then her Honour’s findings in relation to the need for domestic services are coloured by those erroneous views and cannot stand.

32 As I am of the opinion that her Honour’s findings in relation to the medical evidence were open and contain no error, and her Honour’s use of the video film was appropriate, the findings in relation to domestic assistance cannot be demonstrated to contain any error. This ground of appeal fails.

Future medical expenses – ground 10

33 The trial judge allowed a sum of $20 per week for ten years for future medical expenses. The appellant’s claim was for a sum of $157.44 per week with a lump sum of $4915.

34 There are obvious difficulties in endeavouring to determine with any precision the future need for medical assistance in a case such as the appellant’s. However her Honour clearly formed the view that, although there may be an ongoing need for some medical help, this would not be as significant as the appellant suggested.

35 Having regard to her Honour’s findings with respect to the appellant’s present injuries and likely future difficulties, I do not believe the sum awarded for future medical expense to be inappropriate. Having regard to the evidence which was placed before her Honour, her Honour was required to do the best she could in all the circumstances in determining an appropriate sum. In my opinion, she did so.

36 The appellant has also submitted that in respect of each of the issues framed as grounds of appeal the trial judge has fallen into error by failing to adequately explain the reasons for the particular decision. (see Beale v Government Insurance Office (1997) 48 NSWLR 430). The complaints are particularly directed to the failure by her Honour to address the contents of the MRI, the rejection of the opinion of Dr Mahoney, consideration of the components of the economic loss claim of the appellant and the amount allowed for future medical expenses. Her Honour’s decision in relation to each of these issues was informed in part by her consideration of the video film and her Honour’s findings that the appellant was consciously exaggerating his disability. Once that aspect of her Honour’s reasoning is appreciated, her Honour’s reasons on all issues are in my opinion adequately revealed in the reasons for judgment.

Cross appeal

37 The cross appeal challenged the trial judge’s findings with respect to the appellant’s alleged injuries, present and future incapacity, and the impact upon his earning capacity.

38 Her Honour found that the appellant was entitled to damages for non-economic loss at a level of twenty-seven percent of a most extreme case. The finding is challenged on two bases:

1. Upon the evidence, the appellant’s ability to lead a normal life was not substantially impaired for a period of twelve months from the date of the accident.

2. The appropriate assessment having regard to the medical and lay evidence ought to have been less than fifteen percent of a most extreme case.

39 Section 79A of the Act controls the amount which can be awarded for non-economic loss. Section 79A(3) provides:

“No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired fro a continuous period of not less than 12 months by the injury suffered in the accident.”

40 In the present case the trial judge found that the pain and inconvenience “has caused and continued to cause some restrictions on the plaintiff’s activities of daily living.” Her Honour found that the appellant’s injuries were such as to justify an award under s 79A of the Act.

41 In my opinion, the finding which her Honour made was clearly open. There is no doubt the appellant was involved in an accident capable of causing him significant injury with symptoms consistent with his complaints. Although he may have been able to continue to work after the accident he was nevertheless found to have significant problems which caused pain, and associated discomfort and inconvenience.

42 Accordingly, the finding which her Honour made was open and to my mind should not be disturbed.

43 I have already considered the findings of the trial judge with respect to the appellant’s economic loss. Although her Honour was plainly doubtful about the appellant’s reported symptoms and disabilities, her Honour was persuaded that the appellant had suffered a disabling injury. Her Honour was satisfied, having regard to the medical evidence and the evidence of the film, that the appellant was suffering from continuing disabilities which impacted upon his capacity to work both at the time of the trial and for some years into the future.

44 In my opinion, the findings which her Honour made with respect to appellant’s employment were open and should not be disturbed.

Costs

45 The trial was preceded by a hearing before an arbitrator who awarded the appellant a total sum of $9,294. The trial judge awarded damages in the sum of $143,607.54 and ordered the respondents to pay the appellant’s costs. The respondents challenge the costs order.

46 Before the trial judge, the respondents resisted an order for costs and submitted that the appellant should pay the costs of the rehearing. It was submitted that because (a) the appellant failed to call any oral evidence at the arbitration other than his own; (b) the appellant became aware of the respondents’ case during the arbitration and (c) further medical reports were obtained between the date of the arbitration and hearing and were served and tendered at the trial and because of these matters had contributed to the increased verdict, the respondents should receive an order for their costs. However, the trial judge determined that the critical issue on which her Honour found for the appellant was whether the appellant’s symptoms from the accident had resolved before a further incident in September 1997, which initiated the appellant’s ongoing problems. The trial judge determined this issue in favour of the appellant contrary to the decision of the arbitrator but without relying on the further evidence tendered at the trial, which had not been tendered at the arbitration.

47 It is further submitted by the respondents on the appeal that the appellant failed to exercise appropriate diligence in the presentation of the matter before the arbitrator. See Morgan v Johnson, unreported, Court of Appeal, 8 September 1998. In particular, it is submitted that he failed to respond to the video evidence and the evidence of Dr Bornstein. An effective response which included the tender of further evidence from Dr Kuah and Dr Mahoney was only tendered at the trial. Furthermore, three lay witnesses, not called at the arbitration, were called at the trial.

48 The respondents submit that the approach which the court should take in these circumstances is that considered in MacDougall v Curlevski (1996) 40 NSWLR 430. In that case Priestley AP confirmed that where a party has conducted its case before an arbitrator in a confined manner, preserving significant elements so that they can be used to forensic advantage before a trial judge, even though that party succeeded before the trial judge and bettered the arbitrators award, it may be denied an order for costs. His Honour said:

“The position adopted by the court in Quach v Mustafa – unreported Court of Appeal 15 June 1995 as explained by Kirby P, which in my opinion is a sound one, is that although a party may chose such a course as was followed in Quach and analogously in the present case, if that course either caused or might have caused waste of public and private and cost, then the fact that the party had chosen that course was something proper to take into account in considering the costs of the arbitration and the rehearing; that is, a party adopts such a course at the party’s risks as to the costs consequences.”

49 In the present case, it is plain that the appellant tendered both lay and expert evidence at the trial which had not been tendered before the arbitrator. However, the trial judge determined the critical issue in the present matter without relying on the further evidence. The reason why the appellant received an increased verdict was that the trial judge took a different view of the documentary medical evidence tendered at the arbitration to that taken by the arbitrator. In those circumstances, in my opinion there is no reason why the costs order made by the trial judge should be disturbed.

50 In my opinion the appropriate orders are:

1. Appeal dismissed with costs.
2. Cross appeal dismissed with costs.

51 MEAGHER JA: I agree. The order of the court therefore will be the orders pronounced by McClellan J.

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