Kairouz v Rice

[1999] NSWCA 301

CITATION:	Kairouz v Rice [1999] NSWCA 301
FILE NUMBER(S):	CA 40685/97
HEARING DATE(S):	18 June 1999
JUDGMENT DATE:	19 August 1999
PARTIES :	Mansour Kairouz v Peter John Rice
JUDGMENT OF:	Meagher JA at 1; Giles JA at 11; Grove J at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	3400/95
LOWER COURT JUDICIAL OFFICER:	George ADCJ

COUNSEL:	Appellant: K. Rewell/S. Thade Respondent: J. Shore
SOLICITORS:	Appellant: Keddies Respondent: Abbott Tout
CATCHWORDS:	negligence - aggravated damages - failure trial judge to find aggravated damages.
ACTS CITED:	Motor Accidents Act 1988
CASES CITED:	Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.
DECISION:	Appeal Allowed; Verdict and judgment below set aside; order that there be a new trial, limited to the issue of damages; The respondent to pay the appellant's costs both below and in the Court of Appeal, and to have a Certificate under the Suitor's Fund Act in respect of the latter

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40685/97

MEAGHER JA
GILES JA
GROVE AJA

Thursday 19 August 1999.

Mansour KAIROUZ v Peter John RICE

JUDGMENT

1   MEAGHER JA: This is, I regret to say, yet another appeal from an unsatisfactory decision of George ADCJ. 2   The plaintiff, the present appellant, was involved in a motor car accident on 17 December 1993, when a motor vehicle driven by the defendant slammed into the rear of the plaintiff’s stationary motor vehicle. The defendant, when sued, admitted duty and breach, but not damage. 3   His Honour found a verdict for the defendant. His reasoning is contained almost entirely in the following passage:

“It is of course the onus for the plaintiff to prove on the balance of probabilities that the matters complained of arising out of the collision for which indeed the breach of duty is admitted did in fact arise from this collision and were not pre-existing.
“I have gone through the plaintiff’s medical reports and I have discussed them at some length during the course of submissions with senior counsel for the plaintiff Mr Evatt. I am not satisfied on the balance of probabilities that the plaintiff has discharged the onus of proof and that the matters complained of as a result of this accident are indeed a result of the accident.”

4   The plaintiff appeals. 5   It was not in dispute that in 1980 the plaintiff was also involved in another motor vehicle accident - a very serious one - which resulted in spinal surgery in 1983 and in 1992. 6   The plaintiff did not seek any damages for past or future loss of earnings. 7   There is no question but that the plaintiff was an unsatisfactory witness: he had lost his memory (a result of the 1980 accident); he had a functional overlay; and he was given to exaggeration. 8   The most surprising feature of the case is that all the many doctors involved in the case - those consulted by the plaintiff and those consulted by the defendant - agreed that the 1993 accident aggravated the injuries caused by the 1980 accident. 9   His Honour did not deal with the nature and extent of that aggravation; nor whether, on the currently accepted misconstruction of the Motor Vehicles Act, it continued until the date of trial; nor the extent, if any, to which the undoubted aggravation supported the plaintiff’s testimony, unsatisfactory though it was; nor the importance to be placed on the payment of over $800 by the defendant toward the plaintiff’s medical expenses as an admission of damage. 10   In my view the following orders should be made:

1. Appeal allowed;
2. Verdict and judgment below set aside;
3. Order that there be a new trial, limited to the issue of damages;
4. The respondent to pay the appellant’s costs both below and in the Court of Appeal, and to have a certificate under the Suitor’s Fund Act in respect of the latter.

11   GILES JA: The expression of his Honour’s reasons for the verdict for the defendant has been set out by Meagher JA. It was preceded by the statements that the injuries of which the plaintiff complained were “identical to the injuries that are complained of … in respect of” the 1980 motor vehicle accident and that “All of the symptoms that are presently complained of appear to be identical …”. 12   There was, however, much medical evidence, although in the form of reports unexplored and untested in oral evidence, supporting the view that the plaintiff’s pre-existing disabilities were aggravated by the 1993 motor vehicle accident. Congruence of symptoms did not exclude compensable aggravation. 13   Although, as the defendant submitted, to a considerable extent the medical evidence depended on what the plaintiff told to the doctors, and so suffered from what his Honour described as the plaintiff’s less than satisfactory evidence, that was not always so. Accepting that the plaintiff was an unsatisfactory witness, analysis of his evidence and the medical evidence was necessary in order properly to make findings upon aggravation and extent of aggravation. The obligation to give reasons did not call for extended exposure of such an analysis, provided that the reasons disclosed how his Honour came to the conclusion to which he came. It is unnecessary to canvass or apply the learning in this respect found in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, since on any view it was insufficient to say that going through the medical reports and discussing them with counsel did not produce satisfaction that the plaintiff’s onus of proof had been discharged. 14 It was unclear whether the plaintiff had relied on material before his Honour said to show the payment of $824.00 towards the plaintiff’s medical expenses as an admission that the plaintiff had suffered injury in the 1993 motor vehicle accident. Whether the material did establish relevant payment, and whether by virtue of ss 45(2) and 45(2A) of the Motor Accidents Act 1988 there was an admission, were open to argument, but his Honour did not refer to this matter at all. 15 It being unclear whether this matter had been raised before his Honour, it put it aside. The inadequacy in his Honour’s reasons is nonetheless such that the verdict for the defendant can not stand. 16 This Court can not assess damages, since the assessment involves determining what weight, if any, is to be given to the plaintiff’s evidence in the light of the medical evidence and of other matters material to whether he suffered injury in the 1993 motor vehicle accident, and determining the magnitude and consequences of any such injury. An element in that is the impression made by the plaintiff when giving evidence. This Court can not act only on the analysis made in the appeal by the respondent of the plaintiff’s evidence and the medical evidence in order to determine either whether the 1993 motor vehicle accident produced compensable injury or whether the damages should be assessed in a particular amount. 17 I therefore agree with Meagher JA that the appeal should be allowed. Since whether the plaintiff suffered injury in the 1993 motor vehicle accident will be in issue, and damage is an ingredient in the cause of action, I do not think that the new trial cam be limited to damages: however, the defendant should be held to its admission of breach of duty of care. The orders to be made should be as proposed by his Honour, save for that limitation.
18 GROVE AJA : I have read the judgment of Meagher JA in draft form. 19 I do not agree with his assessment that there is a “current misconstruction” of the Motor Accidents Act (concerning temporal requirement of disability) and if adherence to the authorized construction reveals an almost touching naivety on my part - see Roberts v White 1999 NSWCA 12 per Meagher JA - I must bear the defect as bravely as I can. 20 It would seem that the ingredients of damage claimed by the appellant consist only of out of pocket expenses for treatment and non economic loss. Counsel for the respondent indicated that it was desired to contest whether the former were reasonably incurred (although the amount was conceded) and whether the appellant passed the statutory threshold for damages for non-economic loss. It is not clear which arguments were addressed at trial but it is apparent that the respondent resisted entry of judgment for any amount in favour of the appellant. The respondent should be held to his concession of the existence of duty and breach but trial of the issue of damages should not prevent the respondent from seeking to demonstrate that none are payable. 21 Subject to the foregoing, I agree with Meagher JA and with the orders which he proposes.