Karvelis v Karvelis

[1999] NSWCA 479

CITATION:	Karvelis v Karvelis [1999] NSWCA 479
FILE NUMBER(S):	CA 40894/98
HEARING DATE(S):	3 December 1999
JUDGMENT DATE:	3 December 1999
PARTIES :	Pavlos Karvelis v Margaret Karvelis
JUDGMENT OF:	Priestley JA at 1; Beazley JA at 14

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5966/97
LOWER COURT JUDICIAL OFFICER:	Her Honour Judge Tupman

COUNSEL:	Appellant - J.B. Turnbull Respondent - J.D. Roberts
SOLICITORS:	Appellant - Connery & Partners Respondent - Cameron Gillingham Boyd
CATCHWORDS:	Personal injury; judge's findings of fact; no new question of principle
DECISION:	Dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40894/98
DC 5966/97

PRIESTLEY JA
BEAZLEY JA

Friday, 3 December 1999

KARVELIS v KARVELIS

APPEAL AGAINST QUANTUM - unsuccessful attempt to disturb judge’s findings of fact - no new question of principle.

ORDERS
Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40894/98
DC 5966/97

PRIESTLEY JA
BEAZLEY JA

Friday, 3 December 1999

KARVELIS v KARVELIS

1    PRIESTLEY JA: This is an appeal from a judgment given by her Honour Judge Tupman in the District Court in a personal injuries claim. What appears to have been a major issue at the trial was the degree of weight which should be given to the evidence of the plaintiff. Her credit and the reliability of her evidence about what happened to her after the accident which gave rise to the proceedings were put very much in issue. 2    The trial Judge gave very detailed consideration to all the factual matters that appeared to have been contested including the question of the plaintiff's credit and reliability. For reasons which appear to the court to be unaffected by any obvious error or misunderstanding the trial Judge fully accepted the plaintiff as a truthful witness, indeed she thought that she was the kind of witness who said less about her condition and her symptoms rather than more that could have been said. 3    The result of the action was that the plaintiff was adjudged entitled to an amount of $267,195. The defendant appealed and argued the appeal under four headings. The first three were: non-economic loss, economic loss, and unpaid domestic assistance. In regard to all of these, but particularly in regard to the first two, the basic proposition put forward by the appellant defendant was that the trial Judge was right in her finding that the plaintiff had suffered a soft tissue injury, or muscular ligamentous strain injury to her neck and lumbo-sacral spine as a result of the accident, and that the injury was ongoing and had caused the symptoms of pain, discomfort, and restriction of movement which she had earlier set out. 4    The next step in the argument was that the conclusions the trial Judge drew from this starting point led to her awarding quite disproportionate amounts for both economic and non-economic loss. The basic idea was that an injury of the kind described by her Honour even although it was ongoing at the time of the trial could not have the continuing effects upon the plaintiff which the trial Judge attributed to it. 5    Not mentioned at first in the defendant's submission was another condition from which the plaintiff was suffering at the time of trial described as a major depressive illness. Counsel at a later stage took this further matter into account in his submission and maintained the submission that the figures resulting from her Honour's consideration were quite disproportionate to the actual medical condition which she had found. 6    This submission could only succeed in this court if the idea behind the long line of decisions of which De Vries and Abalos are representative examples in the High Court could be satisfied. That idea is that in an appeal of the present kind where the court is being asked to make a different evaluation from that of the trial judge of the consequences of factual matters depending upon credibility, it is only if some palpable misuse of the trial Judge's advantage can be sheeted home to him or her that the court will consider a setting aside of the judgment. Nothing that has been put on behalf of the defendant in the present case can reach the level of some obvious error of palpable misuse of advantage on the part of the trial Judge. On the contrary, although in the end her findings were wholly favourable to the plaintiff, the reasons she gave for coming to those findings appear to be quite unexceptionable. 7 There does not seem to be any need really to say anything more about these first two heads of the defendant's appeal than to go over very briefly what I have already sought to indicate. The position is that there were materials before the trial Judge, both in the way of medical evidence in reports tendered in the plaintiff's case, and in the evidence of the plaintiff herself, which left it well open to the trial Judge to make the findings that she did. Once that point is reached then there is no basis for this court interfering with the trial Judge's conclusions. 8 The third head of the appeal is subject to much the same kind of difficulty from the appellant defendant's point of view. Without going into the detail of the figures it seems enough to say that the head of damage was calculated by her Honour on the basis of figures as to the number of hours for which the unpaid domestic assistance would be required during the remainder of the plaintiff's lifetime and the amounts to be paid for such hours which were fully available to her Honour upon the material that was before her. 9 One objection raised by the appellant defendant was that the Judge had recognised that in the latter part of her life the plaintiff would be impeded by a progressive or degenerative condition for which the defendant was not responsible which would contribute to a growing lack of capacity for the plaintiff to carry out domestic duties. But although the trial Judge recognised that, I do not think she was in error in nevertheless applying the two hours per week basis for her calculation throughout the life of the plaintiff after trial. Some degree of averaging must have been involved in looking at the whole period and it seems to me to be simply impossible to say that the figures her Honour used were not sensibly based in the evidence and did not produce a reasonable result. 10 The final heading of appeal was that the trial Judge had been wrong to grant interest on past economic loss because bearing in mind the governing section of the Motor Accidents Act it was said that an offer that had been made to the plaintiff to settle her claim had been a reasonable one. The offer was of $63,263 which was the amount an arbitrator had decided was the appropriate amount for her damages. The argument for the appellant defendant was that since an independent arbitrator had fixed such an amount it could not be unreasonable for the appellant defendant to adopt that as a reasonable amount in making an offer to the plaintiff. 11 The trial Judge dealt with the arguments that were put on this point in some detail in separate reasons a few days after she had published her reasons on all the earlier aspects of the case. Having read her later reasons on the interest point, and having heard counsel discuss them, I do not see anything in her reasons which can be said to show any error of principle, or misunderstanding of the relevant facts, or any taking into account of irrelevant matters. Something of that kind would need to be shown in regard to an evaluative judgment of the kind necessary to deal with the particular question which was before her, before this court would interfere with her Honour’s opinion. 12 In the absence of any error or oversight of the kind mentioned I do not think it would be open to this court to interfere with her conclusion. In any event I agree with her conclusion for the reasons which she gave. 13 The result is that none of the matters relied upon by the appellant defendant in my opinion should be accepted, so that I would dismiss the appeal with costs. 14 BEAZLEY JA: I agree. 15 PRIESTLEY JA: Just before we go, I read the figure of $267,000-odd as being the judgment figure, that did include the interest amount, did it not? Yes, thank you.

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