Kendirjian v Ayoub

Case [2008] NSWCA 194

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Kendirjian v Ayoub [2008] NSWCA 194

FILE NUMBER(S):
40697/06

HEARING DATE(S):
29 October 2007, 26 November 2007

JUDGMENT DATE:
14 August 2008

PARTIES:
David Anthony Kendirjian (Appellant)
Cheree Elizabeth Ayoub (Respondent)

JUDGMENT OF:
Beazley JA McColl JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 29/04

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

LOWER COURT DATE OF DECISION:
13 October 2006

COUNSEL:
J W Conomos (Appellant) (29 October 2007)
A Morrison SC;  M McHugh (Appellant) (26 November 2007)
P J Deakin QC;  D L Ronzani (Respondent)

SOLICITORS:
Eugene Lepore & Associates (Appellant)
Abbott Tout Lawyers (Respondent)

CATCHWORDS:
DAMAGES – motor vehicle accident – whether damages awarded inadequate – credibility of plaintiff – whether primary judge palpably misused position as trial judge in finding on the basis of video evidence that plaintiff not severely physically and psychologically disabled – held – no
COURTS AND JUDGES – adequacy of reasons – whether substantial miscarriage of justice manifest from primary judge’s observation that plaintiff’s behaviour while giving evidence “bizarre” – held – no
LEGAL PRACTITIONERS – inadequacy of written submissions – wasted costs – plaintiff’s legal representatives to pay wasted costs incurred by their serious neglect

LEGISLATION CITED:
Civil Liability Act  2002
Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Supreme Court Act 1970
Supreme Court Rules 1970
Motor Accidents Compensation Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dell v Dalton (1991) 23 NSWLR 528
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Franklins Limited v Burns; Burns v Franklins Limited [2005] NSWCA 54
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-731
Khan v Polyzois [2006] NSWCA 59
Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199
House v R [1936] HCA 40; (1936) 55 CLR 499
Jones v Bradley [2003] NSWCA 81
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Moran v McMahon (1983) 3 NSWLR 700
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Southgate v Waterford (1990) 21 NSWLR 427
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449
Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht…

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AGLC
Kendirjian v Ayoub [2008] NSWCA 194
Case
[2008] NSWCA 194
Decision Date

CaseChat Overview and Summary

This case involved an appeal by the appellant, Mr. Kendirjian, against a decision of the primary judge concerning damages awarded following a motor vehicle accident. The respondent was Mr. Ayoub. The appellant contended that the damages awarded were inadequate, particularly in relation to his physical and psychological disabilities.

The central legal issues before the Court of Appeal were whether the primary judge erred in his assessment of the appellant's damages, specifically in relation to non-economic loss, and whether the primary judge's findings on the appellant's credibility and the extent of his disabilities were adequately supported by the evidence. The court was also required to consider whether the primary judge's reasons for judgment were sufficient and whether any substantial miscarriage of justice had occurred. Furthermore, the conduct of the appellant's legal representatives in relation to written submissions and the potential for wasted costs were also matters for determination.

The Court of Appeal dismissed the appeal, finding no palpable misuse of the primary judge's position in assessing the video evidence and the appellant's credibility. The court held that the primary judge was entitled to find that the appellant's evidence regarding his disability could not always be accepted as reliable and required corroboration. The court also found that the primary judge's observation that the appellant's behaviour while giving evidence was "bizarre" did not manifest a substantial miscarriage of justice. The court noted that the primary judge had considered various aspects of the appellant's injuries, including the laminectomy, lumbar canal stenosis, and urological symptoms, in his assessment of damages, even if not all evidence was explicitly detailed in the section on non-economic loss.

The appeal was dismissed with costs. The court also made orders regarding further written submissions concerning the payment of costs on an indemnity basis and the allocation of wasted costs, which were to be paid by the appellant's legal representatives due to serious neglect.

Orders

Orders of the court

(1) Appeal dismissed with costs.

(2) Respondent to file and serve within seven days written submissions as to whether any, and if so which, of the costs of the appeal should be ordered to be paid on an indemnity basis.

(3) Mr Conomos and Mr Lepore to file and serve within a further fourteen days written submissions dealing with:

(i) what part of the wasted costs should be paid by either or both of them; and

(ii) whether any, and if so which, of the costs of the appeal should be ordered to be paid on an indemnity basis.

(4) Leave to the appellant to file and serve within 21 days written submissions dealing with:

(i) the question of who should bear the burden of the wasted costs; and

(ii) whether any, and if so which, of the costs should be ordered to be paid on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Further Supplementary Submissions contended that if the Court concluded that the primary judge’s assessment of the video evidence was erroneous it could substitute its own conclusions for the primary judge’s. Further Supplementary Submissions: specific evidence The Further Supplementary Submissions contended that the primary judge had not dealt adequately, or at all, with the following evidence:(a) in dealing with non-economic loss (at [50]), his Honour did not mention the three-stage laminectomy the appellant underwent, although it was noted (at [38]) in the context of the claims against Dr Kam. Nor did he mention (at [50]) his earlier finding (at [39]) that the appellant, in addition to the soft tissue injuries noted, had lumbar canal stenosis by 2002. (b) His Honour did not address Dr Kam's opinion that he did not see any neurological surgical solution and did not think the appellant could return to his pre-injury duties as an auto electrician. (c) His Honour did not address Dr Kam's evidence in chief to the effect that the appellant's stated symptoms were complaints heard from patients with lumbar-canal stenosis on a fairly common basis, such patients comprising the majority of his practice, nor the conclusions Dr Kam drew from the CT myelogram. It was contended that these omissions were significant considering his Honour's finding (at [33]) that the appellant's evidence about his physical disability “cannot be always accepted as reliable and must be approached with considerable reserve where not corroborated” and, further, were more telling as his Honour found (at [40]) that it was the appellant's complaints about disability and chronic pain which persuaded Dr Kam to suggest surgery. They also contended that these omissions were puzzling, in the light of his Honour’s rejection (at [74]) of the respondent's allegation in the cross claim against Dr Kam that the appellant’s condition was complicated by depression and that surgery was contra-indicated. (d) the evidence concerning the appellant's urological damage was, apart from one mention (at [19]), reduced to a finding (at [50]) of “some urinary tract symptoms” when non-economic loss damages were assessed. The Further Supplementary Submissions drew attention to the statement by the MAA Review Panel that whilst the appellant may have assessable whole person impairment related to urinary bladder dysfunction, it was not necessary for their purposes for a determination to be made in this regard, as the appellant "has 20% whole person impairment due to the lumbosacral spinal impairment and this is greater than the 10% threshold in the relevant regulations". It was contended that such a significant finding underlined the scope of the appellant’s physical injuries and disabilities and pointed to appealable error in the learned primary judge's finding of non-economic loss, notwithstanding that such a percentage was not a guide to assessing damages for non-economic loss (Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 (at [21]) per Mason P).

Decision

Reasons for decision

The primary judge accepted that the video evidence affected reliability of the appellant’s evidence. While he held that the appellant suffered from some injuries and disabilities, he did not accept his evidence that he was disabled to the extent he claimed. His Honour rejected the appellant’s and respondent’s case against Dr Kam. There is no appeal from that aspect of the decision.Primary judgment I set out below the critical evidence recorded, and findings made, by the primary judge. After the accident the appellant said he did not return to work for about two and a half months. He complained of right lower back pain, neck pain and stomach pain. He said he developed a burning feeling when he passed urine. He said that his condition deteriorated and he experienced numbness in his right leg, from the back of the leg into his toes. He said that three months after the accident he was losing balance when he walked because his right leg “would just give in”. He said he was dizzy and could not concentrate because of the pain. Nevertheless the appellant said he reopened his workshop in January 2000. He continued to work for about eight months but said he was “gradually losing energy and not able to do the work [he] used to perform, and [he] had no other alternative but to close the business.” He said that at the time he closed the business his condition had not improved. He could not bend over to pick up items and he could not lift heavy objects. He said he had shooting pains down his right leg, right arm and shoulder which manifested themselves in the middle of 2000 and gradually got worse. He also complained of shocking headaches and neck pain. He said he could not concentrate. He was becoming increasingly aggressive and less patient with his clients and family because he was always in pain and had headaches. He said he was getting more lower back pain and ankle pain and continued to have a burning feeling when he urinated. The appellant said that his medical condition did not improve after he closed his business. He said he could not drive for longer than 15 or 20 minutes at a time and that his left leg shook. He said that none of his disabilities had improved after he stopped working. He said the shooting pain in his right leg caused him to lose power leading to him falling to the ground. He first experienced that symptom at the end of 2000 after he ceased work. He had not worked since November 2000. The appellant said he was not able to work during 2002 except for one or two occasions when he tried to do an odd job on his own car. He said he could not finish that work because of the pain in his neck, back and headaches. Dr Kam operated on the appellant on 27 June 2003. The appellant said that before the operation he was experiencing sharp pain in his lower back just above his belt line, with occasional pain radiating into his buttocks. Although the referred pain into his legs improved after the operation, he said that his problem with passing urine worsened and he found it necessary to use a catheter to obtain relief. The appellant said that although the feeling he was going to fall improved, his symptoms overall did not improve and deteriorated by 2005 when his condition stabilised. He said that at the time of trial he had difficulty sitting, standing and walking.

Ratio Decidendi

Legal Principle Established

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