Kendirjian v Ayoub - [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 Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Whisprun Pty Ltd v Dixon [2004] HCA 48; (2003) 77 ALJR 1598
Whyte v Brosch (1998) 45 NSWLR 354
Woolworths Ltd v Lawlor [2004] NSWCA 209
Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156

TEXTS CITED:

DECISION:
(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.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40697/2006
DC 29/2004
BEAZLEY JA
McCOLL JA
Thursday 14 August 2008

David Anthony Kendirjian v Cheree Elizabeth Ayoub

Judgment

BEAZLEY JA: I agree with McColl JA.
McCOLL JA: David Anthony Kendirjian appeals from the decision of his Honour Judge Delaney awarding him damages of $308,432.75 in respect of injuries he suffered in a motor vehicle accident. He complains that the damages were inadequate and, further, that the primary judge’s reasons failed adequately to expose the basis for his award. The matter was heard by two judges of appeal pursuant to s 46A of the Supreme Court Act 1970.
The appellant was injured on 21 November 1999 when a car driven by the respondent, Cheree Elizabeth Ayoub, made a right turn across the path of his vehicle. The appellant was driving the vehicle, in which his wife and three children were also travelling. The appellant said the accident occurred at low speed. The appellant’s wife and children were taken to Westmead Hospital. The appellant returned to his home with a tow truck driver to dispose of his damaged vehicle. He then drove to Westmead Hospital where he was examined by hospital staff and referred to his general practitioner. He was complaining of pain in the right lower back, neck pain and stomach pain.
Dr Andrew Kam subsequently diagnosed the appellant as suffering from spinal canal stenosis as a result of the accident. In June 2003, he performed a laminectomy on the appellant at L3, L4 and L5 with bilateral rhizolysis at the same levels.
The appellant commenced proceedings against the respondent to recover damages in respect of the accident on 2 February 2004. His recovery of those damages fell for quantification under the Motor Accidents Compensation Act 1999 (the “MAC Act”).

On 3 April 2006 the respondent filed a cross-claim against Dr Kam alleging he had acted negligently in misdiagnosing the appellant’s condition and performing spinal surgery which was neither necessary nor reasonable. There were numerous other particulars of negligence, but those I have recited sufficiently describe the nature of the cross-claim. The appellant subsequently amended his Statement of Claim to join Dr Kam as the second defendant and adopted the particulars of negligence recited in the cross-claim.
The respondent admitted liability, but put in issue the appellant’s injuries, loss and damage.
The case against Dr Kam proceeded on both liability and quantum. The primary judge rejected the allegation that Dr Kam had misdiagnosed the appellant’s condition. He was satisfied (at [40]) that it was the appellant’s complaints about disability and chronic pain which persuaded Dr Kam to suggest surgery in the hope of resolving these symptoms. He held (at [74]) that the decision to operate was reasonable having regard to the pain the appellant was suffering in his legs. He accordingly held that Dr Kam had not acted negligently. There is no appeal from this aspect of his Honour’s judgment.
It is common ground that in setting out the summary of the damages he awarded the primary judge omitted a figure of $10,000 for future domestic help for heavier household tasks such as house maintenance, heavy lifting and the like, so that the proper quantum of the damages is $318,432.75.

Background

The appellant alleged at trial that as a result of the accident he suffered injury to his neck, back, left thigh, left ankle and bladder. His Statement of Particulars recited a long list of disabilities said to have arisen from those injuries. His case was that as a result of his injuries he was severely physically and psychologically disabled to an extent which substantially interfered with his enjoyment of life. He also claimed he had no residual earning capacity and, accordingly, had been unable to continue his pre-accident business as an auto-electrician.
The respondent’s case was that the appellant had exaggerated or misstated the extent of his medical condition. She sought to make good the proposition that as early as 2000, and certainly by 2004, the appellant had a significantly greater capacity to move his neck and back than that he described to medical practitioners and related in his evidence at trial, by tendering video footage of him recorded in 2000, 2002 and 2004. The respondent also argued that if the appellant was as seriously disabled as he said, that was not the result of the car accident but, more probably than not, was caused by the operation performed by Dr Kam.
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.
The primary judge summarised the appellant’s presentation at trial as follows:
“23. The plaintiff presented a picture of a man who was seriously disabled. He said he could not do up his own shoelaces, he could sit in the bath and wash himself but with pain, he said that he could stand in the shower but could not soap all parts of his body and used a long-handled brush. The plaintiff said that he could not clean a bathroom, and had difficulty vacuuming and preparing food. He said that his low back pain prevented him from successfully completing many types of tasks. He said that he had a restricted driving tolerance.
24. Counsel for the first defendant asked the plaintiff why it was necessary for him to alternate between sitting and standing whilst giving his evidence. The plaintiff said that he was in pain and had cramps in his lower back and needed to adopt that posture to relieve his symptoms. The plaintiff’s presentation in the witness box was certainly bizarre, and he spent most of the time he gave evidence standing, resting his arms on the bench in front of him.
25. Although the plaintiff said that his leg symptoms had improved since the surgery, he nevertheless said that his capacity for movement was severely restricted. He said there were no significant tasks he had attempted that he had been able to complete without help. He said this was because of his neck and low back pain, although the neck pain was not as severe as that in his low back.”
The appellant said that the work of an auto-electrician was “fairly light”, although from time to time he had to get into awkward postures. He said that during the period he returned to work in 2000, he did a full range of work as an auto-electrician. He said, however, that there were jobs he normally did which he had to knock back. In cross-examination he agreed that he had deposited large sums of money into his business account notwithstanding the fact that he was not working. The primary judge described his explanation that those deposits involved a loan by his parents and a Mr Samos as “not convincing”. His Honour noted (at [30]) that Mr Samos was not called to clarify the position.
The respondent tendered video evidence recorded in 2000, 2002 and 2004. The 2000 video showed the appellant working in his auto-electrical business, bending, lifting, lying down and moving in an apparently normal fashion. The primary judge observed that the appellant’s complaints recorded in medical reports and his evidence appeared to be different to the video images for those two years. He concluded (at [33]) that the appellant’s evidence about physical disability could not always be accepted as reliable and must be approached with considerable reserve where not corroborated.
The 2004 video showed the appellant removing and replacing a wing mirror on a four-wheel drive vehicle. When it was put to the appellant that this was the type of work he normally did as an auto-electrician and he could, if desired, have been doing that work at least since 2004, he insisted that he was in pain as he did the work and that he could not perform such work consistently. The primary judge (at [32]) did not find that answer consistent with the images shown on the video.
The primary judge made the following observations about the video taken in 2000 and 2002:
“34. The video taken in October and November 2000 showed the plaintiff working as an auto-electrician at his premises at Merrylands. The video showed him bending, stooping, lying down on a trolley and walking in a normal fashion. This video was of some significance in this case because the plaintiff said that his physical condition about this time was such that he had to give away his business. It was also relevant to note that the video showed him working as an auto-electrician the day before and the day after he went to a medical appointment arranged by the defendant. The video also showed him as he was attending this appointment. The video also showed the plaintiff on the day he was to attend a medical appointment for the defendant. In my opinion there were marked differences observable in the way that he walked and moved on that day compared to how he appeared at work.
35. I find the video taken in 2000 to be inconsistent with the plaintiff’s claim that he was so physically incapacitated that he could not continue working as an auto-electrician as at November 2000.
36. The video taken in 2002 showed the plaintiff walking normally, although I accept that it did not show the plaintiff engaging in any strenuous activity. Overall, the video evidence (which was not shown to the doctors) undermined the reliability of the plaintiff’s evidence about the daily effect that his injuries have had on him.”
The primary judge noted (at [37]) that the appellant did not call his wife, or his son John who apparently sat in Court during the trial, nor did any acquaintance of the appellant, whether social or business, give evidence.
The primary judge found (at [39]), that the appellant sustained “soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident.” He said (at [40]) that he was satisfied that the appellant’s complaints about disability and chronic pain persuaded Dr Kam to suggest surgery and noted that the appellant’s evidence was that after the operation his left leg symptoms improved.
The primary judge also accepted (at [42]), that the appellant was feeling frustration and inadequacy compounded by the effects of the accident on family members. He found that the appellant had, as at 2002, “an adjustment disorder with mixed anxiety and depressive mood due to his perception of persistent pain and physical restrictions from the injuries he suffered in the accident.” This diagnosis had been made by Mr Anthony, a psychologist who had also opined that the appellant suffered from post-traumatic stress disorder. The primary judge concluded that the appellant’s evidence did not afford a factual basis for the latter diagnosis and, accordingly, rejected this aspect of the appellant’s case. The appellant did not challenge this conclusion.
The appellant tendered two reports from Mr Garofali, a pain management specialist, who reported before and after the appellant’s surgery on 12 August 2002 and 6 March 2004 respectively. The later report said, relying upon the appellant’s history, that his chronic pain condition had worsened and he should be referred to a psychiatrist. Mr Garofali did not think the appellant would return to employment and concluded that he was not suitable for vocational training. The primary judge (at [44]) rejected Mr Garofali’s opinion about the appellant’s economic capacity and need for psychiatric treatment because he concluded that the activity levels the appellant had reported to Mr Garofali were inconsistent with the 2004 video footage.
The primary judge next referred (at [47]) to the fact that on 26 August 2005 a Motor Accidents Authority (“MAA”) Review Panel determined pursuant to s 63(4) of the MAC Act that the appellant “had a degree of permanent impairment of the injured person as a result of the accident greater than 10 per cent degree and assessed an impairment to past and future earning capacity as a result of the injury caused by the accident”. His Honour observed, “as this certificate is conclusive, I find that the plaintiff does have a restricted earning capacity and that the court is to approach the assessment of that reduced capacity pursuant to s 126 of the Act”. With respect, as I shall later explain, his Honour erred in his use of this material for the purposes of assessing lost earning capacity, although the respondent does not complain of this error.
The primary judge held that once the 10 per cent permanent impairment threshold imposed by s 131 of the MAC Act had been crossed, the appellant was entitled to have consideration given to any symptoms causally connected to the injuries he sustained when the Court was assessing damages for non-economic loss. Thus, he opined (at [49]) that if the appellant had some psychological problems following from the physical disabilities he sustained the Court had to factor that effect into the award. The respondent does not challenge this conclusion.

His Honour next said:
“50. As I said, I find that the plaintiff has sustained soft tissue injuries to his neck and low back, as well as other minor injuries in the accident. I find that he has also suffered some psychological problems as a result of the physical disabilities that he has experienced, and he has some urinary tract symptoms. In my opinion, the plaintiff is entitled to an award of $80,000 for general damages to compensate him for the past and future effects of his injuries, noting that he was born on 19 May 1965.”
His Honour then turned to past economic loss. As I have said, his Honour was of the view that he was bound to conclude the appellant had suffered some loss of earning capacity.
At the time of the accident the appellant was conducting an auto-electrical business in partnership with his wife. He had been operating that business since 1989. He alleged that as a result of the accident he had been unable to operate the business and had closed it in November 2000. As I have said, at trial he asserted that he had been unable to work since that time and that that inability continued.
The appellant’s tax returns for the four years before the accident showed that he was drawing a net weekly wage of $500. Although the appellant said that business was improving at the time of accident, the primary judge rejected (at [51]) the appellant’s expert accountant’s report projecting an increase in income to the date of trial on the basis that in the 10 years prior to the accident, the appellant had never received yearly receipts in excess of that reflected by a weekly net wage of $500. The appellant does not complain about this.
The respondent also tendered expert accounting evidence. The respondent’s expert opined that bank records showing transactions on the appellant’s business bank account from September 1999 until July 2004, suggested his auto-electrical business had continued to trade after December 2000. Although the primary judge observed (at [52]) that the appellant’s explanation for those deposits was less than convincing, he concluded no evidence was led that could confirm he was still working as an auto-electrician during that period.
The respondent’s accountant’s report also referred to a letter from Thomson Ford, Parramatta dated 27 February 2004, which said:
“The business D and B’s Auto Electrical* has been trading with Thomson Ford for a period of 12 years, the account was always paid regularly and until recently there was a regular purchase pattern.” (emphasis added)
*It appears to be common ground that this was the appellant’s business name.
The appellant was not cross-examined about the inference which could be drawn from this letter that he had been operating his pre-accident business until comparatively recently. However it was put to him on several occasions that he could work every day doing useful work as an auto-electrician, a proposition he denied. Nevertheless the primary judge concluded (at [54]) that “this correspondence and its relationship to the plaintiff’s capacity for work was never explained”.
The primary judge concluded (at [55]) that the “best assessment” that could be made of the appellant’s past economic loss was $500 net per week if he was to find that the appellant had been incapacitated for work from 2000. However, his Honour rejected the appellant’s case that he had had no residual earning capacity since the end of 2000. He concluded (at [57]) that between the end of 2000 and the operation in June 2003, the appellant was “disabled to a degree but had a significant residual earning capacity”. He allowed him loss of earning capacity of $200 per week from 1 December 2000 to June 2003, that is to say 40 per cent of his pre-accident earnings. Thereafter he concluded the appellant was totally unfit for work during a period of nine months which presumably corresponded to the period his Honour found was required for the appellant to recuperate from the operation Dr Kam performed. From March 2004 and continuing the primary judge concluded the appellant had recovered to the extent of his pre-operation loss of earning capacity, that is to say he allowed him a continuing loss of $200 net per week to the date of trial.
Having made those findings, the primary judge then recorded (at [58]) that Dr Kam’s evidence revealed that the appellant had made a reasonable recovery from his operation, although he was left with back pain and some right leg pain. He observed (at [59]) that the video taken in August 2004 several weeks after the appellant had seen Dr Cummine, who was qualified for the respondent, showed a “marked difference in the movement than that which was divulged to Dr Cummine.” He noted that Dr Cummine was not satisfied about the appellant’s genuineness and concluded that by August 2004, the appellant had a residual capacity for work which could have been exercised had he chosen to do so. The date of August 2004 obviously differs from that of March 2004 to which his Honour had referred in par [57], however it does not appear to have had any significance in terms of his Honour’s conclusion concerning the appellant’s 40 per cent loss of earning capacity.
As to the appellant’s future loss of earning capacity, the primary judge concluded (at [63]) that as a result of his physical injuries and psychological symptoms the appellant had a restricted earning capacity at the date of trial which, again, he assessed at 40 per cent of his pre-accident earning capacity, ie. $200 per week. Because the appellant had pre-existing degenerative changes before the accident (which the medical evidence concluded had been rendered symptomatic by the accident) the primary judge concluded that he should discount the plaintiff’s future economic loss by 20 per cent for vicissitudes rather than the conventional 15 per cent. His Honour did not allow for any future superannuation because the appellant had been self-employed. There is no complaint about the discount applied for vicissitudes or the superannuation conclusion.
The primary judge then referred (at [64]) to the appellant’s evidence that he took 15 tablets a day for pain but noted that when his tablets were produced “some doubt existed about the relative frequency of [their] use”. He allowed $5,000 for future medical treatment in addition to past out-of-pocket expenses which had been agreed at $23,484.75.
By the time of trial, the appellant and his wife had divorced and the appellant was living part-time with his mother and part-time in a flat above his workshop. In reliance on the 2004 video, the primary judge rejected the contention that the appellant had difficulty with some aspects of his household work. He found (at [65]) that apart from a short period after his operation the appellant had at all material times been capable of performing his own domestic tasks albeit with some pain and restricted movement. He held that the appellant had not met the threshold requirements of s 128 of the MAC Act (Attendant Care Services) and, accordingly, made no allowance for past or future gratuitous domestic assistance. He did, however, allow a lump sum of $10,000 for future domestic help for heavier household tasks such as house maintenance, heavy lifting and the like.
Grounds of appeal
The Notice of Appeal does not have a happy history. The first version filed on 25 January 2007 complained that the primary judge erred in his assessment of general damages, of the appellant’s economic capacity from March 2004 until the date of judgment, of his earning capacity as at the date of trial, and as to the costs of future treatment. It also complained his Honour erred in failing to conclude the appellant had met the threshold requirements of s 128 of the MAC Act and the allowance of a lump sum of $10,000 for future domestic help. The written submissions filed in support of this Notice of Appeal, however, as the respondent pointed out in her written submissions in response, essentially advanced the proposition that the primary judge had failed to give any, or any adequate, reasons for his conclusions.
When the appeal was called on for hearing, the Notice of Appeal in the Red Book was in the original form. However early in the proceeding, Mr P Deakin of Queens Counsel, who appeared with Mr D Ronzani for the respondent on appeal but not at trial, pointed out that their written submissions had responded to an Amended Notice of Appeal dated 11 April 2007 which essentially attacked each of the heads of damages referred to in the first Notice of Appeal on the basis of alleged inadequacy of reasons.
Mr J W Conomos, who appeared for the appellant at trial and on appeal, then sought leave to file a Further Amended Notice of Appeal which consolidated the two Notices of Appeal. The Court acceded to that proposition, because, having regard to other matters concerning the appellant’s conduct of the appeal, to which it will be necessary to return, it formed the view a consolidated Notice of Appeal could not prejudice the respondent.
In its consolidated form the Notice of Appeal complained:
“1.His Honour erred in assessing the Plaintiff’s general damages in the sum of eighty thousand dollars ($80,000.00).
2.His Honour erred in his assessment of the Plaintiff’s economic capacity from November 2000 until the date of judgment.
3.His Honour erred in finding that at the date [sic, of] trial the Plaintiff has a restricted earning capacity of $200.00 per week. [sic, as in original].*
4.His Honour erred in assessing the cost of treatment including medication in the sum of $5,000.00
5.His Honour erred in finding that the Plaintiff had not met the threshold requirement of s 128 of the Motor Accidents Compensation Act 1999 and thus made no allowance for past or future gratuitous domestic care.
6.His Honour erred in allowing a lump sum of $10,000.00 for future domestic help for heavier household tasks.
7.His Honour failed to give full and proper reasons for his findings and conclusions for concluding that the Plaintiff had a significantly greater capacity for movement than reported by him to Mr Garofali.**
8.His Honour failed to give any or adequate reasons for his conclusions in paragraph 64 of the Judgment in the assessment of $5,000.00 for future medical treatment, especially as the past out of pocket expenses were agreed in the sum of $23,484.75.
9.His Honour failed to give any or adequate reasons for his conclusions in paragraph 65 of the Judgment:-
a.The threshold requirement of Section 128 of the Motor Accidents Compensation Act 1999 had not been satisfied.
b.A lump sum of $10,000.00 for future domestic help for heavier household tasks should be allowed.”
*Ground 3 was treated as a complaint that his Honour erred in his assessment of the appellant’s future loss of earning capacity.
** Ground 7 encompassed both a general attack on his Honour’s reasons as well as a particular attack on his Honour’s rejection on one of the appellant’s experts’ opinions.
The appellant asked that the primary judgment be set aside and that this Court re-assess damages or remit the matter to the District Court for re-assessment.
Submissions
The appellant’s written submissions which bore the same date as the Amended Notice of Appeal, 11 April 2007, contended that the primary judgment did not adequately analyse the appellant’s evidence nor reveal the reasons for the primary judge’s conclusion. They also complained that the absence of such reasons and the absence of any analysis of the medical evidence upon which the appellant relied at trial did not enable a proper evaluation of the primary judge’s reasons. It was contended that such an analysis was “vital in revealing which of the histories given to the medical practitioners was accepted and to what extent”, particularly having regard to the evidence revealed by the video footage. The submissions did not descend to any particularity in terms of identifying critical evidence the appellant claimed the primary judge had failed to analyse which might have led to a different outcome. Another submission complaining that the primary judge had failed to refer to, or analyse, the appellant’s evidence concerning his need for domestic help, the necessity for future treatment, and his evidence concerning the source of monies in his business bank account, also failed to identify the evidence it was asserted the primary judge had failed to take into account in these respects.

The one passable exception to the generality of the written submissions was the (nevertheless bald) contention that if, as the primary judge found (at [39]), the accident caused the appellant’s spinal canal stenosis leading to a three level laminectomy, the award for non-economic loss ought to have been “significantly higher”. In his written submissions in reply Mr Conomos also argued that the judgment was inconsistent in that the primary judge failed to award damages for non-economic loss on the basis of his finding (at [39]) that the appellant had “soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident”, awarding them instead, on the basis of his findings (at [50]), that the appellant had suffered soft tissue injuries to his neck and low back, as well as other minor injuries, some psychological problems as a result of his physical disabilities and some urinary tract symptoms.
In short, the appellant’s written submissions afforded the Court no assistance on either version of the Notice of Appeal on foot at the time the appeal hearing commenced. There was no analysis of the approximately 680 pages in the Blue Books or the 250 pages of transcript in the Black Book, nor did the appellant file a Schedule of Damages: cf Pt 51 rr 40 and 46, Supreme Court Rules 1970 which relevantly applied to the appeal. Nor, as the respondent’s written submissions pointed out, did the appellant’s submissions identify any relevant evidence the primary judge had failed to refer to, identify any material findings of fact the primary judge had failed to set out in respect of his Honour’s findings of fact and ultimate conclusions: cf Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 443) per Meagher JA.
Within the constraints imposed by the inadequacy of the appellant’s written submissions, the respondent’s written submissions contended that the primary judge’s reasons complied with the basic obligations of a trial judge and adequately outlined the reasons for his Honour’s ultimate conclusions. They submitted that the primary judge reviewed the relevant material and adequately took into account the appellant’s evidence. They argued that the primary judge was entitled to look at the appellant’s denials concerning the extent to which he worked during 2000 (primary judgment at [29]) and compare it with the extensive video evidence taken during that year and conclude that the video showed the appellant moving in a manner markedly different to his evidence, and that he was not shown in the video to be so physically incapacitated that he could not continue to work as an auto-electrician as at November 2000.
The respondent’s written submissions also argued that in contrast to the appellant’s presentation at trial of a man who was “seriously disabled” (primary judgment at [23]), the primary judge was entitled to accept that the evidence established that:
(a)the appellant’s business account was running up to 2004, although he claimed his business had closed in November 2000 (primary judgment at [30]);
(b)the explanations the appellant provided for the large sums of money which continued to be deposited into his account were “not convincing” (primary judgment at [30]);
(c)the video of the appellant working on a jeep in 2004 was inconsistent with his evidence (primary judgment at [32]);
(d)the video exposed in 2000 and 2002 was inconsistent with the complaints recorded in the medical reports (primary judgment at [33]); and
(e)the video displayed the appellant performing physical tasks in the course of his work “in a normal fashion” at a time which coincided with his claim that his physical condition was such that he had to give away his business (primary judgment at [34]).
Accordingly it was contended that the primary judge was entitled to conclude that the objective evidence in the video was so inconsistent with the appellant’s claimed incapacity that his Honour was unable to accept his evidence.
The respondent’s written submissions also argued that the amount awarded by the primary judge for non-economic loss was within the range of comparable verdicts, in the light of the evidence inconsistent with the appellant’s case. The respondent submitted that it was sufficient that the primary judge identify the inconsistencies between the appellant’s claimed disabilities and the objective video evidence to explain his rejection of the thrust of the appellant’s case.
As to economic loss, the respondent’s written submissions again contended that the primary judge had given adequate reasons, had analysed the expert evidence and correctly rejected the appellant’s contention that he was wholly disabled from employment, which critically depended upon his credit findings against the appellant. As to the future economic loss, they pointed out that the primary judge had taken into account (at [58]) the opinion of the appellant’s treating specialist, Dr Kam, that the appellant had made a reasonable recovery from his operation but had been left with back pain and some right leg pain. Mr Deakin submitted that matters such as the contrast between the video of the appellant taken in August 2004 several weeks after the appellant had been seen by Dr Cummine, an orthopaedic surgeon qualified by the respondent to whom the appellant presented as substantially physically incapacitated by spasms, rigidity and pain, were matters the primary judge was entitled to take into account on the appellant’s credibility in reaching his conclusion (at [59]) that the appellant had a residual capacity for work which could have been exercised had he chosen.
Mr Deakin next submitted that the primary judge was entitled to deal with the appellant’s evidence concerning future medical treatment briefly having regard to the appellant’s evidence that he took only some of his medication. As to the appellant’s complaint about the primary judge’s findings concerning domestic assistance, the respondent submitted that the view the primary judge had formed of the appellant’s credibility justified his rejection of this aspect of the appellant’s claim.
With the exception of the matter to which I earlier referred concerning the award of non-economic loss, the gist of Mr Conomos’s written submissions in reply was that the primary judge’s credibility conclusions were not open in the face of the appellant’s adherence during cross-examination to his evidence-in-chief.

Hearing of the appeal

When the matter appeal was called on for hearing Mr Conomos’s attention was directed to the deficiency in his written submissions. He then commenced to take the Court page by page through the trial transcript. When it was made plain to him that the detail the Court required ought to have been included in the appellant’s written submissions, he advised that he would undertake that task after the conclusion of the hearing. This was an entirely unacceptable response, made in apparent ignorance of the rules as to written submissions.

In his oral submissions Mr Conomos accepted that the appellant’s evidence-in-chief concerning the degree to which he was disabled by his injuries was inconsistent with the picture presented in the video evidence. He said he would meet that inconsistency by demonstrating the videos were inconsistent with the medical evidence and the appellant’s evidence. He also contended that the primary judge had accorded too great weight to video evidence taken on discrete occasions over the six years which elapsed from the time the appellant was injured until trial and that the video evidence was not sufficiently inconsistent with the appellant’s evidence concerning his disabilities. He pointed out, for example, that the investigator who had recorded the video had also made independent inquiries concerning whether or not the appellant was conducting his business as an auto-electrician and had not uncovered any evidence that he was carrying out work at his workshop.

Mr Conomos conceded however that on the basis of the video evidence the primary judge was entitled to conclude there was no apparent reason why the appellant would have closed his business in November 2000. He argued the primary judge dealt too peremptorily with video taken in 2002, and failed to indicate how that evidence had undermined the appellant’s evidence of his disabilities at that stage.
At times it appeared that Mr Conomos abandoned his absence of reasons grounds of appeal, but at others he appeared to resurrect them. In the circumstances, the safest approach in my view, is to assume that the grounds of appeal are as set out in the Further Amended Notice of Appeal.
Insofar as he complained about the primary judge’s failure to analyse the medical evidence, Mr Conomos finally submitted that this argument went only to the primary judge’s failure to analyse Dr Kam’s evidence and to his rejection of Mr Garofali’s opinions.
In the course of the hearing the difficulty occasioned by the inadequacy of the appellant’s written submissions became increasingly apparent to the extent that the Court was concerned that the appellant’s case was not being properly presented. Mr Conomos also appeared to appreciate the position the appellant was in having regard to the inadequacy of his submissions and foreshadowed an adjournment application.
The Court, however, was concerned that an adjournment would not make best use of court time and asked Mr Deakin to present the respondent’s submissions as best he could in the light of what had been outlined to that stage of the appeal.
At the conclusion of the hearing the Court directed the appellant’s legal representatives to file and serve submissions detailing the evidence he contended the primary judge failed to take into account and setting out what ought to have been the result if that evidence had been considered. That submission was to be prepared within seven days and the respondent, in turn, was directed to respond within another seven days.
On 5 November 2007 the appellant filed supplementary submissions prepared by Dr Andrew Morrison of Senior Counsel and Mr Michael McHugh of junior counsel which addressed the issue of damages only. Mr Deakin in reply pointed out that the 5 November submissions did not address the issue on which the Court had sought the appellant’s assistance.
On 15 November 2007 Dr Morrison wrote to the Associate to Justice Beazley advising that, having reviewed the respondent’s submissions in reply, he proposed to prepare Further Supplementary Submissions seeking properly to address the matters the subject of the Court’s direction. On 19 November 2007 Justice Beazley’s Associate wrote to Dr Morrison pointing out that leave had neither been sought, nor granted, for the filing of further submissions, drawing his attention to Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 (at 258) and in Re Application by theChief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 (at [53]-[54]) to the effect that the belief that supplementary submissions can be filed without the leave of the Court is misconceived. The letter advised that the Court would not receive additional submissions.
On 20 November 2007 the appellant filed a Motion seeking leave to file Further Supplementary Submissions. The Motion was supported by an affidavit sworn by the appellant’s solicitor. In short, it explained that Mr Conomos had been unable to prepare the further written submissions the Court had directed, that Dr Morrison and Mr McHugh had been retained to do so, and that they had been instructed that the purpose of the supplementary submissions was to address the evidence in detail in a manner which would permit the Court to reassess damages. Once the respondent’s reply submissions had been received, counsel had appreciated the purport of the Court’s direction and the necessity, if it was to be complied with, for Further Supplementary Submissions.
The Motion was heard on 26 November 2007. Dr Morrison and Mr McHugh appeared for the appellant. Mr Ronzani appeared for the respondent and opposed the application to file further submissions. The Court acceded to the application, but placed the appellant’s legal representatives on notice (as it had on the occasion of the first hearing on 29 October 2007) as to the costs consequences which may flow. I shall return to the issue of costs.
Further Supplementary Submissions
The appellant’s Further Supplementary Submissions contended that a substantial miscarriage of justice had occurred arising from the primary judge’s characterisation of the appellant’s behaviour as “bizarre”, and what was said to be his Honour’s “apparent heavy reliance upon part only of the video evidence, his Honour’s conclusions therefrom and his Honour’s failure to properly, or at all, address relevant evidence”.
The Further Supplementary Submissions contended that the primary judge appeared to have been diverted from his task by what he described as the appellant’s “bizarre” behaviour which the judgment described as the appellant alternating between sitting and standing while giving evidence. The appellant contended that such behaviour was not bizarre for a man who had undergone a triple fusion. It was submitted that his Honour’s conclusion that the appellant’s behaviour was “bizarre” was glaringly improbable and that the Court was entitled to review it in the light of the video material upon which his Honour had also relied.
The Further Supplementary Submissions then turned to a detailed criticism of his Honour’s use of the video material.

The Further Supplementary Submissions contended that the primary judge had erred in concluding (at [35]) that video taken in 2000 was inconsistent with the appellant’s claim that he was so physically incapacitated he could not continue working as an auto-electrician as at November that year. They accepted that the video demonstrated that, as at 2000, the appellant had some employment capacity which may or may not be inconsistent with the degree of disability he claimed, but contended that whether it was was ultimately a matter for medical opinion. They argued that if the respondent had wished to challenge the opinion the appellant’s doctors had formed about his earning capacity, it was incumbent upon them to subpoena those medical practitioners, to cross-examine them on the video material and determine whether it changed their views.
The Further Supplementary Submissions next contended both that the primary judge had erred in concluding that video taken in 2002 showed the appellant walking normally and also that the primary judge had failed to have regard to other material which showed that on occasions to which the investigator who took the video had recorded in his notes, the video depicted the appellant moving cautiously or in a restricted manner.
The Further Supplementary Submissions also criticised the primary judge’s rejection, by reference to the video taken in 2004, of the appellant’s evidence that he was in pain as he removed and replaced a wing mirror on a vehicle and, in any event, submitted that he could not perform such work consistently. They pointed out that that video was the only evidence of the appellant performing some sort of work associated with his normal job beyond the year 2000 and added that there were three breaks in the video of the incident which were unexplained.
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).
The Further Supplementary Submissions submitted that the appellant had also suffered the pain and ignominy of urinary bladder dysfunction for which he daily self catheterised and which the Review Panel's certificate said was caused by the motor vehicle accident and which Dr Lau, a urologist, stated was a recognised sequelae of laminectomy.
Next, the Further Supplementary Submissions contended that the appellant had psychological damage flowing from the motor vehicle accident diagnosed by Mr Garofali, a clinical psychologist, as an advanced chronic pain condition and moderate reactive depression and by Mr Anthony, another psychologist, as an adjustment disorder with mixed anxiety and depressive mood due to persistent pain and physical restrictions, post traumatic stress disorder; and by consultant psychiatrist Dr Smith as an adjustment disorder with depressed and anxious mood. As I have earlier noted, the appellant did not challenge the primary judge’s rejection of Mr Anthony’s diagnosis of PTSD.
Having regard to the limit for non-economic loss of $381,000 as at the hearing of the appeal (s 134, MAC Act) the Further Supplementary Submissions contended that the primary judge’s award for non-economic loss should have been in the range of $200,000 plus.
Further Supplementary Submissions: economic capacity
The Further Supplementary Submissions argued that the primary judge ought to have determined the appellant had no residual earning capacity and ought to have awarded him $104,145 for past economic loss.
Next, as to future economic loss, the Further Supplementary Submissions contended that the MAA Review Panel had confirmed that the appellant’s future earning capacity was impaired, alternatively that if he had any earning capacity it was of a minor nature and was speculative at best.

The Further Supplementary Submissions referred, without elaboration, to the accounting report of Furzer Crestani tendered in the appellant’s case at trial.
Using the figure of $500 net per week, less 15 per cent for vicissitudes, the Further Supplementary Submissions contended the primary judge ought to have awarded the appellant $302,855.00 for future economic loss.
Further Supplementary Submissions: attendant care services
The Further Supplementary Submissions contended that the appellant had established his entitlement to damages for attendant care services pursuant to s 128 of the MAC Act.
They drew attention to occupational therapy reports and Medical Assessment Service (“MAS”) certificates prepared by Susan Arnold, an occupational therapist, and referred to a report from Dr Rivett, a consultant physician in musculoskeletal and psychological rehabilitation. They submitted that a “conservative approximation of the appellant's past and future domestic care requirements” was greater than an hour a day. They submitted he ought to be awarded $51,100 for the past and $196,350 for the future under this head.
Respondent’s further submissions: non-economic loss
The respondent reiterated the submissions made in her first written submissions and on hearing, that the appellant had failed to demonstrate that the primary judge had erred. She contended that there was no relevant contradiction between his Honour’s findings at pars [39] and [50], rather that the real question was the extent of the appellant’s injuries and disabilities which could be attributed to the accident.
While the respondent accepted the primary judge’s findings that the appellant had some residual disability, she argued that the extent of disability, and generally the extent of his incapacity following the accident, was very much in dispute and that the primary judge's findings adverse to the appellant were open particularly having regard to the contrast between his presentation to medical practitioners, at trial and the video material.
The respondent also argued that the appellant did not prove on the balance of probabilities that his lumbar canal stenosis significantly contributed to his symptoms. She drew attention to Dr Kam’s opinion that the stenosis "may be contributing to his symptoms".
The respondent contended that it was open to the primary judge to make adverse credit findings against the appellant, and that on a fair reading of the whole of the medical and allied evidence, the appellant had not demonstrated any "dispositive error" amenable to appellate review. Next, she submitted that even if the appellant's complaints were accepted, his claim would not justify an award of $200,000 plus for non-economic loss.
Finally the respondent submitted that if the Court decided that appellate review was warranted because of demonstrated error, the case should be remitted for a re-trial.
Respondent’s further submissions: economic loss
The respondent submitted that the Furzer Crestani material to which the Further Supplementary Submissions referred was expressly rejected by the primary judge on the basis of a flaw demonstrated by her experts, RGL Forensic Accountants (at [52]). She also argued that for the reasons set out by the primary judge (at [51]-[55]) and given his express finding (at [55]), that the Furzer Crestani scenarios were “being based primarily on speculation and without adequate documentary support from either the taxation returns or bank records” the appellant had not demonstrated error in his award of either past or future economic loss.
Respondent’s further submissions: past and future care
The respondent complained that the appellant had not identified the evidence to support his claim for past and future attendant care services.
She also noted that in the course of the hearing of the appeal Mr Conomos disavowed any claim for past care, a concession she contended was also destructive of any claim for the future, and the Court should not permit that concession to be withdrawn.
Finally she argued that the primary judge's findings in this respect reflected the video evidence and his Honour's findings against the appellant on his credibility. She also contended that Dr Rivett's opinions had to have been rejected by his Honour, a path which was clearly open to him as, too, was his Honour’s finding that apart from a short period after his operation, the appellant had been capable of performing his own domestic tasks, so had not met the threshold requirements of s 128.
Respondent’s further submissions: out-of-pocket expenses
The respondent submitted that the appellant had given no adequate reasons why future out-of-pocket expenses should be doubled. She contended that the appellant's reference to Dr Rivett did not support an arbitrary doubling of the award made by the primary judge.
Principles
The appellant’s credibility was at the heart of the issues to be determined at trial. The primary judge accepted the respondent’s case that the appellant had exaggerated or misstated the extent of his medical condition and made strong findings adverse to the appellant’s credit. Those findings turned to a substantial extent on the contrasting impressions given by the appellant as a witness and the impression conveyed by the videos.

The Court must observe on an appeal by way of rehearing, the “natural limitations” that exist in such a case, including those flowing from the disadvantage the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]) per Gleeson CJ, Gummow and Kirby JJ; Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 (at [74] – [76]) per McHugh and Kirby JJ; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 (at [17]) per Kirby J; Gleeson CJ agreeing; (at [180]) per Callinan and Heydon JJ.
Where a trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that “incontrovertible facts or uncontested testimony … demonstrate that the trial judge's conclusions are erroneous” or the trial judge “failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 (at 477) per Brennan, Gaudron and McHugh JJ; Fox v Percy (at [28] - [29]); CSR Ltd v Della Maddalena (at [21]).
Although not clearly articulated by reference to the above authorities, the appellant’s challenge to his Honour’s findings, dependent as they were on the appellant’s credibility, sought to invoke the proposition that his Honour had “palpably misused his advantage” as a trial judge. It is necessary, therefore, to examine carefully the evidence.

The appellant’s evidence

Although, in my view, his Honour summarised the critical parts of the appellant’s evidence, contrasting them, in particular, with the image presented by the video evidence, as in so many such cases “a full picture of [the appellant’s] lack of credibility… can only be obtained from reading the whole of [his] evidence”: Whisprun Pty Ltd v Dixon [2004] HCA 48; (2003) 77 ALJR 1598 (at [13]). The following summary, in my view, sufficiently reveals the appellant’s evidence and the extent to which he sought to present himself as being totally disabled.

The appellant said that following the accident he worked in his auto-electrician’s business for about eight months in 2000 but closed it in November because he was “gradually losing energy” and he was “not able to do the work [he] used to perform”. He said that at the time he closed the business he could not bend over to pick up things and could not lift heavy items. He said he stopped work because on one occasion when he was trying to change a battery in a car, he bent down to pick it up and as he was standing up and put pressure on his right leg, he fell. He said at that stage he had a shooting pain down the back of his right leg as well as one down his right arm from his shoulder. He said the shooting pain in his leg caused him to lose power so that when it occurred he “would just fall to the ground”. He said this tendency got worse in 2001. He had not used a walking stick, but managed to control the risk of falling by always being “prepared to grab onto something”. He said he had constant low back pain which was aggravated by walking, prolonged standing, sitting and driving. He said that as 2006 he could not bend to pick up objects and had to squat.

In cross-examination the appellant agreed that while he had been giving evidence he had been alternating between sitting and standing. When standing he had been bending forward a bit at his waist, leaning on both hands and had his left knee on the chair. He said he assumed that posture because:
“… on my left leg when I’ve got pressure on that one, I get a lot of pain in the left ankle and I have to – I tend to have to be prepared for the sharp pain that I get through my right leg, so I lean on something if I know I am going to be for a certain period of time standing in that one position.”
He said the constant pain in his lower back was mostly at a level of nine out of ten, although on a minority of occasions it was at a level of seven out of ten. He said this pain travelled down both his legs, although since the operation it had been mainly in his right leg. He said his condition was worse in 2006 than it had been immediately after the car accident, although he accepted that the surgery Dr Kam had undertaken had given him some improvement in his left leg.
He said he tried to do things around the home. He had tried to screw a lock on a door in 2005 but had been unable to complete the task and his son had completed it because he was in pain. On another occasion, he said it had taken him an hour to change a light switch even though that was an easy job which should not take more than five minutes. He said there was no task he could do without needing someone’s help to complete it because of his pain.
The appellant accepted that being an auto-electrician was a skilled rather than a heavy job. He said 50 per cent of the work was fairly light, although the job involved getting into awkward positions inside dashboards, inside the boot or into the engine. He accepted that most of the components an auto-electrician used were fairly light, that the work was done with simple hand tools and that a trolley could be used if heavy equipment had to be moved.
The appellant said that since he stopped work at the end of 2000 he had been able to change a water bottle for the windscreen washers on a car and change a headlight but that those tasks had taken time and he could not do them without having a break. He said the longest time he could stick at a task without a break was approximately 10 to 15 minutes, but that even during that period he was stopping and starting every minute or two. He said that with some help he could have performed his work in 2002, but that his condition had deteriorated since then and, at the time of trial he was “useless”.
The appellant was shown the video footage taken in August 2004 in which he was working on a four-wheel drive. He said it had taken him three quarters of an hour having breaks and stopping and starting. He said he kept moving around because he was not comfortable. It was put to him that the activity shown in the video was the sort of activity he could still perform to which he responded:
“I can’t perform on a daily basis because I’m always in pain and I’m pushing myself to keep my sanity. … I can’t perform all the time, it’s just a one-off thing that I tried to do for a lady, tried to help.”
Thus the picture the appellant painted in his evidence was that of a person who had had constant lower back pain since 2000, pain which had led him to fear sudden falls, pain which prevented him from picking up objects without squatting. In addition his evidence was that he was almost entirely disabled from carrying out even the most minor of tasks such as screwing a lock on a door, or changing a light switch without calling for assistance or taking long rests.
The video evidence
The approximately 3 hours of video footage tendered at trial was recorded over three years, 2000, 2002 and 2004. The 2000 footage was recorded on 31 July, 1, 3, 4, 9, 11, 21 and 22 August, 12 September, and on 16, 18, 19, 20 and 21 October, during the period the appellant said he was finding it difficult to carry out his work because of his disabilities. In 2002 video was taken of the appellant on 23 and 25 July and on 20 and 22 November 2002. Further surveillance was conducted during late August (26, 27, 30) and early September (1 and 2) 2004.

The video surveillance conducted of the appellant in 2000 was extensive. Most of it was taken of the appellant in and around his then auto-electrical business. It showed him working on vehicles apparently without restriction. His activities in this respect included squatting, bending to look under a car’s bonnet, sitting (including driving vehicles around the forecourt of his business), rolling car tyres, pushing a pram with a child in it.
On 11 September 2000 Dr Bowers examined the appellant on behalf of the respondent’s insurer. I shall refer to his report below. Video footage was taken of the appellant on that day both before and after the consultation. It appeared to show that he was restricted in his movement. He walked somewhat slowly and appeared to favour his left leg. The following day, 12 September 2000, video footage was taken of the appellant at his workplace. His movements appeared in marked contrast to those of the previous day. He walked freely and, to my observation, without apparent restriction. He bent, drove vehicles, although at a later stage in the surveillance he appeared to walk with a slight limp.

Further video footage taken on the occasions to which I have referred in October 2000 generally showed the appellant working at his workplace without any apparent restriction, walking without any apparent restriction (although on one day, 20 October, it is possible that he limped slightly). He bent, knelt, drove vehicles, squatted and pushed and lifted a lawn mower into a car (with another’s assistance).

The video recorded in November 2002 showed the appellant both at times moving freely, albeit perhaps with a slight limp, but did not appear to show him to move any less freely than he had in 2000. On one occasion, however, on 22 November 2002, a day he attended a medical centre in Castle Hill, he appeared to walk more cautiously as he neared the medical centre and but also walk freely at times. He walked up stairs without apparent restriction.
The video footage exposed of the appellant in 2004 again showed him apparently walking normally, bending without limitation, reaching high above his head, backing a motor vehicle, going down on one leg and climbing stairs without apparent difficulty. At times it appeared there may have been a barely perceptible limp but at all times he appeared to me to walk at normal pace.
On 30 August 2004 the video footage again showed the appellant walking and bending without restriction. He lifted what appeared to be some sort of case into the back of a vehicle using both his arms. He squatted. Throughout almost the entirety of this section of the video, which was 39 minutes long, there was only one point in which to my observation it was possible to discern the appellant limping slightly. Again, for what it is worth, on this occasion the investigator recorded that the claimant “was observed loading the Ute with work tools and didn’t appear to have the severe restrictions sighted on Friday 27 August 2004”. It was on this occasion that the appellant spent just over half an hour working on a four-wheel drive. Again he moved without restriction including bending and kneeling. He undertook the task in hand, which from his evidence at trial involved changing the wing mirror on the car, without interruption or assistance.
In summary, the video evidence demonstrated that on numerous occasions in 2000, 2002 and 2004 the appellant was able to conduct his business without any real apparent restriction and perform a variety of activities including bending, squatting, twisting, reaching above his head and sitting for periods of time which belied his evidence of being almost totally disabled.

The Further Supplementary Submissions complain that the primary judge placed too much weight on the 2004 video, pointing out it was the only footage depicting the appellant working after 2000. However the 2004 video was powerful evidence of the appellant’s ability to work in a manner in stark contrast with his evidence about his working capacity. The Further Supplementary Submissions also complain about breaks in this video. If there were such breaks, which I did not observe, there is no evidence about why they occurred. The investigator who recorded the video gave evidence and was not cross-examined about any such breaks. There is no evidence that, assuming such breaks, they detracted from the activity level the video depicted and in which the appellant could clearly engage without apparent restriction.
The primary judge drew a number of conclusions adverse to the appellant’s credit based on the video footage. These were, in summary:
(a)          that the 2000 video was “inconsistent with the plaintiff’s claim that he was so physically incapacitated that he could not continue working as an auto-electrician as at November 2000”: primary judge (at [35]);
(b)           that the 2000 video which conveyed the impression to the primary judge of the appellant bending, stooping, lying down on a trolley and walking in a normal fashion was of some significance because the appellant’s evidence was that his physical condition about this time was such that he had to give away his business: primary judge (at [35]);
(c)          that the 2002 video showed the appellant walking normally: primary judge (at [36]);
(d)          that the appellant’s complaints in medical reports and his evidence appeared to be different to the 2000 and 2002 video images and that, in the light of that conclusion, the appellant’s “evidence about physical disability [could not] always [be] accepted as reliable and must be approached with considerable reserve where not corroborated”: primary judge (at [33]);
(e)          he rejected the appellant’s evidence that he was in pain as he did the work depicted in the 2004 video and that he could not perform such work consistently: primary judge (at [32]); and
(f)           that overall the video evidence “undermined the reliability of the plaintiff’s evidence about the daily effect that his injuries have had on him”: primary judge (at [36]).
His Honour also clearly drew (at [34]) an inference adverse to the appellant from the marked differences in the way he walked on the day of a medical appointment arranged by the respondent and his movements the following day at work.
In my view the adverse conclusions his Honour drew were well open to him. The appellant’s submissions do not persuade me that these conclusions were affected by reviewable error. It is facile to say that the video evidence amounts to only 3 or so hours of observations over six or so years. The significance of what they depict lies in the conflict between the image they present and the image the appellant sought to portray in his evidence of almost total disability. Significantly, as the primary judge concluded, they show the appellant apparently working normally at a time he sought to persuade the primary judge that he had to close his business. That alone would cast significant doubt on a plaintiff’s credibility.
Moreover the videos showed that over the years the appellant presented himself to medical practitioners as severely physically disabled (as will be apparent from the later discussion), he was able to move without displaying the restrictions of which he complained to them.
Finally they showed that following his operation the appellant was able to carry out an activity of the sort auto-electricians typically perform in a manner which flew in the face of the appellant’s evidence about his ability to carry out work-related tasks. Bearing in mind that the work of an auto-electrician is not physically arduous, it is unsurprising, in my view, that the primary judge rejected his claim that he lacked any residual employment capacity.
The medical evidence
Further, in my view, contrary to the Further Supplementary Submissions, a perusal of the medical reports approximately coincidental with the video footage highlights the conflicting picture the primary judge concluded was presented by a comparison between the two.
On 18 April 2000 Dr Chaseling, a consultant neurosurgeon, reported to Dr Dawoud, the appellant’s general practitioner, that a neurological examination of the appellant’s lower limbs was normal, the appellant did not have lumbar radiculopathy and should be treated conservatively. On 2 November 2000 Dr Chaseling reported to the appellant’s solicitors that the appellant “was a man of stated age who did not appear to be in any obvious distress” although he felt his lumbar spine movements “were quite restricted”. His MRI revealed “mild focal canal stenosis due to degenerative changes as well as a gentle bulge of his L4/5 disc” which had been rendered symptomatic by the accident. He thought the appellant would “probably show continuing recovery over the next few years”.
Dr Bowers, a specialist rehabilitation physician, examined the appellant for the respondent’s insurers. He reported on 11 September 2000. He noted of the appellant:
“…He was able to dress and undress and transfer onto and off the examination couch independently with normal speed and no complaint of pain.
His gait was normal, although he walked slowly complaining of pain. Lower limb functions were otherwise normal. He was unable to perform the jolt test as he stated this would cause severe pain (a likely non-organic symptom).
On inspection, he had work stains on his hands, indicating he has been performing heavy work with the arms. Otherwise, joints were held in normal position. There was no muscle wasting, no joint swelling and no reflex sympathetic dystrophy.
On palpation he complained of extreme pain with trivial palpation throughout all areas of the lumbar spine (a likely non-organic complaint). He complained of pain on percussion of the spine with extremely light pressure (not consistent with organic disease). Tone in the arms and legs was normal suggesting no major nerve problem. Peripheral circulation was normal.
…
The straight leg raising test and Hoover’s sign were unable to be assessed because Mr Kendirjian stated it was physically impossible for him to lie on his back (a likely non-organic complaint).” (emphasis added)
Dr Bowers concluded that the appellant sustained minor injuries in the accident and that his history of ongoing complaints was in excess of those to be expected. He assessed the appellant as fit for any type of work suitable for a man of his age after a week off work following the accident.
Dr Darveniza, a neurologist, saw the appellant apparently on a referral from Dr Dawoud, on 13 December 2000. Dr Darveniza recorded:
“On examination he moved extremely slowly and cautiously to minimise spinal pain. He could only sit on the edge of a chair leaning on one buttock. There was marked restriction of all back movements and exquisite tenderness even on the lightest touch over the lumbosacral region. There was also mild painful limitation of neck movement. He was unable to lie on his back on the consultation couch but allowing for this there was no sensory, motor or reflex disturbance in the limbs …” (emphasis added)
Dr Darveniza concluded that the appellant had suffered injuries to his back and neck leaving him with “chronic back pain severely limiting his physical activities.”
Dr Darveniza’s description of the appellant’s movements contrasts starkly with the freedom of movement seen on the videos taken over the preceding months in 2000.
On 26 February 2001 Dr Darveniza reported again to Dr Dawoud following a review of the appellant on 22 February 2001. Again the appellant presented as moving “very gingerly and slowly to prevent spinal pain” and as having “a painful limp in the left leg from the ankle.” On 19 March 2001 Dr Darveniza reported the outcome of the same consultation to the appellant’s solicitors noting that the appellant “moved extremely slowly and cautiously to minimise spinal pain” and could “only sit on the edge of the chair leaning on one buttock”. In his opinion the appellant had been left with chronic back pain as a result of the accident, “severely limiting his physical activities”, a condition he thought was permanent.
In March 2001 Dr Maniam, an orthopaedic specialist, reported to Dr Dawoud that the radiological evidence showed the appellant had suffered a musculo ligamentous strain of his cervical spine, a non-specific ligamentous strain to the left ankle and possibly an injury to the L4/5 intervertebral disc. The radiological evidence showed a broad based disc bulge at L4/5 which was not showing any impingement on the nerve roots. In April 2002 Dr Maniam opined that the appellant appeared to be in significant pain and that radiological examinations showed advanced degenerative changes which in his view were likely precipitated by the accident given his pre-accident good health and the fact he had had to close his business. He recognised that the appellant’s physical condition was affected by anxiety depression and chronic pain syndrome behaviour.
Dr Maniam’s opinion was clearly influenced by the appellant’s presentation and his acceptance of the appellant’s statement that his condition had caused him to close his business. The primary judge was entitled to reject that opinion in light of his assessment of the appellant’s condition in 2000 as depicted in the video.

Dr Lew Pierides, a specialist in occupational medicine, saw the appellant on behalf of the MAA on 30 January 2002 and noted in his report:
“Examination of his lumbar spine revealed a restricted range of motion, again with vocalisation, grimacing and tensing of the antagonist muscles of each movement… His presentation was consistent with the reports sighted all of which indicated a significant amount of overreaction to examination and overt pain behaviours.”
In his opinion the appellant’s presentation was “out of context with the history and the clinical findings”.
On 29 June 2002 Dr Darveniza reported to the appellant’s solicitors that:
“On examination he looked depressed and moved very cautiously to minimise spinal pain. Once again there was exquisite tenderness in the lower back, even on the lightest touch, and marked restriction of all back movements, including flexion with the hands just reaching the knees, extensions, lateral flexion and rotation. Neck movements were full but painful at the limits …” (emphasis added)
In Dr Darveniza’s opinion, the appellant was fit for general duties not involving heavy repetitive lifting, bending and stooping.
Dr Dawoud also referred the appellant to the Westmead Pain Clinic. In one of a number of reports from the clinic, Dr Jennifer Chapman, a staff specialist in rehabilitation medicine, said of an examination on 15 July 2002:
“He was restless and was not able to maintain any one posture for any length of time. He appeared to walk with an antalgic gait, although his reflexes were symmetrical and power and sensation were normal. He was not able to sit for any prolonged period during my consultation and was up and down throughout the interview.”
Mr Garofali, a clinical psychologist and consultant in pain and stress, reported on 12 August 2002, based on a consultation on 21 June 2002 that:
“On presentation he was an insecure, depressed, tense and restless man with significant postural maladjustment and pain behaviour …”
The appellant had reported to him, inter alia, that he was extremely limited in his ability to perform moderate activities such as moving a table or pushing a vacuum cleaner and bend, kneel or stoop, walk 100 metres, lift or carry groceries, climb one flight of stairs. He concluded the appellant had developed an advanced chronic pain condition which had precipitated a moderate level of reactive depression and “a strong tendency to be overwhelmed by the experience of pain”.

There are no absolute rules as to the requirement for the judge to give reasons and, in some circumstances, “there may be little to say other than that the witnesses for one side were more credible”: Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry and Laws LJJ and Hidden J.
In my view the primary judge’s reasons adequately exposed his treatment of the parties’ respective contentions. His conclusions ultimately depended significantly on the credibility issue. He analysed the various videos against the appellant’s account of his state of health at the time approximating that which the videos depicted. He also drew an overall conclusion adverse to the appellant’s credit. That followed from his particular analysis and, further, was the sort of conclusion about which little more could be said: Flannery. His Honour sufficiently referred to the medical evidence and exposed his reasons for accepting or rejecting, as the case may be, the parties’ contentions.
The grounds of appeal which complain about adequacy of reasons should be rejected.
Non-economic loss
The primary judge’s conclusions about the appellant’s credibility and the extent of his disabilities were clearly important issues when his Honour came to consider the issue of non-economic loss.
In considering this issue it must always be borne in mind that the assessment of non-economic loss is an evaluative process in respect of which minds may reasonably differ: Woolworths Ltd v Lawlor [2004] NSWCA 209 (at [14]). An appellate court will not interfere with a trial judge's assessment of damages “simply because it would have awarded a different figure had it tried the case at first instance”: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 (at 369) per Gibbs J. in Khan v Polyzois [2006] NSWCA 59 Hislop J (with whom Mason P agreed) said the Demir principle applies to the assessment of non-economic loss under s 16 of the Civil Liability Act 2002, and, a fortiori, they would apply , too, to the assessment of non-economic loss under s 134 of the MAC Act.

In short, an appeal from an assessment of damages for non-economic loss in relation to personal injuries from a judge sitting without a jury is to be determined in the same manner as an appeal from the exercise of discretion by a trial judge. An error within the terms of House v R [1936] HCA 40; (1936) 55 CLR 499 (at 504 – 505) must be identified: Franklins Limited v Burns; Burns v Franklins Limited [2005] NSWCA 54 (at [49]) per McColl JA (Beazley and Tobias JJA agreeing).

Accordingly, an appeal court may only alter the trial judge's decision if the judge acted on a wrong principle of law, misapprehended the facts or made “a wholly erroneous estimate of the damage suffered”: Moran v McMahon (1983) 3 NSWLR 700 (at 719 and 723) per Priestley JA (with whom McHugh JA agreed); Jones v Bradley (at [117]) per Santow JA (with whom Meagher and Beazley JJA agreed); see also Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695 (at [15]–[17]); Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731 (at [100]).
The appellant seeks to demonstrate reviewable error on the primary judge’s part by asserting his Honour apparently failed to take into account a number of matters not tainted by the credibility issue.
In particular the appellant asserts that in assessing non-economic loss, the primary judge failed to take into account the appellant’s lumbar canal stenosis, as well as the fact he underwent a three-level laminectomy. It is not apparent to me that the primary judge failed to take these matters into account. He referred to the appellant’s operation (at [19] and [38]). In the next paragraph ([39]) his Honour found that the appellant had sustained “soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident.” Next he was satisfied (at [40]) that the appellant’s complaints about disability and chronic pain persuaded Dr Kam to suggest surgery and noted that the appellant’s evidence was that after the operation his left leg symptoms improved. He also accepted (at [42]) that the appellant had developed an anxiety state superimposed on his physical symptoms and referred (at [50]) to the appellant’s urinary tract symptoms. It was not necessary for his Honour to repeat all his findings when he identified (at [50]) the figure he awarded for non-economic loss. The fact that he mentioned some, but not all, of his earlier findings does not indicate, in my view, that he had not taken all his findings into consideration.

The Further Supplementary Submissions complain that his Honour did not address Dr Kam’s opinions about the appellant’s earning capacity or his opinion that the appellant’s stated symptoms were commonly heard from patients with lumbar canal stenosis. But, again, Dr Kam’s opinion was undermined by his Honour’s conclusion about the appellant’s disabilities. It was not necessary for him to refer to every medical practitioner whose opinion could not stand in the face of this factual conclusion.
The Further Supplementary Submissions, as I have indicated, drew attention to the evidence that the appellant suffered psychological damage. They did not contend that his Honour failed to take that evidence into account and the purposes of referring to the evidence without elaboration was not apparent. As I have said, the primary judge concluded, and took into account in assessing non-economic loss, the fact the appellant had suffered some psychological disability in the form of an adjustment disorder, which was Mr Anthony’s diagnosis. He adequately explained why he rejected Mr Garofali’s opinion
The appellant said his left leg symptoms had improved after the operation. Dr Kam said he had made a reasonable recovery. Dr Cummine, whose opinion it will be recalled his Honour accepted, accepted that the appellant had a degree of permanent impairment having regard to the laminectomy.

Having regard to his doubts about the appellant’s reliability his Honour was entitled to concluded that this evidence supported the proposition that the appellant suffered some disability, but that that level of disability was nowhere near that for which he contended in his evidence, and that the true position was more like that depicted in the videos.

The assessment of non-economic loss involved “questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of commonsense and judgment”: Dell v Dalton (1991) 23 NSWLR 528 (at 533) per Handley JA (with whom Kirby P and Priestley JA agreed). His conclusion depended on “[his] findings [sic] and his … reaction to those findings, drawing upon [his] general experience …”: Southgate v Waterford (1990) 21 NSWLR 427 (at 442). The amount his Honour awarded for non-economic loss may be regarded as at the low end of the scale, but that, in my view, is understandable having regard to the view he formed about the appellant’s credibility and the ultimately impressionistic nature of the exercise in which he was engaged.
In my view the appellant has not demonstrated error in the primary judge’s assessment of non-economic loss.
Economic loss
In order for the appellant to succeed in challenging the primary judge’s finding about the appellant’s earning capacity it was necessary to overturn his Honour’s assessment of the appellant’s disabilities. The appellant has failed in that respect. I would add that, in my view, the appellant was the beneficiary of a very favourable finding about his retained earning capacity having regard to the primary judge’s findings about his credibility.
This favourable finding appears to stem, in part, from his Honour’s treatment of the MAA material of 26 August 2005. His Honour (at [47]) treated the MAA determination that the appellant had been assessed with a degree of permanent impairment of the injured person as a result of the accident greater than 10 per cent and with impairment to his past and future earning capacity as conclusive and, therefore, requiring him to find that the appellant had a restricted earning capacity.
A MAA Review Panel issued three certificates on 26 August 2005. One certified that the impairments to the appellant’s cervical and lumbar spine were permanent and were assessed as giving rise to a whole person impairment which, in total, was greater than 10 per cent. That certificate was conclusive evidence as to the matters it certified: s 61(2), MAC Act. Another certificate issued under s 61(1) found that the appellant had an impairment to his past and future earning capacity as a result of the injury caused by the accident. That finding was not conclusive as to the matters it certified, not being one of the four matters referred to in s 61(2). As a certificate referring to a matter not set out in s 61(2), it was “evidence (but not conclusive evidence)” as to the matters it certified: s 61(3).
The effect of a s 61(2)(a) certificate is well established: it opens the door to an award of damages for non-economic loss, but does not impose any statutory restraint (save for the cap provided by s 134) on the amount which may be awarded for non-economic loss: Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 (at [39]) per Heydon JA (Sheller JA and Davies AJA agreeing).
A s 61(2)(a) certificate does not have a conclusive effect on the issue of damages for economic loss as explained in Brown v Lewis by Mason P (Santow and McColl JJA agreeing):
“22         It is conceivable that matters certified in accordance with s61(2)(b) (whether any treatment already provided to the injured person was reasonable and necessary in the circumstances) or (c) (whether an injury has stabilised) may afford (conclusive) evidence relevant to a particular aspect of damages assessment, including the assessment of economic loss. The terms of any certificate ‘as to any other matter’ (cf s 61(3)) or the medical assessor’s reasons for his or her finding (cf s 61)(9)) may also assist (non-conclusively) in resolving some issue referable to economic loss. But the court must never lose sight of the principle that ‘damages for both past and future [economic] loss are allowed to an injured plaintiff ‘because the diminution of his earning capacity is or may be productive of financial loss’. … It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained’ (Husher v Husher (1999) 197 CLR 138 at 143[7], per Gleeson CJ, Gummow, Kirby and Hayne JJ, citations omitted). Sections 124-130 of the MACA provide additional restrictions upon the award of damages for economic loss in respect of a motor accident.
23           Extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s 61(2) for the purpose of calculating economic loss. Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%. Section 133 points to information (MAA Medical Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition) that does not concern itself with the economic consequences of injury, and excludes information (derivative psychiatric or psychological injury, impairment or symptoms: see s 133(2)) that may be critically important to assessing economic loss. In short, the statutory concept of (permanent) ‘impairment’ is not to be equated to the notion of incapacity (permanent or temporary) that may be a stepping-stone in a case involving a claim of damages for economic loss. It is Part 5.2 of the Act (ss124-130) that contains the legislative qualifications upon the common law principles governing assessment of damages for economic loss. Those provisions do not engage the statutory concept of ‘permanent impairment’.
24           It is conceivable that matters certified or reported in the reasons of the medical assessor may have a bearing on factual issues touching damages for economic loss. But everything would depend on the nature of the particular injury. Some injuries that would not produce a greater than 10 per cent degree of permanent impairment would have catastrophic economic impact on some plaintiffs (eg the violinist who lost the tip of a finger). Conversely, some injuries that produced a greater than 10 per cent degree of permanent impairment would have minimal economic impact on most plaintiffs.” (emphasis added)
Accordingly, the primary judge was in error in observing that the s 61 certificates were conclusive on the issue of the appellant’s earning capacity. However, as I earlier noted, the respondent does not complain about this conclusion, contenting herself with the submission that his Honour had not erred in determining the extent of the appellant’s past and future earning capacity.
In my view the appellant has not demonstrated that his Honour erred in this respect. His Honour’s conclusion that the appellant had some residual earning capacity was clearly open based on his rejection of the appellant’s evidence of the extent of his disabilities and his observation of the appellant carrying out auto-electrician’s work, both at the time he closed his business due to his alleged incapacity and in 2004, as well as his overall conclusion that the appellant was an unreliable witness.
The Further Supplementary Submissions referred baldly to the appellant’s expert report to support this ground of appeal. They did not identify any error in the primary judge’s rejection (at [55]) of the conclusions in this report as being “based primarily on speculation and without adequate documentary report”.
Save in the respect I have identified, which is favourable to the appellant, the primary judge did not, in my view, err in his assessment of economic loss.
Damages for attendant care
The primary judge rejected the appellant’s claim that his disabilities affected his capacity to do housework because of the video evidence. His Honour’s conclusion was consistent with his rejection of the appellant’s evidence about his disabilities. The appellant has not demonstrated his Honour erred in this respect. The reports relied upon in the Further Supplementary Submissions depended on acceptance of the appellant’s complaints about his almost total incapacity.

Out-of-pocket expenses

The Further Supplementary Submissions argued, without elaboration, that the primary judge’s allowance of $5,000 for out-of-pocket expenses was too low and that $10,000 was a proper allowance for future out of pocket expenses. The latter submission should be rejected both because it fails to identify error on the primary judge’s part and, too, because his Honour’s assessment was consistent with his finding about the appellant’s disabilities.
Interest
The Further Supplementary Submissions sought interest on the appellant’s past economic loss pursuant to s 137 of the MAC Act. They pointed out that, pursuant to that section interest is payable at three-quarters of the usual 9 per cent rate if the defendant's highest offer is less than 20 per cent below the amount ultimately awarded by the Court and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. They contended that the respondent had not submitted that it made a reasonable offer but, in any event, if it wished to do so, the appropriate time was after damages had been redetermined.
The respondent submitted that the Court ought not entertain the application for s 137 interest on past economic loss as this issue was not raised before the primary judge and was not raised in the Notice of Appeal. The respondent also contended she had made reasonable offers to the appellant which satisfied s 137(4). She noted that the appellant had not put into evidence the flow of offers made and the context in which those offers were made. She argued that if the appellant sought s 137 interest it was incumbent upon him to adduce that evidence before the primary judge to enable his Honour to make the factual findings s 137 called for.
The interest issue appears to have been an after-thought by the appellant’s new legal representatives.
When the Court raised the issue of interest on economic loss during the hearing of the appeal Mr Conomos replied that interest had “gone, yes it went with a lot of things”, referring to the MAC Act.
That was true of interest on damages for non-economic loss (s 137(3) MAC Act), but not correct in respect of interest on damages for economic loss. Interest is available for the latter head of damages, however establishing an entitlement to interest depends upon factual findings required by s 137(4).
The claim for interest should not be allowed. The absence of a ground of appeal in respect of this claim underlines the respondent’s proposition that no claim under this head was made at trial. It involves a fact-finding process which should have been explored at trial.
Orders
The appeal has failed and should be dismissed with costs. The question of who should pay the costs, and whether any costs should be awarded on an indemnity basis was addressed both during the hearing and on 26 November 2007.
When the inadequacy of the appellant’s submissions was appreciated in the course of the hearing of the appeal and it became apparent that further submissions would have to be prepared, the Court expressed its concern that the appellant ought not bear the costs burden which may arise consequent upon his legal representatives’ failure to ensure the Court was properly assisted.
Mr Conomos informed the Court that both he and his solicitor had indicated to the appellant that they would not be charging him for the costs of the day, should the adjournment which Mr Conomos had, at that stage, foreshadowed, be granted. As to the respondent’s costs, Mr Conomos said those would not be met by the appellant, but “by the lawyers concerned”.
The Court then heard from Mr Deakin but it was nevertheless necessary, at the conclusion of his address, to make the directions concerning further written submissions to which I have already referred.
When the Motion was heard on 26 November 2007, Dr Morrison accepted that the costs of that Motion and any additional costs incurred by the respondent should be borne by the appellant’s legal representatives responsible for those additional costs.
Mr Ronzani, who appeared for the respondent on 26 November, sought costs on an indemnity basis for the entire appeal, that is to say for both the hearing and the preparation of written submissions.
The Court has power to order a legal practitioner to bear costs which have been incurred by the serious neglect, incompetence or misconduct of a legal practitioner or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible: s 99, Civil Procedure Act 2005. Section 99 requires the Court to give the legal practitioner a reasonable opportunity to be heard. As the appellant’s legal practitioners have conceded that they should bear the costs burden, to the extent that those costs were wasted, that opportunity has, in my view, been extended to the legal practitioners. I should make it clear that the appellant’s solicitor and Mr Conomos made this concession. It did not, and could not, apply to Dr Morrison and Mr McHugh who commendably sought to conduct a salvage operation in an attempt to comply with the Court’s direction.
In considering exercising its s 99 discretion as to costs, the Court may take into account a legal practitioner’s failure to comply with the requirements in s 56(3) and (4) of the Civil Procedure Act requiring parties to civil proceedings to assist the Court to further the just, quick and cheap resolution of the real issues in the proceedings: s 56(5) Civil Procedure Act.

In Whyte v Brosch (1998) 45 NSWLR 354, the Court drew attention to legal practitioners’ duty to ensure that proceedings before the Court are conducted efficiently and expeditiously and, further, to the proposition that the profession should be aware that if costs were incurred as a result of an adjournment of proceedings by reason of the late filing of submissions, the Court could order costs thrown away by the adjournment be paid by the legal practitioner responsible for the failure.
The failure of the appellant’s legal practitioners to ensure that the written submissions prepared prior to the appeal hearing day enabled the Court to deal with the appeal on that day means, in my view, that the costs of preparing for that day of hearing were incurred without reasonable cause in circumstances for which the appellant’s then legal practitioners (Mr Conomos and his solicitors), as they conceded, were responsible. However the hearing day itself was not entirely wasted and its costs would have been incurred, in any event. However the inadequacy of the appellant’s written submission prior to the hearing meant both parties had to prepare further written submissions.

In my view the costs of any more than one set of written submissions were wasted costs incurred by the serious neglect of Mr Conomos and the appellant’s solicitor, Mr Eugene Lepore. The costs of the Motion were also wasted costs occasioned by the appellant’s solicitors’ serious incompetence in failing to communicate the Court’s direction properly to Dr Morrison and Mr McHugh, thus leading to the Motion seeking leave to file yet more submissions.
In my view the appellant should only be liable to pay the costs of one set of written submissions prepared both for himself and for the respondent. The wasted costs should be borne by his legal representatives.
Section 99 enables the Court, where it has concluded that costs have been incurred in the circumstances contemplated by s 99(1) to:
“… direct the legal practitioner:
(i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or
(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs”
The question of who, as between Mr Conomos and Mr Lepore should bear the burden of a s 99 order was not addressed in the course of submissions. Further, the question of whether the respondent should be the beneficiary of an indemnity costs order was left for determination once the judgment was delivered.
These issues should be addressed in further written submissions as outlined in the orders I propose. As there may be a conflict of interest issue as between the appellant and Mr Lepore (Mr Conomos I assume no longer being retained), it may be necessary for the appellant to have separate legal representation on these issues. I express these conclusions only tentatively because much will depend on the degree to which Mr Lepore (and Mr Conomos) accept responsibility for the wasted costs.
I propose the following orders.
(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.

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LAST UPDATED:
14 August 2008