Wurth v Howard Smith Industries Pty Ltd (No 2)

[2001] NSWCA 432

CITATION:	Wurth v Howard Smith Industries Pty Ltd (No 2) [2001] NSWCA 432
FILE NUMBER(S):	CA 40826/00
HEARING DATE(S):	7 November 2001
JUDGMENT DATE:	27 November 2001
PARTIES :	Mark Wurth - Claimant Howard Smith Industries Pty Ltd - Opponent
JUDGMENT OF:	Giles JA at 1; Rolfe AJA at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 6229/97
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	K Andrews - Claimant J Sharpe - Opponent
SOLICITORS:	G H Healey & Co, Chatswood - Claimant Ebsworth & Ebsworth - Opponent
CATCHWORDS:	APPEAL - extension of time for - whether should be refused because appeal bound to fail - on facts extension of time refused - leave to appeal as to costs - no manifest error - leave refused.
DECISION:	Summons for leave to appeal filed on 8 January 2001 and the notice of motion filed on 16 July 2001 dismissed with costs.

CA 40826/00
DC 6229/97
GILES JA
ROLFE AJA
Tuesday 27 November 2001

WURTH v HOWARD SMITH INDUSTRIES PTY LTD

Judgment

: The claimant brought proceedings against the opponent seeking damages for personal injuries sustained in the course of his employment. He obtained a verdict and judgment for $112,441, but because the opponent had made an offer of compromise of a higher amount recovered his costs only to the date of the offer and was ordered to pay the opponent’s costs thereafter.

2 The claimant wished to appeal, first on the basis that his damages were inadequate and secondly on the basis that he should not have been ordered to pay the opponent’s costs.

3 In circumstances which need not be recounted, the position in this Court became -

(a) Leave to appeal as to quantum was not necessary, and if granted would carry any issue as to costs with it; (b) An extension of the time within which to appeal was necessary; (c) The only issue on the grant of an extension of time within which to appeal was whether or not the appeal as to quantum would be pointless because bound to fail; and (d) If an extension of the time within which to appeal were refused, a separate question of leave to appeal as to costs alone would remain for determination.

4 The claimant was a seaman for many years. He was injured in September 1990 when a defective winch caused a rope to break and hit him. Negligence in relation to the condition of the winch and the rope was found. The claimant had suffered earlier injuries, and was again injured in December 1992 when he slipped on degreaser on the deck and hurt his back and when he was attacked by another crew member. Thus it was necessary for the trial judge to find what injuries and disabilities were suffered in and flowed from the September 1990 events as distinct from the earlier and later events, as well as what disabilities affected the claimant at the time of trial and would affect him thereafter.

5 The trial judge considered that the claimant had exaggerated the September 1990 injuries and disabilities in order to maximise his claim in the proceedings. He gave many reasons for this, which well supported his conclusion. He found that in September 1990 the claimant suffered certain soft tissue injuries and strain, but that these problems had resolved by the time the claimant went back to sea in December 1992, and was not satisfied that there had been any serious injury to the lumbar spine arising out of the events of September 1990. He said that he rejected the medical evidence supporting the claimant’s case because it was based to a very large extent on what the claimant told the doctors, and the trial judge was of the view that in his evidence the claimant had been “cagey in his answers in cross-examination, deliberately unresponsive and claimed memory loss when he knew he was cornered” and that, on analysis of the medical reports, the claimant was “not an honest person and when it suited him he was untruthful with and misled many of the doctors who examined him”.

6 The grounds of appeal as to quantum were that the trial judge had erred “in failing to have regard to the totality of the medical evidence tendered in the proceedings”; that he had erred “in giving undue weight to allegations by the Respondent touching upon the Appellant’s credit”; that he had erred “in giving undue weight to other incidents and/or injuries suffered by the Appellant”; that he had erred “by failing to have regard to the medical evidence”; and he had erred by “failing to have regard to the totality of the evidence when determining the question of credit”. The submissions in support of the grant of an extension of the time within which to appeal amounted to pointing to evidence of complaints to doctors of and treatment for pain and discomfort prior to December 1992 and to what were said to be objective signs of injury prior to December 1992 not dependent on the claimant’s credibility. It was said that no or insufficient regard had been paid to those matters. As a separate submission, it was said that the trial judge had found that certain videos demonstrated that the claimant had little if anything wrong with him in the period prior to the trial, but that in his reasons in relation to costs the trial judge had said that he did not regard the videos as a significant factor weighing against the claimant, and that there was inconsistency in the trial judge’s treatment of the videos.

7 I have gone to each of the items of evidence to which reference was made in the claimant’s submissions. I do not think that any is at odds with the basis on which the trial judge came to his conclusion. Most were not specifically referred to by his Honour, but it is not necessary for a trial judge to itemise each and every item of evidence tending one way or the other – the duty to give reasons would be unnecessarily increased and would become intolerable. It is evident from the trial judge’s reasons, in my view, that he gave consideration to the evidence of complaints made by the claimant to doctors and the evidence of treatment received by him prior to December 1992, and was not satisfied that that evidence was soundly based or otherwise overcame the contrary evidence and his own conclusion as to the claimant’s credibility. His Honour’s findings were clearly influenced by the view he took of the claimant, having seen and heard him giving his evidence. There is no prospect, in my opinion, that the claimant could overturn on appeal the findings as to the injuries and disabilities suffered in and flowing from the in September 1990 events.

8 There is nothing in the separate submission as to the videos. The trial judge’s reasons make it plain that he regarded the videos as confirmatory of the opinion to which he had otherwise come.

9 In my opinion, therefore, this is not a case where the time within which to appeal should be extended. Leave is then required to appeal as to costs.

10 The complaint in that respect came down to the submission that the claimant should not have been ordered to pay the opponent’s costs from the date of the offer of compromise when (i) there had been an earlier arbitration at which the claimant was awarded damages considerably in excess of the amount of the offer of compromise and (ii) the opponent had at the subsequent trial been more forceful in opposing liability and had deployed in relation to quantum videos which it had not deployed in the arbitration.

11 Between the arbitration and the trial the claimant amended to enlarge the bases of liability, and that adequately explained the greater contest over liability. The videos in question post-dated the arbitration. Perhaps the opponent had been spurred by the result in the arbitration to obtain more videos, but in the result the claimant’s recovery at the trial of damages less than he had been awarded in the arbitration was not materially affected by the videos – as I have said, the trial judge regarded them as confirmatory of the opinion to which he had otherwise come. There is no manifest error in the trial judge’s exercise of his discretion as to costs, and in my opinion leave to appeal as to costs should be refused.

12 The formal orders should be that the summons for leave to appeal filed on 8 January 2001 and the notice of motion filed on 16 July 2001 should be dismissed with costs.

13 ROLFE AJA: I agree with Giles JA.

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