Antoun v New South Wales Insurance Ministerial Corporation

COUNSEL : Appellant - J R Young Respondent - J D Hislop QC & H G Shore SOLICITORS : Appellant - John H Maait & Co, Parramatta Respondent - Grahame Goldberg Partners, Sydney CATCHWORDS : NEGLIGENCE - findings of fact - no error shown - assessment of damages - mistake in stating period of partial incapacity - corrected by adding further figure and adjusting interest - otherwise no error shown; REASONS - whether sufficient - in circumstances, need only give broad outline and constituent facts, or essential ground or grounds on which decision rests - sufficient reasons given. CASES CITED: Souloumezis v Dudley (Holdings) Pty Ltd (1987) 1 NSWLR 247 DECISION : Appeal allowed in part; Substitute for the judgment below the sum of $42,244.72; The appellant to pay the respondent's costs of the appeal including the cost of mentions in the Court on 1 and 3 March 1999; Stand over motion filed on 26 February 1998 with liberty to respondent to relist the motion for hearing after the expiry of six months from today's date

8 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

ANTOUN v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

1 GILES JA: Mrs Antoinette Boutros, then Ms Antoinette Antoun, was injured on 23 January 1985 when the car in which she was a passenger braked suddenly to avoid another vehicle. In her statement of claim filed in 1986 she alleged that she suffered from shock and injuries to her left shoulder and neck. By the time of a hearing before Hughes ADCJ commencing on 7 July 1997 liability was not in issue, but there was significant contest over the nature and duration of Mrs Boutros's injuries, over any continuing disability, and over the effects of the injuries on her earning capacity and everyday life.

2 His Honour was favoured with over thirty medical reports from seventeen different doctors, three of whom gave oral evidence and were cross-examined, plus oral evidence from a further doctor. Mrs Boutros gave evidence and was cross-examined at length. Her father-in-law, Mr Khazan Boutros, was also called to give evidence in her case. The medical evidence presented a spectrum of opinions, including that any injury suffered by Mrs Boutros had been only a soft tissue injury which had settled or would settle within a fairly short time, that she had no continuing disability, and that she was faking her complaints of pain and disability.

3 It was found that Mrs Boutros had suffered a muscular ligamentous strain as a result of the accident on 23 January 1985, but that what his Honour called any sequelae of the accident had ceased by a time identified as the time she left for Lebanon. This in terms referred to when Mrs Boutros went to Lebanon in June 1986, but on a more precise understanding of what his Honour was referring to it must have referred to the time when her father-in-law first met Mrs Boutros in about mid September 1986 prior to her marriage to his son. His Honour awarded damages of $37,120.70, made up of general damages of $20,000, past economic loss of $5,450, interest on past economic loss of $7,848, and out of pocket expenses of $3,822.70.

4 His Honour's reasons, which were delivered ex tempore at the end of a three day hearing, are not ideal in their structure and expression. However, I consider that the reasoning appears with tolerable clarity.

5 In the course of her cross-examination Mrs Boutros had been strongly challenged as to her veracity and the nature and continuance of her injury and its effect upon her, both as to her earning capacity and in her everyday life. The challenge had included referring her to a video said to show her conducting herself inconsistently with her complaints. His Honour said that he did not find Mrs Boutros's evidence reliable, and that there were inconsistencies in her evidence, referring to inconsistencies "with that of the film and with other points that were made and in her history given to the doctors". He also said, understandably enough, that to the extent that medical opinions were reliant on what he referred to as the subjective complaints of Mrs Boutros, they were unreliable. He said that he found the assessments of Drs Bentivoglio and Bodel "persuasive".

6 Dr Bentivoglio considered that Mrs Boutros had sustained soft tissue injury to her neck and shoulder, and nothing more significant. When he first saw Mrs Boutros in February 1985 he considered that she would recover within two or three months, and when he saw her on 28 February 1986 and was told by her that she was "essentially unaltered" he still considered that she would recover completely without any long term disability and had not sustained a significant injury. He said that he could not see an early resolution of her complaint, but what was an early resolution and the extent of the recovery was not otherwise stated.

7 Dr Bodel saw Mrs Boutros in 1997, and was of the opinion that she had not suffered what he called structural damage in the accident and that the soft tissue injuries which might have occurred at the time should have settled within six to eight months at the very most. He was one of the doctors who gave oral evidence, in which he said that that time period could have been less or could have been more but at the outside sixteen months.

8 It is evident that his Honour was assisted to prefer the evidence of Drs Bentivoglio and Bodel by his acceptance of the evidence of Mr Khazan Boutros, whom he thought to be a truthful witness, and that his conclusions were really a combination of consideration of the evidence of the doctors together with the evidence of Mr Boutros. Mrs Boutros met and married her husband when she went to Lebanon in June 1986. She first met Mr Khazan Boutros in about mid September 1986, returning to Australia some time in October 1986. Mr Khazan Boutros had a rather indeterminate but not inconsiderable time to meet and observe Mrs Boutros, and his Honour summarised his evidence as that "there was nothing he observed that suggested she was injured during the courtship and marriage of the plaintiff to his son. He did not find out that there had been an accident until he returned to Australia." The reference to returning to Australia I think should be read as a reference to Mr Khazan Boutros coming to Australia some time later.

9 On this basis, which comes from parts of the reasons both preceding and following the passage which I next set out, his Honour came to his assessment of damages in the following terms -

"I find that the plaintiff was totally incapacitated for work for a period of approximately three months, that is thirteen weeks, and that the plaintiff thereafter was partially incapacitated until the time she left for Lebanon. On my calculations then there will be thirteen weeks at $300 a week which is $3,900. I find thereafter that she was partially incapacitated for work and suffered a diminished earning for a further thirty one weeks by which time she left for Lebanon, therefore there will be thirty one weeks at $50 a week which works out at $1,550 and on that total it is $5,450. Doing the best I can on interest, and having regard to the Supreme Court rates, I roughly averaged it out to be 12 per cent and I run that from the middle of those two periods so from about June 1985 to twelve years and I find that the interest at 12 per cent for twelve years on that figure is $7,848. I find that the general damages is $20,000. Out of pocket which have been agreed upon is $3,822.72."

10 The grounds of appeal in the notice of appeal as filed were not particularly informative, and it was necessary that leave be granted to expand them in order that there might be added a ground that his Honour failed to give proper reasons for his decision. The matters on which Mrs Boutros relied in this appeal can be found in the written submissions filed on her behalf, the oral submissions falling within them and amplifying them. I will not deal with those matters in the same order as they were dealt with in submissions, but in what I think is perhaps a more logical order.

11 The first matter was that his Honour had not provided reasons so as to expose the process by which he came to his conclusions, referring to Souloumezis v Dudley (Holdings) Pty Ltd (1987) 1 NSWLR 247. This was taken up in two ways.

12 One was that his Honour's stated preference for the evidence of particular doctors was not sufficient exposure of his reasons, and that the reference to inconsistencies in Mrs Boutros' evidence, as I have earlier set it out, was similarly inadequate. However, it is sufficient in a case such as this if by his reasons the judge informs the parties of "the broad outline and constituent facts of the reasoning on which he has acted" (see per Mahoney JA at 273) or has articulated "the essential ground or grounds upon which his decision rests" (see per McHugh JA at 280). The judgment was given following the challenge to the evidence of Mrs Boutros to which I have referred. It must have been all fresh in the minds of those concerned, and what his Honour was referring to could readily enough be seen and judged by going to the transcript and other evidence. I do not think it was necessary in the circumstances for his Honour to detail, or even illustrate, the inconsistencies in the evidence, whether internal or with the film or the histories given to the doctors. A reading of the transcript provides abundant grounds, whatever quibbling there may be with some particular instances, for his Honour's conclusion that Mrs Boutros's evidence was not reliable, and he had the advantage of observing her. Further, for the reasons I have indicated, his Honour's reasoning to acceptance of the evidence of Drs Bentivoglio and Bodel as persuasive, given his opinion as to the reliability of Mrs Boutros and his acceptance of the evidence of her father-in-law, was sufficiently exposed.

13 The other way was that it was said that no reasons were given for the figure of $20,000 for general damages, and that the selection of that figure was "arbitrary, unexplained and inadequate". The assessment of general damages is not a matter of calculation, but often little more than a matter of impression, and the assessment in this case was clearly enough founded on the finding of muscular ligamentous strain sufficient for incapacity for approximately three months and partial incapacity thereafter until the time in 1986. It is quite clear that his Honour rejected Mrs Boutros's claims of a more extensive impact upon her life. As a particular aspect of this, it was said that his Honour had failed to make findings in relation to her future medical, psychiatric and pharmaceutical expenses, but that he did not do so was plainly because he did not accept that there were any sequelae from the accident after the time in 1986. In my opinion, the figure of $20,000 is quite explicable and sufficiently explained on this basis; indeed, it might be thought somewhat generous to Mrs Boutros.

14 Whether as a separate matter or as part of this first matter, it was said that his Honour did not deal with the reports and evidence of Dr Maniam, to the effect that CT scans showed bulges at C4-5 and C5-6 to which in his opinion trauma had contributed, and did not deal with Mrs Boutros's complaints of anxiety and psychiatric injury the subject of a report from Dr Ali diagnosing adjustment disorder and panic/phobic phenomena.

15 The point about the evidence of Dr Maniam may have been abandoned in the course of oral submissions, and if that was so it was rightly abandoned. Dr Bodel noted the CT scan to which Dr Maniam had referred and said that further x-rays, including a later CT scan, indicated no evidence of disc protrusion. Dr Bodel's opinion therefore took account of what Dr Maniam had relied on. His Honour's reasons included that he had read carefully the medical evidence before him, and while he did not specifically refer to it in my view it is clear that he paid appropriate regard to Dr Maniam's evidence, and by his preference for that (relevantly) of Dr Bodel showed why he did not accept it.

16 As to the other point, given his other findings I do not think it was necessary for his Honour to deal specifically with Mrs Boutros's complaints of anxiety and psychiatric injury or with Dr Ali's report, because his findings necessarily involved that he did not accept those complaints and did not accept the basis for Dr Ali's opinion. It should not be overlooked that there was a psychiatric report in opposition to that of Dr Ali, to the effect that Mrs Boutros had no psychiatric injury, and in his consideration of the evidence of all of the doctors his Honour was entitled to accept that alternative opinion on the basis that, Mrs Boutros not being a reliable witness, the foundation for Dr Ali's report was not made out.

17 The second matter was that his Honour had misunderstood the evidence of Mrs Boutros's father-in-law, and that the evidence in fact supported her case. If that were so, then a significant element in his Honour's reasoning to the limited nature and duration of Mrs Boutros's injury would be undermined.

18 The immediately relevant evidence of Mr Boutros was this -

"Q. She didn't appear to you to be physically crippled at the time your son met her? A. I didn't realise it, after that she didn't stay for a long time in Lebanon in order to see her going and coming and all this, but when I came to Australia I found out that she has problems or difficulties and she wakes up late in the morning.

Q. You saw nothing about the way she moved in Lebanon that told you that she was injured, is that so? A. Not as the same level as I saw in Australia.

HIS HONOUR: Q. What was that, I didn't get that? A. Not the same level as you saw in Australia -

SHORE: Q. But do you say that you saw that she was injured in Lebanon? A. No, I -

HIS HONOUR: Answer the question and then I want to say something.

WITNESS: No, when I came to Australia I found out, I swore on the bible to say the truth."

As well, Mr Boutros had earlier said, and later repeated, that Mrs Boutros was always complaining of pain and did not or would not get out of bed until nine.

19 I do not think that his Honour misunderstood this evidence, but more important the interpretation which his Honour placed upon it was one which was very much open to him and was affected by his consideration of the balance of the evidence in the case, including the view he took of Mrs Boutros. It was said that implicit in the reference in the evidence to "the same level as I saw in Australia" was that Mr Boutros had in truth observed some effects of the injury while Mrs Boutros was in Lebanon, and that he observed the effects of the injury in later years in Australia. It is in my view quite plain that Mr Boutros said that he did not observe anything indicating Mrs Boutros's injury when she was in Lebanon, and his evidence as to the later years was very indirect. Apart from the reference to complaints of pain, he said that he "found out that she has problems or difficulties as she wakes up late in the morning". Mr Boutros lived with his son and daughter-in-law when he came to Australia, and something more detailed in support of her case might have been expected. I do not think that, going beyond what might have been the position while Mrs Boutros was in Lebanon, the evidence favourable to her case from her father-in-law rose above evidence that she complained of the pain in later years, which is consistent with ending of the effects of the accident by the date in 1986 and, for whatever reason, complaints thereafter which his Honour was entitled to find, as he found in relation to the complaints to the doctors, were without true foundation in the accident.

20 The third matter was one of error in arriving at the past economic loss. His Honour awarded $50 a week for a further thirty one weeks marked by Mrs Boutros going to Lebanon. In fact the period from thirteen weeks after 23 January 1985 to June 1986 was fifty eight weeks, and as I have indicated a better appreciation of the evidence meant that the end date to which his Honour was referring was about mid September 1986. There was a mistake, it was readily conceded by the respondent, and an explanation for the mistake is as unnecessary as it is difficult to see. The mistake is readily corrected by adding a further figure for the past economic loss and adjusting the interest, and calculations have been agreed.

21 The fourth matter was that it was said that a finding of total incapacity for three months and thereafter an earning capacity of five-sixths of Mrs Boutros's pre-accident state could not be sustained. There was some reliance placed on her evidence that she tried to return to work on light duties but only lasted two and a half days. That reliance, however, seems to me has the insuperable difficulty that his Honour did not regard Mrs Boutros as a reliable witness, and it is quite plain that he did not accept it. When his Honour had not found Mrs Boutros's evidence reliable and arrived at a longer time than Drs Bentivoglio and Bodel, or certainly Dr Bodel, thought should have passed before the injury completely settled, I think that he took a period during which Mrs Boutros could work at light duties (as Dr Bentivoglio had certified she was able to do) and, in the absence of evidence, arrived at the figure of $50 per week from which came the five-sixths earlier mentioned.

22 There was in fact no evidence from which a capacity to work at light duties could be translated to any particular figure for loss of earning capacity. In those circumstances, it seems to me that rather than give Mrs Boutros nothing, because of the absence of evidence, his Honour made an estimate. The $300 per week for total incapacity was not a large amount and he may well have reasoned that working on light duties would be likely to bring something venturing towards the $300 per week, hence the figure of $50. Whether this be so or not, it seems to me that his Honour was entitled to take a figure as an estimate, and that if he erred, he erred in favour of Mrs Boutros. No reason has been shown to interfere with the figure he took to represent the economic effect of the partial incapacity.

23 It follows that the only matter made out is the mistake in relation to the thirty one weeks. The agreed figures involve a substitution of $7750 for the $5450, adjustment of interest to $10,872 in lieu of the $7,848, and as a result the substitution of a judgment for $42,244.72 in lieu of the judgment for $37,120.70. I propose that there be orders to that effect.

26 BEAZLEY JA: The orders which the Court makes in this matter are as follows:

(2) Substitute for the judgment below the sum of $42,244.72;

(3) The appellant is to pay the respondent's costs of the appeal including the cost of mentions in the Court on 1 and 3 March 1999;

(4) Stand over the motion filed on 26 February 1998 with liberty to the respondent to relist the motion for hearing after the expiry of six months from today's date. Mr Young, by giving that liberty you might anticipate that any arguments you might have about seeking to wait until costs are assessed may not be met with quite the same degree of welcome. Particularly if the appellant has not, during that course of time, been as co-operative as is possible in relation to the assessment of costs. By the same token, that order is not an invitation to the respondent to relist in any event. The matter is only to be relisted if it is not otherwise progressing appropriately.

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