Cameron v Catic

Court of Appeal (NSW)|2020-09-01|Before: Bell P, Macfarlan JA, Payne JA, MacFarlan JA

Solicitors: Self-represented Appellant Vardanega Roberts Solicitors (Respondent) File Number(s): 2019/291624; 2020/67802 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2019] NSWDC 434 Date of Decision: 23 August 2019 Before: Strathdee DCJ File Number(s): 2016/157996

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Factual circumstances

Ms Cameron was born in Fiji in January 1957. After leaving school she had employment in Fiji and continued to work after she married and moved to Australia. She had a variety of jobs including as a service manager/supervisor with Woolworths Ltd and as a machine operator/packer with Addis Pty Ltd. Later, she completed several TAFE courses and was employed as a cashier at a casino.
In September 1998, she commenced employment with Qantas Airways Ltd, largely performing warehousing duties. On 8 March 1999, in the course of performing those duties, she was struck by a forklift and injured. As a result, she received weekly workers compensation payments for about three years and in 2008 commenced receiving a Disability Support Pension.
Between her work accident in 1999 and her motor vehicle accident on 10 July 2013, Ms Cameron appears not to have been employed, apart from a brief return to Qantas on light duties and a limited period in 2002 when she worked for a telemarketing company.
Following the motor vehicle accident, Ms Cameron was taken by ambulance to Royal North Shore Hospital where she remained for a month before being admitted to a private hospital for rehabilitation for another month.

The judgment at first instance

After summarising the factual background to Ms Cameron's claim, the primary judge referred to Ms Cameron's hospitalisation as a result of the motor vehicle accident and to issues concerning pain and physical limitations that Ms Cameron raised with doctors over the following years. Her Honour summarised the complaints as to her condition that Ms Cameron made in her evidence as follows: "[30] In evidence before me, the plaintiff complained of widespread pain, restriction of movement and physical disability. She also complained of significant psychological difficulties that are ongoing and that she has been unable to drive or do most of her household and personal tasks and has required significant assistance from others."

The lay evidence

The primary judge first referred to evidence given by friends and family of Ms Cameron, principally as to what they observed concerning Ms Cameron's condition before and after the motor vehicle accident. Her Honour largely accepted what they said.
Her Honour then turned to Ms Cameron's evidence, and noted as follows evidence that she gave concerning her work history: 1. After the forklift accident in March 1999, Ms Cameron received workers compensation for about three years. 2. She was not thereafter able to obtain further work at Qantas, but applied for other work. Apart from referring to an unsuccessful job application to Pittwater Council, she was unable to provide details of any further job applications. 3. Some part-time work in telemarketing that she obtained did not last long because it involved a lot of sitting down and "aggravated [her] lower back a bit" (Judgment [50]). 4. She received a Newstart Allowance between 2001 and 2008 and a Disability Support Pension thereafter. She continues to receive the latter. 5. Her attempts to retrain herself after the forklift accident were unsuccessful. 6. She cared for some time for her mother who died in 2011. She was considering doing some further retraining when she had the motor vehicle accident. At that time she felt fit and well and was keen to return to the workforce.
The primary judge then quoted the following evidence that Ms Cameron gave concerning her health before and after the motor vehicle accident: "[54] Her evidence was as follows: (T p18): 'Q. Can I ask you about how your health was prior to the car accident, okay ? Did you still have the skin condition ? A. On and off, it wasn't that bad. Q. How was your neck and back, prior to the - A. It was very good, I managed my life, I looked after my mum, I drove around, I did my own shopping, I cleaned my own house. I went out with my friends, my social life was full, I had everything going for me. I didn't need assistance from anyone, so I was managing my life really, really well.' [55] Further, the plaintiff was asked about her condition after the MVA [motor vehicle accident]: (T p22-23) 'Q. Now, what do you say you can't do around the house? A. I can't vacuum very well. I'm in a lot of chronic pain. I - my life has been destroyed by this accident, because now I can't vacuum a lot…." Q. What physical problems were you still having, if any? A. I was having a lot of physical problems in my - my ankle kept getting infected in between periods. It- it would be swollen, and I had problems, so I had to see the specialist again in regards to my ankle, and I had severe headaches all the time, continuous. It was from the accident just went worse. I had scans done and - and- and seen Dr Neil Simon as well. My GP sent me off for a scan and it showed I had a stroke.' [56] Then, further: (T p26) 'Q. So can I bring you now forward to today, and could you perhaps tell us what physical symptoms you have still? A. I have severe headaches all the time. I have severe neck pain all the time. My jaw keeps getting locked as well, I need my teeth to be fixed. I have spinal pain in my thoracic and in my lower back. My arms are sore. I have still numbness of my chest and shoulders are painful. Also, I have pain mostly on the right side, my hips, and my lower pain - lower back pain is really bad. I have pains in my knees and my foot and ankle. I - sorry, may I? Q. Please? A. I still have pain in both my breasts which was in accident, so - '"
The primary judge summarised the position at that point as follows: "[57] The general tenor of the plaintiff's evidence in chief was that the symptoms of her injuries sustained at Qantas had pretty much resolved prior to the MVA and that she had been ready and willing to return to work. In my view, the plaintiff was deliberately trying to down play the effect of the injuries in the Qantas accident and exaggerate the disabilities and symptoms she had consequent upon the MVA."

The Qantas proceedings

Before completion of Ms Cameron's cross examination, the hearing was adjourned to enable the respondent to obtain documents from court files for proceedings that Ms Cameron had brought against Qantas in relation to her forklift accident. Those proceedings were pursued over a period of about four years from early 2008 to early 2012. Ms Cameron first commenced District Court proceedings which were later settled but she then sought to have the settlement set aside. When she was unsuccessful in doing that, she commenced proceedings against Qantas on 13 May 2010 by filing a statement of claim in the Supreme Court. These were eventually struck out, with an application to the High Court for special leave to appeal against the strike out being dismissed on 9 February 2012.
Ms Cameron subsequently filed a summons in the Supreme Court on 5 December 2013 commencing further proceedings against Qantas and proceedings against her former solicitor. In the course of them, she swore an affidavit of 10 March 2014 (being approximately 8 months after her motor vehicle accident) and gave oral evidence before Rothman J.
In her judgment in the motor vehicle accident proceedings, Strathdee DCJ quoted the following passages from the cross examination of Ms Cameron in those proceedings concerning the affidavit she had sworn and the evidence she had given in the Qantas summons proceedings: "[66] The plaintiff was further cross-examined about these documents and the proceedings in general. The following interchanges occurred: (T p107-109) 'Q. Between February 2012 and the date of the accident, you were still in contact with Mr Joyce from Qantas, asking to be compensated because you were still suffering from the effects, during that time, from the Qantas accident, weren't you? A. I was. Q. And you represented to Qantas, right up until the time of the motor vehicle accident, and after the motor vehicle accident, that you were severely disabled at that time as a result of the Qantas accident, didn't you? A. I never said I was severely disabled……. Q. And do you tell us today that whenever you asked for compensation arising or relating to the Qantas accident, that you've told the truth? A. Yes Q. In paragraph 10 of this document [the Supreme Court Statement of Claim], on page 7, you wrote, "The plaintiff suffered serious internal injuries to her body and lives in chronic pain all the time and is still waiting to have seven surgeries." A. Yes Q. Was that true? A. Yes………… Q. Ms Cameron, were you exaggerating when you includ[ed] this information - A. No. Q. --- in your Statement of Claim? A. When I made the statement in the statement of claim, I was suffering those things. That's the statement of claim that I made.' [67] … when asked about the documents filed in the Qantas proceedings, and [an affidavit] signed on 10 March 2014 (part of Exhibit 4), the following is recorded: (T p139): 'Q. Could you turn to pages 71 and 72. Do you see that, that's a document [affidavit] you signed on 10 March 2014? A. Yes. Q. That's nine months after the motor vehicle accident, isn't it? A. Yes. Q. And you took it to the Supreme Court and filed it? A. Yes. Q. You were still seeking damages from Qantas? A. Yes Q. And you wrote, in paragraph 1 on page 72: "I - that I, the severely injured plaintiff seek contempt of Court orders [sic]." You wrote that, didn't you? A. From the Qantas accident, yes. Q. I'm just asking - A., Yes Q. --you about what you wrote, the important part being that you wrote: "I the severely injured plaintiff." A. Yes. Q. You considered yourself at this time to be severely injured in consequence of the Qantas accident, didn't you? A. Yes.' [68] In the Qantas [summons] proceedings, the plaintiff was seeking in excess of $10 million compensation from Qantas and her former solicitor. On 1 April 2014 the plaintiff appeared before Rothman J in person on the plaintiff's summons and Qantas' application to have the summons dismissed and to have the plaintiff declared a vexatious litigant. Parts of that Transcript (Exhibit 3) were put to the plaintiff: (T p145-146) 'Q. You said this to [Rothman J] in court: "I seek all the orders in my notice of motion because this has been an extremely horrible accident and my life has been destroyed because of it." That's what - A. That's related to the Qantas accident. Q. Yes. That's what - A. Yes Q. --you said to Rothman J, didn't you, in April 2014, some ten months after the car accident. A. It relates to the Qantas accident, yes. Q. And you were telling a judge of the Supreme Court of New South Wales that you considered that your life had been destroyed as a result of the Qantas accident, didn't you? A. Yes. Q. Were you telling the truth at that time? A. Yes Q. That is after you had been involved in the car accident by nine or ten months? A. Everything I said in my submissions and affidavits and forms all related to the Qantas accident, that related to the Qantas accident. Q. You see, earlier today you've given evidence on a number of occasions that you thought your life had been ruined up until the time of the car accident, then you has the car accident, and then you really understood how your life had been ruined, ie it was much worse. That's what you said, isn't it, today? A. Yes, I did. Q. And you didn't say anything like that to Rothman J in the Supreme Court, did you, you didn't say to him, look, I had this Qantas accident and life was pretty bad, but your Honour, I've since had a car accident and now my life is so much worse, did you? A. No I didn't.'"

Conclusions on Ms Cameron's credibility

The primary judge stated her conclusions concerning Ms Cameron's credibility as follows: "[70] To my observations the plaintiff was not a witness of truth. In her examination in chief, and in her cross-examination prior to the production of the Supreme Court file relating to the Qantas proceedings, her evidence was such that the Qantas accident was only causing her minimal disability as the effects of those injuries had all but subsided prior to the MVA. [71] Once the Supreme Court file had been produced, it appeared to me that she would tailor her answers to say things that she thought she might not be caught out on. During that cross-examination the plaintiff was dramatic, evasive and resentful. I am of the view that the plaintiff would say anything that she thought might assist her case, regardless of its veracity. [72] It was submitted by counsel for the defendant that there are really only two possibilities, either the plaintiff has lied to me in these proceedings, or she lied to the Supreme Court in the Qantas proceedings. Logically, that must be correct. I cannot know what parts of her evidence are true or otherwise, and therefore unless there is independent corroborative evidence to support what she has said, I do not believe her."

The medical evidence

The primary judge identified the evidence of Dr James Bodel and Dr John Cummine as the most important of the opinions of the orthopaedic specialists who gave evidence or provided reports to the Court. Her Honour said that these experts agreed that Ms Cameron was presently impaired for all forms of employment (Judgment [77]) and: "[76] Both doctors agreed that the plaintiff possessed pre-accident medical conditions which impacted on her functional capacity primarily relating to the workplace accident at Qantas in 1999. Every area of which she complained at the time of their respective examinations were symptomatic before the MVA, and they agree that as a result of the MVA, the plaintiff would have required four to six months recovery from the injuries she sustained in that accident and the subsequent surgeries."
Her Honour then referred to the other medical evidence including from Ms Cameron's treating psychiatrist and orthopaedic specialists. None of that evidence contradicted the conclusions of Drs Bodel and Cummine.

Conclusions

As her Honour did not accept Ms Cameron as a witness of truth and there was "virtually no independent corroborative evidence" (Judgment [92]) of her intention at the time of the motor vehicle accident to return to work, her Honour said that she could not find that Ms Cameron did in fact have that intention. Her Honour contrasted Ms Cameron's evidence before her with that which she gave before Rothman J in the proceedings against Qantas. In the Qantas proceedings Ms Cameron told Rothman J that the forklift accident had ruined her life whereas in the proceedings against Mr Catic she advanced a contrary position. In particular, Ms Cameron had pursued the Qantas proceedings on the basis that she had sustained serious injuries in the forklift accident which rendered her permanently unfit for employment and required multiple surgeries (Judgment [97(10)]). In those circumstances, her Honour was not persuaded on the balance of probabilities that Ms Cameron had suffered any economic loss or loss of earning capacity as a consequence of the motor vehicle accident.
Her Honour concluded that immediately prior to the motor vehicle accident, Ms Cameron "had no plans to either attempt retraining or to obtain employment. She had not done so in any meaningful way since her termination by Qantas" (Judgment [97(13)]). After the motor vehicle accident, Ms Cameron continued to pursue her claims for damages against Qantas and the solicitors who had formerly acted for her and in doing so she alleged that she continued to be significantly disabled by the injuries sustained in the forklift accident. Her Honour concluded that, for the purposes of s 126 of the Motor Accidents Compensation Act 1999 (NSW), Ms Cameron's "most likely future circumstances but for the injury [sustained in the motor vehicle accident] were that she would continue to receive a Disability Support Pension until retirement age" (Judgment [97(20)]). Her Honour therefore found that Ms Cameron was not entitled to any damages in respect of economic loss, past or future.
As to other heads of damages, her Honour concluded: 1. By reason of the operation of s 131 of the Motor Accidents Compensation Act 1999 (NSW), Ms Cameron was not entitled to damages for non-economic loss. 2. Ms Cameron was entitled to $31,722.95 in respect of past out-of-pocket expenses but not to any amount in respect of future out-of-pocket expenses. 3. Ms Cameron was entitled to a buffer of $1,000 in respect of past care and assistance but not to any amount in respect of future care. 4. The amount of $9,782.45 should be allowed in respect of Medicare benefits paid.
For these reasons, her Honour found that Ms Cameron was entitled to judgment in the amount of $42,505.40.

Consideration of Ms Cameron's grounds of appeal

Ms Cameron's grounds of appeal are described in [6] above.
Ground (1) must be rejected because, contrary to the assertion in the ground, the primary judge did take into account Ms Cameron's hospitalisation as a result of the motor vehicle accident.
It is not clear, even from Ms Cameron's written submissions, what the evidence is which Ground (2) alleges was given "undue weight". It seems probable however that she intended it as a reference to the evidence that she gave in the Qantas proceedings. That evidence was however highly relevant to assessing Ms Cameron's credibility and her physical and mental condition at the time of the motor vehicle accident. The primary judge was entitled to give it the considerable weight that she gave it. In any event, the medical evidence was not inconsistent with that evidence. Indeed, her Honour's analysis of the medical evidence demonstrated that it was consistent.
In referring to "an irrelevant consideration", Ground (3) appears also to be referring to the evidence given by Ms Cameron in the Qantas proceedings. The same response as for Ground (2) is therefore applicable.
Ground (4) should be rejected because the primary judge considered Ms Cameron's evidence in the motor vehicle accident proceedings and, for entirely rational reasons, rejected it.
As to Ground (5), Ms Cameron has not demonstrated any error in the primary judge's costs orders made after Mr Catic's offer of compromise was made available to the Court. Indeed, the orders made were consistent with those ordinarily made when, as here, a plaintiff recovers less than an amount offered in an unaccepted offer of compromise made by the other party (see Division 3 of Part 42 of the Uniform Civil Procedure Rules 2005 (NSW)).
Grounds (6) to (10) concern the circumstances of the motor vehicle accident and Mr Catic's conduct in and after it. As I have already noted, the matters referred to in the grounds are irrelevant because liability was not in issue.
Ground (11) alleging that the primary judge overlooked Ms Cameron's evidence must be rejected as plainly her Honour gave detailed consideration to it, before she decided that it should be rejected.
Grounds (12) and (15) are simply assertions that Ms Cameron has injuries and conditions for which she has not been compensated. Neither identifies any error in her Honour's judgment.
Grounds (13) and (14) are concerned with alleged conduct of Mr Catic. Ms Cameron did not refer the Court to any evidence that would substantiate the allegations but in any event the allegations do not identify any error in her Honour's assessment of damages.
Before concluding in relation to the merits of Ms Cameron's challenges to the primary judgment, it is appropriate, as Ms Cameron is a self-represented litigant, to consider their general import without regard to the deficiencies in articulation of the particular grounds that she advances. In essence, Ms Cameron complains that the primary judge rejected her evidence and, as a consequence, found that she had not established that she was ready to return to work when the motor vehicle accident occurred or that her medical conditions are attributable to that accident. Whilst there was some limited supportive evidence from friends and family of Ms Cameron, the primary judge did not treat that evidence as being of any significant assistance, and no reason has been advanced for this Court to take a different view. As a result Ms Cameron's case, at least in terms of lay evidence, depended on acceptance of her own evidence.
The primary judge's rejection of Ms Cameron's evidence was a credit-based finding. To succeed on appeal, Ms Cameron had therefore to show that the primary judge's findings were contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Queensland v Masson [2020] HCA 28 at [119]). Ms Cameron did not do this. On the contrary, her Honour's conclusions were firmly founded on rational bases. In particular, her Honour found that Ms Cameron's evidence in the Qantas proceedings was starkly inconsistent with the evidence that she gave in these proceedings prior to production to the Court of the material relating to the Qantas proceedings. When questioned, Ms Cameron was unable to give any adequate explanation for the discrepancy. As well, her Honour examined the expert medical evidence and found that it did not support Ms Cameron's case. As I have said, her Honour concluded that the most important of the orthopaedic specialist opinions were that Ms Cameron suffered from the medical conditions she alleged prior to the motor vehicle accident and that every condition of which she complained at the time of the experts' examinations of her were symptomatic before the motor vehicle accident (Judgment [76]).

Conclusions

As I do not consider that Ms Cameron has established that the primary judge erred, it is unnecessary to address Mr Catic's Notice of Contention which sought to have her Honour's judgment upheld on alternative grounds to those given in the judgment.
In conclusion I note that an application by Ms Cameron to adduce fresh evidence on appeal was dismissed at the hearing in this Court, for the reasons then given.
For the reasons I have given above, I propose the following orders: 1. Appeal dismissed with costs. 2. Summons for leave to appeal dismissed with costs.
PAYNE JA: I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2020

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Judgment (13 paragraphs)

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