Gulic v O'Neill

Court of Appeal (NSW)|2011-10-04|Before: Campbell JA, Whealy JA, James J, Kirby J, Beazley JA

Judgment 1CAMPBELL JA: I agree with Whealy JA. 2WHEALY JA: Aleksander Gulic (the appellant) brought proceedings in the District Court against Brian O'Neill (the respondent) claiming damages for injuries he sustained in a motor accident which occurred on 23 March 2007. The respondent admitted that he was in breach of his duty of care, but claimed the appellant's negligence had contributed to the accident. There was no dispute at trial that the appellant's injuries had, as a result of assessment, passed the threshold entitling him to damage for non-economic loss. His claim, in addition, extended to damages for past and future economic loss, past and future domestic assistance, and past and future out-of-pocket expenses.

The accident 3The appellant who was 32 at the time was driving to work at around 6am on 23 March 2007. His route took him along the Hume Highway at Yagoona. He had been travelling the same way to work over the previous 10 months. The appellant had said that he had driven on this road to work "most days" over that period. He knew that the intersection of the Hume Highway and Auburn Road at Yagoona was a major intersection, and he knew that drivers had the ability to turn right in front of eastbound traffic at the intersection. 4The Hume Highway at this point in Yagoona is a 6 lane highway with 3 lanes on each side. The appellant was driving in an easterly direction towards the city and the respondent was driving in a westerly direction on the opposite side of the highway. Both vehicles were approaching the intersection with Auburn Road. The respondent stopped at the intersection intending to make a right hand turn from the Hume Highway into Auburn Road, that is to make a manoeuvre across the path of traffic approaching from the west. The respondent commenced his manoeuvre, but before he had cleared the intersection, the front of the appellant's vehicle collided with the rear door and rear section of the respondent's vehicle. The appellant had been driving in the third lane, that is the lane nearest to the kerb. 5The respondent conceded that he had formed the view, while he waited at the traffic lights, that he could safely turn right into Auburn Road before a truck approaching in the opposite direction in the centre lane reached the intersection. It is clear that he took a risk by making this manoeuvre without knowing whether, on the far side of the truck, there may have been another vehicle approaching the intersection. It was a risk because the truck obscured his vision of the far lane. The respondent said that he first noticed the appellant's vehicle only a matter of a quarter of a second before the two cars came into collision. For his part, the appellant said that he saw the respondent's vehicle for the first time when it was about 2 or 3 metres from him. It was dark, but not completely dark, and each driver thought that he probably had his lights on at the time. 6The appellant admitted that he knew the intersection was a major one, and that he knew that people turned right in front of eastbound traffic from time to time. He had been travelling at 70km per hour before approaching the intersection. At this point, there was a sign reducing the speed limit to 60km per hour. He lifted his foot from the accelerator to slow down, but estimated that, at the time of the collision, his car was travelling at 65 to 70km per hour (initially, he thought he had been travelling at 20 to 30 km per hour, but in cross-examination, agreed with the higher travelling speed). The extensive damage caused to his car in the collision would suggest that the later estimate was the more reliable one. 7The respondent, while admitting that he had been negligent in making the right hand turn in the way he did, argued at trial that the appellant had been guilty of contributory negligence. It was argued that the appellant had been travelling at a faster speed than the truck in the central lane, and had not taken adequate precautions as he approached the intersection to allow for the possibility that a vehicle might be turning right up ahead. 8There was one issue of factual dispute between the appellant and the respondent. The appellant maintained that there was no truck in the centre lane next to him. The primary judge, however, accepted this aspect of the respondent's version. She found that the appellant had been guilty of contributory negligence. This finding was based on, first, the appellant's familiarity with the intersection, and his awareness that vehicles turned right from the Hume Highway into Auburn Road. Secondly, the primary judge found that, in the circumstances, the appellant should have been aware that a vehicle might be turning from the Hume Highway into Auburn Road. He should have appreciated that, not only was his view of any such vehicle obstructed by the truck, but the view of the driver of that other vehicle would have been similarly obstructed. Accordingly, there was a lack of caution on his part as he approached the intersection and this represented his negligence. Her Honour, however, accepted that the major proportion of responsibility should fall on the respondent. She assessed the appellant's contributory negligence at 25 per cent. On the liability issue, the appellant asserts in this appeal that he ought not to have been found guilty of contributory negligence at all. Secondly, he maintains that if there were any negligence on his part, the apportionment should have been much less than that actually determined by the primary judge.

Damages 9The appellant argues that the primary judge erred in relation to non-economic loss, the extent of his injuries and disabilities, economic loss and future medical and treatment expenses. Judgment was entered in the sum of $216,513.11, comprising the following: Non-economic loss $50,000 Past and future economic loss (including superannuation) $200,000 Past gratuitous care Nil Future commercial care $29,145 Past out-of-pocket expenses $4,539.15 Future out-of-pocket expenses $5,000 TOTAL $288,684.15 Less 25% contributory negligence $216,513.11

A preliminary matter 10The appellant filed a Notice of Intention to Appeal on 22 November 2010. However, the Notice of Appeal was not filed until 17 February 2011, some 3 days after the last date required for filing. It was not served until 18 March 2011. By motion, the appellant seeks leave to extend the time for filing of a Notice of Appeal, and asks that leave be granted nunc pro tunc. There is an affidavit from Mr Petrovich, the solicitor for the appellant. This explains that the failure to file within time occurred simply because of a clerical error. Mr Rewell SC (appearing for the respondent) made no submissions in opposition to the grant of leave, and indicated that there was no prejudice to his side. In those circumstances, I consider that the order sought in the Notice of Motion should be made and the appeal allowed to continue.

Liability / Contributory Negligence 11Mr Baran of counsel appeared for the appellant, both at trial and on the hearing of the appeal. Counsel's argument may be briefly summarised on the liability issue. The appellant no longer disputed that there was a truck next to the appellant's vehicle. Mr Baran argued that, in all the circumstances, it could be concluded that the respondent had proceeded to make his right hand turn with no possible view of the curb-side lane, and every reason to believe that there may well have been a vehicle travelling in that lane in an easterly direction. He maintained that the finding made by the primary judge as to contributory negligence was simply unrealistic and unreasonable. The appellant had been proceeding at a lawful speed through the intersection. He could not have contemplated that a driver coming in the other direction would have attempted to make a right hand turn until the traffic was clear to enable him to do so. Finally, Mr Baran argued that the manoeuvre made by the respondent had been "dangerous", and he had failed to take any care whatsoever to ensure that he would not collide with a vehicle travelling in the kerb-side lane in the opposite direction to him. 12Mr Rewell SC argued that the findings made by her Honour on liability should not be disturbed. It was clear, on the facts she found, that neither driver saw the other until immediately before the point of collision. It was clear that there must have been another vehicle in the central lane, and that this was the reason neither driver saw the other. Mr Rewell submitted that the appellant must have been driving at a speed faster than the truck, and that he conceded he was travelling at between 65 and 70 km per hour, immediately prior to the collision. The appellant knew the intersection and knew other drivers turned right there. Mr Rewell submitted that each driver's vision was obscured, and each took a chance. He accepted that his client took "the greater chance" but submitted that the plaintiff was required to observe caution as he approached the intersection and, in the circumstances, had failed to do so. 13In my opinion, her Honour's finding that the appellant was guilty of contributory negligence ought not be overturned. The facts, as she found them, were plainly open to her and she has not been shown to be incorrect in coming to the conclusions she did. Mr Rewell is correct in submitting that each driver found himself in a similar position requiring the need to proceed with caution, because of the presence of the truck in the central lane. However, he rightly accepted that the respondent had to bear the greater burden on liability, because it was the respondent who made the attempt to turn right without knowing whether there was a vehicle coming in the far kerb-side lane. The appellant's admission as to the speed at which he was travelling, the extent of the damage to his car and the fact that he collided with the passenger and rear portion of the turning vehicle, taken together, demonstrate that he had not exercised the caution a reasonable driver ought to have as he approached the intersection. 14Mr Baran is on surer ground, however, when he argues that the apportionment was wrongly made. In my opinion, her Honour's finding failed to give adequate recognition to the degree to which, in all the circumstances, the respondent had been responsible for this accident. It was highly negligent on his part to attempt to make right hand turn across 3 lanes of traffic in circumstances where he simply did not know whether a vehicle was travelling in the kerb-side lane. I recognise, of course, the force of the principle that requires that intermediate and ultimate appellant courts show restraint in reviewing a primary judge's apportionment of contributory negligence ( Podrebersek v Australian Iron & Steel Ltd (1985) 59 ALR 529 at 532 - 533; Roads & Traffic Authority NSW v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J; Manly Council v Byrne [2004] NSWCA 123 at [103] - [105] and the cases there mentioned; Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA). Nevertheless, this is one of those rare cases where there is a marked misapplication of the apportionment exercise, requiring intervention. 15In my opinion, the apportionment that fairly reflects each driver's respective contribution to the accident is that the appellant's contributory negligence should be assessed at 10 per cent. The respondent should be held responsible for 90 per cent of the negligence involved.

Damages - credit findings 16It should be said at the outset that the primary judge made findings against the appellant that significantly reflected upon his credit in relation to most aspects of the damages claim. Her Honour found, for example, that the appellant in his trial evidence had been evasive in answering questions about his work since the accident and did not volunteer the periods during which he had worked since 2007. Further, her Honour found that the appellant had exaggerated his level of disability for the purpose of the District Court proceedings. She noted that there was a "difference in presentation between treating and qualified doctors" and expressed her satisfaction that this was attributable to the respondent "exaggerating his level of disability". There are other matters as well. It may be convenient to set out in full the findings on credit (Red, 16, G - 18, K):- Credit I accept the submission made by counsel for the defendant that the plaintiff's evidence is unreliable. In making this finding I have taken into account the following: (1)I prefer the evidence of the defendant to the plaintiff as to the manner in which the accident occurred. The presence of a truck in the centre lane is the only reasonable explanation for both drivers failing to see each other until just before impact. (2)The plaintiff's failure to volunteer the periods during which he has worked since the accident. In his evidence in chief he mentioned a return to work on light duties for one month shortly after the accident and a job where he tried to apply silicon between walls and shower screens but found it too painful. He said he had done no other work since the accident. (3)On cross examination I am satisfied that he was evasive in answering questions about his work since the accident. He was cross examined in relation to holding a job as a leading hand from 28 December 2007 listed in the chronology used as an aide memoire. At first the plaintiff said he was not sure whether that was the job where he had worked on the shower screens. He later said that the only leading hand position he had held was when he was gyprocking. He could not remember the name of the company. He thought he had worked there for about a year. (4)The plaintiff was then cross examined in relation to his treating general practitioner's note made in April 2008 recording that he had been sacked from a job. The plaintiff said in evidence that it had occurred two years ago and he really couldn't remember all the details. He had been sacked but he could not remember if he got another job. He said it was not unusual to be sacked because one day you work for one company and the next day you're working for somebody else. (5)The plaintiff was then cross examined in relation to his treating general practitioner's note on 27 May 2008 that he was working full-time. The plaintiff said he had to work full time five days a week or leave the job. (6)The evidence from the members of his family was equally unreliable. His father who has lived in the same house as the plaintiff since 2003, initially said that the plaintiff had never worked after the injury. He then said that the plaintiff had worked a little bit after the accident but he could not remember the date. (7)The plaintiff's wife had even more difficulty remembering details about this issue although she has also lived with the plaintiff since the accident. She said he worked a little bit after the accident. At the beginning of 2008 he had worked for a friend when he had some work for her husband. It was not a real job and payment was very poor. She said she really did not know whether in May 2008 he had been working full-time, she thought he had worked only on call doing just little things. She did not know when was the last time that he had worked. (8)The difference in presentation between treating and qualified doctors which I am satisfied is attributable to the plaintiff exaggerating his level of disability for these proceedings. (9)The plaintiff attending his treating general practitioner Dr Todorovic in early 2008. On 27 May 2008 the doctor recorded that while the plaintiff was having difficulty at work with his left shoulder and back pain and was feeling depressed, he was working full time. (10)The plaintiff had attended Dr Stephen for the defendant less than one month earlier. The notes on examination include the following: " He was generally hyper-reactive and almost any movement produced complaint. Both dressing and undressing were accomplished with the aid of his mother ". (11)The inconsistency in the evidence in relation to whether the plaintiff sold his own Audi. While this does not impact directly on any issue in the proceedings it did arise as one of the plaintiff's explanations for many cash deposits into his bank account. I am satisfied that the inconsistency impacts on the reliability of the evidence of the plaintiff. (12)The plaintiff said he had owned a grey Audi 2006 for one and a half years and had been forced to sell the car to help cover his living expenses. He sold it for $30,000 from which he paid $6,500 into a bank account on 28 January 2010. When he sold the car he received two receipts, one was given to the buyer and the other to the RTA. He had been paid in cash and could not remember the registration number. (13)However the plaintiff's father said that it was his car and that he had disposed of it approximately a month ago (which would have been August 2010). The plaintiff's father said he had signed the registration papers for the sale. 17In relation to the injuries and disabilities sustained by the appellant in the accident, the primary judge accepted that he had been injured. She accepted that he had sustained injuries to various parts of his body. Further, she accepted that it was likely that he would have "intermittent ongoing pain". However, she did not accept that any pain suffered by the appellant caused or reached a level of disability that the appellant had described either at trial or to the medical practitioners he saw. 18Her Honour noted that the appellant complained of ongoing disabilities primarily throughout the whole of his spine and in his shoulders. In that regard, she noted that the appellant had fractured his sternum and right toe in the accident. The appellant, however, did not make any complaint at trial of any ongoing disability relating to either the sternum or the toe injury. 19It was accepted, by virtue of an MRI scan, that the appellant had suffered an avulsion of the ulnar attachment of the triangular ligament. This right wrist injury did not occasion, at trial, any complaint of any ongoing significant disability in the wrist area. 20The appellant's principal complaint is that, as I have said, he had disabilities caused by the problems in the whole of his spine area and in his right shoulder. However, the primary judge thought that "the weight of the medical evidence" was that the appellant had primarily suffered soft tissue injuries. Her Honour explained her response to the appellant's complaints in these terms (Red, 18, W - 19, P):- ... Doctor Guirgis, his treating orthopaedic surgeon diagnosed a "post traumatic mechanical derangement" of the spine, a diagnosis which is vague and unexplained. Doctor Guirgis thought the plaintiff had developed a chronic pain syndrome which should be combated with treatment. Doctor Ellis, who was qualified by the solicitor for the plaintiff, diagnosed a musculo-ligamentous contusion to the neck and back with an aggravation of degenerative changes. Doctor Matalani, who was qualified by the solicitor for the plaintiff, diagnosed soft tissue injuries and a chronic musculo-ligamentous strain of the neck and back. The plaintiff also relies on evidence from Doctor Kacmanovic, a psychiatrist, and Mr Proulipac, a psychologist. Doctor Kacmanovic diagnosed an adjustment disorder and a major depressive disorder. Mr Proulipac agreed. However, both of these diagnoses were dependent on their acceptance of the plaintiff's complaints of pain caused by the physical injuries sustained in the accident. In this case there is no bony [sic] injury to the spine or significant organic pathology to explain the plaintiff's complaints of pain. Accordingly, I must accept the evidence of the plaintiff to find that he has the level of disability of which he complains. For the reasons I have given, I have not accepted that he is a reliable witness. Further I am not persuaded that his evidence is corroborated by the evidence of his father and wife, which was evasive and inconsistent. I am satisfied that his behaviour at medico-legal examinations is consistent with the plaintiff exaggerating his pain and disability. Lastly I take into account that the plaintiff has, without a satisfactory explanation, failed to take the advice he has been repeatedly given by his general practitioner to undertake exercise. I consider this is also consistent with the plaintiff exaggerating his level of pain. 21It was in those circumstance that her Honour found that she did not accept that the injuries the appellant had sustained caused the level of disability which he claimed. 22On the issue of the appellant's credit, Mr Baran was critical of her Honour's finding that the appellant had failed to volunteer the period during which he had worked since the accident. Her Honour had referred to the appellant's evidence-in-chief that he had mentioned a return to work on light duties for one month shortly after the accident, and that he had then undertaken work involving shower screens for an unstated period of time "but found it too painful". He maintained that he had done no other work. As I have pointed out, her Honour was extremely critical of the appellant, and said she was satisfied that he had been evasive in answering questions in cross-examination about his work since the accident. Mr Baran said her Honour, however, had failed to take into account the fact that there had been histories given by the appellant to doctors, where he did say he had attempted to go back to work and that he was working after the accident. Mr Baran said this raised a Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 issue that made her Honour's findings based on credit "glaringly improbable". 23Mr Rewell responded to this argument by pointing out that her Honour's findings were based upon her conclusions about the appellant drawn from the evidence he gave in the courtroom. For whatever reason, in giving his evidence, he chose to conceal the extent of the work that he had done following the accident. Her Honour, it was submitted, was entitled to take "a dim view" of this, and perfectly entitled to allow it to impact upon the credibility of the appellant's evidence in general. Mr Rewell argued that it simply could not assist the appellant to argue that, although he had been significantly less than frank with the trial judge concerning his post-accident work, he may have been more forthcoming when speaking about it with some of his doctors. In any event, Mr Rewell maintained that a careful examination of the medical reports show that there were significant inconsistencies between what the doctors had recorded the appellant had told them. 24Mr Rewell is, I consider, correct in this last submission. I will digress briefly to record some of the inconsistencies that appear in the reports as to post-accident work. In undertaking this task, however, I bear in mind that it is necessary to exercise a degree of caution in relation to placing reliance upon histories taken by medical practitioners. The need for caution in this area has been stated by this Court on a number of occasions: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2] ; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]. 25Doctor Guirgis (Combined Appeal Book 353) described the appellant as being able to work "occasionally for a friend, assisting the installation of shower screens for a few hours a day, 2 to 3 days per week as required". This report was dated 25 August 2008, following a consultation on 25 August 2008. 26Doctor Elias Matalani (Combined Appeal Book 359 - 360) saw the appellant and provided a report to his solicitors. He said:- Mr Gulic was treated with hydrotherapy. He returned to restricted duties gradually and reduced his hours to two to three days a week whilst prior to the injury he was able to work six days a week. He tells me that he was self-employed, sub-contracting the work, but he had a staff of two to three people. He would only go there for supervision, but was unable to go there every day. He was losing work and had to close his company at the end of June 2008. Afterwards he had difficulties finding work, although he was able to assist a friend who installs shower screens. Two months ago, he commenced working with him on a limited basis, working only approximately nine hours per week. He would just fill gaps with [sic] silicon gun and provide him with some assistance. The consultation that led to this report occurred on 25 August 2008. 27Doctor Habib of Campbelltown saw the appellant on 28 April 2009. At Combined Appeal Book 384, he reported:- Mr Gulic was off work until return to work on 8 May 2007 as gyprocker on light duties. The neck, shoulder and the right wrist pain intensified and he had to go off work from 5 June 2007 as leading hand and mostly in a supervisory capacity... He has continued to work in that capacity at 4 hours a day, 5 days a week. Later in the report, the doctor suggested that the appellant had returned to pre-injury employment, but in a supervisory capacity only. 28Doctor John Stephen saw the appellant on behalf of the insurance company in April 2008. He reported that, "Mr Gulic is working as a gyp-rocker full time. He claims he is not performing his pre-injury duties". 29Doctor Zeman also provided a report for the insurance company. He saw the appellant on 7 July 2009. He reported (Supplementary Combined Appeal Book, 10-14):- When the accident happened, he finished off the job and then stopped. After this, he eventually found some other work. Until 2 months ago, he was going some work helping install shower screens... He was given the work by a friend but said it was only part time and he earned about $30,000 a year. Later, he added:- He closed his business in June 2008 and then began part-time work with a friend installing showers around the same time until about two months ago. 30Doctor Zemen reported to the insurance company concerning information he obtained from the clinical notes of Doctor Todorovich, the appellant's treating doctor. Doctor Zemen interpreted these notes as follows (Supplementary Combined Appeal Book, 17):- He did some supervisory work after the accident... He was doing some foreman work part time in May 2007; he was fit for light duties 15 to 25 hours per week in September and November 2007. He was sacked from his work as a gyprocker in April 2008... He was working part-time in December 2008. 31Doctor Roberts, a psychiatrist, saw the appellant on 7 July 2010. He provided a report to the insurance company which contained the following (Supplementary Combined Appeal Book, 33):- I asked him as to how long it was that he'd been off work and he replied between 2 1/2 years, between 2 and 2 1/2 years, that in the approximately three and a quarter years since the subject motor vehicle accident, he had occasionally worked, he referred to having lost his job. 32I should add that the defendant's doctors were highly suspicious of the appellant. Doctor Stephen (Supplementary Combined Appeal Book, 8) concluded that the appellant's complaints "were not genuine and that if there were any physical basis for such complaints, then the complaints were grossly exaggerated". He noted that an MRI scan of the lumbar spine demonstrated "mild thoraco-lumbar disc degeneration but no abnormality in the lumbar region below this". He stated that the MRI of the cervical spine was normal. That of the thoracic spine showed "minor degenerative change". He added (Supplementary Combined Appeal Book, 6):- What was very clear from the physical examination was that there was florid hyper reaction on the part of Mr Gulic and there were multiple inconsistencies in the form of voluntary restriction of of movement of the neck, lumbar spine, straight leg raising and almost certainly of shoulder movement. It was noteworthy that Mr Gulic was dressed and undressed by his mother. My strong impression was that this was an example of embellishment rather than a matter of need. 33Doctor Zeman reported (Supplementary Combined Appeal Book, 14, 15) that the appellant had reported pain in the spine, "however there has been no identified boney injuries". He said there were "no objective clinical findings of significant organic disease and the investigations had not demonstrated significant organic pathology to explain his alleged complaints of pain". Doctor Zemen noted that the appellant's palms were "heavily calloused, consistent with recent heavy manual work" and that "he had calloused skin at the infrapatellar region consistent with recent prolonged kneeling work". He opined that:- His pains at this stage depend predominantly on factors unrelated to the degree of underlying organic pathology. In my opinion he is currently medically stable and no major treatments or complications are expected as a result of the accident. 34Doctor Roberts (Supplementary Combined Appeal Book, 43) expressed the following opinion:- Mr Gulic is presenting with a constellation of symptoms which, having regard to both his physical presentation and alleged psychiatric presentation, is consistent with malingered illness. He did not consider it reasonable to state on psychiatric grounds that any adjustment disorder or major depression were present. 35The post-accident work history statements recorded in the medical reports reflect inconsistency with the plaintiff's evidence at trial and, as Mr Rewell submitted, they are not altogether consistent with one another. However, it was the plaintiff's presentation in the witness box that was the focus of the criticism levelled at him by the primary judge. In my opinion, the findings on credit are unassailable, and they are important for the resolution of the grounds of appeal relating to damages. Those findings flow through and illuminate almost all of the damages issues, as might be expected.

General damages 36The appellant was awarded $50,000 for non-economic loss. Mr Baran argues that this was unreasonable and should be overturned. Mr Rewell argues that the award fell well within a reasonable range, particularly having regard to the trial judge's findings adverse to the appellant. 37Mr Baran argued that, on non-economic loss, a critical finding is to be found at Red, 21, W:- I accept that the plaintiff does have impairment in his earning capacity because he does have some ongoing pain as a result of the soft tissue injuries he sustained in the accident. It impacts more on this plaintiff than other workers because he has a history of manual work. Earlier, at Red, 19, Q, her Honour said:- It was not submitted and I do not find that the plaintiff was not injured at all in the accident. He did sustain injuries to parts of his body and it is likely that he has intermittent ongoing pain. However, I do not accept that it causes the level of disability the plaintiff described. And finally, there is further reference to this at Red, 19, W:- The plaintiff is 36 years of age. He has sustained injuries to various parts of his body and has some ongoing neck and back pain. I consider it is likely that his level of disability will improve over time. 38Mr Baran submitted that these findings indicated that the primary judge did not accept fully the opinion of, for example, Doctor Stephen, who had suggested the appellant's range of disabilities was mostly exaggerated (he was "not genuine in many of his complaints"). Mr Baran, however, criticised the primary judge's assessment because, contrary to her own findings, she determined in effect that no more than a soft tissue injury was involved, that not being an injury of any great significance. To the contrary, Mr Baran argued, the appellant's medical reports and the range of treatment he had received suggested that the injuries and disabilities he sustained were both genuine and serious. He instanced Doctor Todorovich's notes and the opinions expressed by the treating orthopaedic surgeon, Doctor Guirgis. He stressed, in particular, the opinion of Doctor Ellis (Combined Appeal Book, 354). Reliance was also placed on the reports from the psychiatrist and the psychologist. 39Thirdly, Mr Baran suggested that the rubric, "soft tissue injury" unfairly underestimated the seriousness of the appellant's injuries, particularly having regard to the MRI and CT scan abnormalities. He also placed reliance on the whole person impairment found within the Medical Assessment Service ("MAS") Report carried out by Doctor McGroder. 40It is true that there are references in the medical reports filed on behalf of the appellant that there had been some kind of "rearrangement" of his spine as a consequence of the injury. In his report to the solicitors dated 7 February 2009, Doctor Todorovich, referring to his original clinical examination, expressed a diagnosis that included "post traumatic mechanical derangement of the cervical spine, right shoulder, thoracic spine, lumbar spine, left knee and right wrist". 41Doctor Guirgis, in his report of 9 June 2008, did not refer to the November 2007 MRI of the appellant's spine expressly. He said, however (Combined Appeal Book, 351):- There were symptoms and signs of post traumatic mechanical derangement of the cervical, thoracic and lumbar areas of the spine, with symptoms of right C6 and right L5 radicular irritation. In view of his presentation in the last consultation of 28 April 2008, I arranged for him to have further MRI studies for the lumbar area of the spine. 42Despite this recommendation, it does not appear that any further MRI studies were carried out. At least, it appears to be the position that none was in evidence. 43On 25 June 2008, Doctor Ellis did however make specific mention of the November 2007 MRI studies of the cervical, thoracic and lumbar spines. He said these [Combined Appeal Book, 354, U]:- ... revealed mild disc desiccation or internal disc disruption in the cervical region. No other significant abnormality in cervical or thoracic spine. In the lumbar spine there was desiccation or internal disruption at T12/L1 and L1/2 discs without apparent neurological compromise. In the section of his report headed, "Impression", Doctor Ellis suggested there had been "aggravation of degenerative change in his neck and back" and that, "consequent on the back injury there are secondary effects in his right lower limb, referred pain and neurological deficit" (Combined Appeal Book 355, S - W). 44Doctor Matalani expressed a significantly different opinion. He referred to the November 2007 MRI and said (Combined Appeal Book, 362, P - Q):- MRI on the neck, thoracic and lumbar spines dated 28 November 2007 demonstrated mild desiccation of the disc in the cervical region with minimal cervical spondylotic change. There was desiccation at T12-L1 and L1-L2 intravertible disc spaces without evidence of focal disc protrusion. 45His diagnosis was that the appellant had "suffered soft tissue injuries and chronic musculo-ligamentous strain of the neck and back" (Combined Appeal Book, 364, O). 46Doctor McGroder agreed with Doctor Matalani that there was no evidence of radiculopathy, but did not find dysmetria in the lumbo-sacral regions as Doctor Matalani had. Doctor McGroder referred to Doctor Ellis' report, and stated (Combined Appeal Book, 378, M - Q):- Doctor Ellis estimated impairment. For the cervical spine, he estimate DRE category (III) because of the presence of radiculopathy which was not present on my examination today or that of other examining doctors. He found similarly with the lumbar spine which was once again not present on my examination or of other doctors... Doctor Ellis did not estimate a primary impairment of the right shoulder and felt that this was the result of radiculopathy from the cervical spine. I felt there was more a primary shoulder problem than a radicular referred problem. 47Doctor McGroder noted the adverse comments made by Doctor Stephen. Doctor Stephen, it will be recalled, had come to the conclusion that the appellant's complaints were not genuine and that if there were any physical basis for them, the complaints were grossly exaggerated. Doctor McGroder said that he was "in partial agreement". 48In relation to the MRI, however, he said (Combined Appeal Book, 379,I - L):- Investigations involving MRI's of the total spine did not demonstrate any significant abnormality. There was some minor degenerative changes noted particularly in the cervical spine. 49Doctor McGroder ultimately preferred to describe the injuries to the spine sustained in the accident as "cervical spine strain" and "strains to the thoracic and lumbar spines". Doctor Stephen (Supplementary Combined Appeal Book, 7, U) said:- The MRI scans of the cervical and lumbar spine and right wrist have been performed. In view of the complaints received, the proposed MRIs were reasonable. In the case of the neck and lumbar spine, they showed no significant abnormality. 50And to like effect, Doctor Zemen stated (Supplementary Combined Appeal Book, 13, U):- MRI scan of the cervical and lumbar spine on 26 November 2007 showed minor non-specific disc bulgings at the lower lumbar levels. No spinal cord or nerve root compression was present. There was some minor non-specific degenerative changes consistent with age but there were no fractures, no significant facet joint hypertrophy and no malalignment of the vertebra. (It will also be recalled that in his final comments, Doctor Zemen had said there was no "identified boney injury" and "no objective clinical findings of significant organic disease... to explain his alleged complaints of pain". He pointed out that disc bulging "is a benign finding on CT scans and MRI" and was now not considered to be "pathological"). 51The foregoing analysis demonstrates that the weight of the evidence was clearly in favour of the primary judge's ultimate finding, namely that the injuries to the spine should be treated as soft tissue injuries. Read fairly, I do not understand her Honour to be "downgrading" the injury by the reference to the soft tissue injury. Rather, she was drawing a distinction between soft tissue injury on the one hand, and damage to the boney structure of the spine itself on the other. She appears to have picked up the expression from Doctor Zemen's report (Red Book, 19, J):- In this case, there is no boney injury to the spine or significant organic pathology to explain the plaintiff's complaints of pain. 52In my opinion, her Honour has properly found that there were soft tissue type injuries to the areas surrounding the spine and shoulder of the appellant. She was correct to find, however, that there was no significant organic pathology or injury to the spinal bones so as to warrant the plaintiff's allegations of pain in the back area. She was correct to find that he was exaggerating these, although she accepted that he had " some ongoing neck and back pain" (my emphasis). Her Honour found that the appellant exaggerated his level of pain, that he was not a reliable witness, and that the corroborating evidence of his father and wife was "evasive and inconsistent". These findings were open to the primary judge and have not been shown to be incorrect. Importantly, for the findings in relation to the alleged psychiatric adjustment disorder and the consequent major depressive disorder, her Honour was entitled to find that "his behaviour at medico-legal examinations is consistent with the plaintiff exaggerating his pain and disability". 53Taking the medical evidence overall, I consider that there was justification in the medical evidence for her Honour's findings that, having regard to the nature of the injuries the appellant had sustained, his level of disability would "improve over time". I am not persuaded that her Honour fell into error in assessing non-economic loss at $50,000. In my opinion, especially having regard to the medical evidence and the adverse findings she made concerning the appellant, the amount awarded fell within a reasonable range.

Economic loss 54The primary judge recounted the history of the appellant's work as a gyprock contractor. His company, Alexa Interiors Pty Ltd, had prior to the accident entered into a contract with ID Interiors Pty Limited. The latter was a subcontractor to Meriton, which was erecting 316 units at Rhodes. The appellant's company had been undertaking frameworking and gyprocking on the site. It had been working there for about 10 months. It retained 2 to 4 subcontractors, depending on the urgency and scope of the work to be done. 55Her Honour recounted that, after the accident, the appellant took time off work for 2 to 3 weeks. He had difficulty with the physical work, for example, climbing up and down ladders and scaffolding. He gave instructions to the subcontractors on the site until the job was completed around 1 month later. Her Honour then recounted that the appellant claimed that he expected to obtain 2 other contracts from Meriton for similar work at other sites, each of which was to be more than 400 units. He said that he had not been given those contracts because "he was in pain". He maintained that he would not have been required to re-tender because it was the same kind of work. Nor would they have required him to enter into a new contract. Her Honour, however, was sceptical about these claims. She said (Red, 20, O - P):- ... the likelihood of his obtaining the work or the dates on which the work would have started and finished are unclear. 56The primary judge then addressed the claim made by Mr Baran at trial that, at the time of the accident, the appellant was capable "of generating an income of at least $300,000 gross per annum, being $5,769 per week. Her Honour flatly rejected this submission and gave a number of reasons for it. These were (Red, 20, S - 21, L):- (1)It is more than Alexa's sales revenue in the two years before the accident which was $225,071 (2006) and $256,263 (2007). (2)Alexa's sales revenue is not a measure of the plaintiff's earning capacity. It includes the revenue generated not only from the plaintiff's work but his sub contractors. The company's gross revenue does not take into account all the operating expenses (including the payments to the sub contractors) and the taxation payable by the company. (3)It is significantly more than the plaintiff's annual total business earnings calculated by the plaintiff's expert which were $63,069 (2006) and $51,794 (2007). (4)It is significantly more than the net income calculated by the plaintiff's expert by reference to FMRC business benchmarks [a statistic produced by FMRC (Financial Management Research Centre)] which was $70,763. (5)It is significantly more than the accounting profit of Alexa calculated by the defendant's expert by reference to the taxation returns of $43,991 (2006) and $98,127 (2007). (6)It is significantly more than the plaintiff's personal taxable income calculated by the defendant's expert by reference to the taxation returns $63,162 (2006) and $51,985 (2007). His wife's taxable income (which is income from Alexa and the A & V Gulic Partnership) in those years was $7,562 (2006) and $24,773 (2007). 57Mr Baran had next argued before the primary judge that she should "find an ongoing loss of $2000 net per week from the date of accident less an allowance for the periods he has worked". 58Her Honour was scathing about this submission. She described it as "fanciful". She observed (Red, 21, M - N):- The net loss is claimed at significantly more per week than the plaintiff was earning gross per week at the time of the accident. 59However, her Honour made some findings that were favourable to the appellant. She held that, if the accident had not occurred, it was likely that the appellant would have remained working as a framer and gyprocker through his company, Alexa, for the foreseeable future. She accepted (as I have indicated earlier) that the appellant had an impairment in his earning capacity because he did have "some ongoing pain" as a result of the soft tissue injuries he sustained in the accident. She accepted that this would have impacted more on the appellant than other workers because of his history of manual work. She said (Red, 21, R - U):- However, the trajectory of his likely earnings is more difficult to assess. For the company's revenue to increase it would have incurred the cost of retaining additional sub-contractors. In addition, as the plaintiff said in evidence, the building industry has its ups and downs. This is confirmed by the evidence of the defendant's expert who advised that ABS data showed a downturn in the building industry and the significant drop in the number of new dwellings commenced from 2005 to 2009. 60The matter of more critical substance in her Honour's view was the issue as to the appellant's residual earning capacity which her Honour found to be "significant". She observed that the appellant had "many years experience in the building industry". She observed that he was experienced in supervising workers in the industry and that he was young and capable of improving his English skills, if he applied himself. 61The real difficulty, as her Honour observed, was attempting to calculate with any degree of precision the impairment in his earning capacity, both past and future. Her Honour said (Red, 22, E - H):- I consider that the impairment in the plaintiff's earning capacity, past and future, cannot be mathematically calculated on a weekly basis, because he has not fully disclosed the periods during which he has worked since the accident and he has not exercised his residual earning capacity to mitigate his loss by looking for suitable work. 62Her Honour, in these circumstances, decided to aware "a buffer". This was because of the uncertainty in calculation for earning capacity and the particular problem of ascertaining residual earning capacity. A buffer of $200,000, inclusive of superannuation, for impairment of his earning capacity both past and future was made. 63There were three complaints advanced by Mr Baran. First, counsel argued that her Honour had not taken into account section 126 of the Motor Accidents Compensation Act 1999 (" MACA "). Secondly, Mr Baran was critical of the primary judge for not accepting the likelihood that there would have been significant building contracts awarded to the appellant's company following upon the completion of the contract in progress at the time of the accident. In this regard, the primary judge had been provided with a significant amount of information to come to an appropriate ongoing determination of lost earning capacity. 64Thirdly, the financial reports provided both by the experts for the appellant and the respondent ought to have satisfied her Honour that an appropriate mathematical exercise could have been carried out. Her Honour was wrong in resorting to a buffer in those circumstances. 65There was another matter agitated during the hearing. This was the suggestion that her Honour had further erred by referring (Red, 22, F - H) to the appellant's apparent failure "to mitigate his loss". 66It is convenient to dispose of that argument before returning to the principal matters advanced by Mr Baran. Read fairly, I do not think her Honour intended by the use of the phrase to suggest that an unpleaded defence had been established. Rather, I read her Honour's remarks in the relevant paragraph as simply a conclusion that the appellant's evidence did not enable her to ascertain with any precision the extend of his residual earning capacity because of his failure to disclose the periods during which he had worked following the accident. This was a reference to those matters which I have earlier mentioned above at [25] - [31] and [35]. 67I accept that the primary judge did not specifically mention section 126 of the MACA which provides, briefly, that any award for future economic loss must reflect the "claimant's most likely future circumstances but for the injury", stating the reasons why this is so, and expressed as a percentage of the likelihood of these circumstances occurring. However, her Honour expressed clearly (Red, 21, Q) the findings and assumptions she made as to the appellant's probable future circumstances but for the injuries he sustained in the accident. For example, she found that the appellant did have an impairment to his earning capacity. On the other hand, she found that he retained "a significant residual earning capacity". In the end, the primary judge considered that this case was appropriate for the assessment of lump sum damages or a "buffer" for past and future economic loss. Such an approach is not prohibited by section 126 of the MACA ( Penrith City Council v Parks [2004] NSWCA 201). 68In his written submissions, Mr Rewell pointed out that Parks dealt with a similar provision in the Civil Liability Act 2002 (section 13) to section 126 of the MACA . In that case, a buffer had been awarded by the trial judge without any reference to percentage "vicissitudes" taken into account in assessing the buffer. In that case, Giles JA said:- [5] I consider that it is still open to assess damages by way of a so-called "buffer". The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil. 69In my opinion, read fairly, the award of damages for past and future economic loss did not involve a contravention of section 126 of the MACA . 70In relation to the calculation of economic loss, the appellant had placed reliance on a "forensic economic loss report" prepared by Ms Bateman, a chartered accountant (Combined Appeal Book, 121 - 297). Despite the length of this document, it is not unfair to assess it as, in essence, a series of arithmetic calculations based on a general hypothesis that the appellant's business would have expanded significantly had the accident on 23 March 2007 not occurred. Mr Bland (who prepared a report for the respondent) pointed out (Supplementary Combined Appeal Book, 49) that Ms Bateman's report comprised calculations based on industry benchmark profit amounts published by FMRC Pty Limited. The calculations were not based on the actual profitability of the appellant's business. 71Mindful of this, Mr Baran argued that the primary judge ought to have, at the least, accepted the respondent's report in relation to the calculations Mr Bland had made for past and future economic loss. However, as Mr Rewell pointed out, the respondent's report was based upon an assumption that itself was not proved in the appellant's evidence. Mr Bland had endeavoured to make allowance for the appellant's residual earning capacity by examining his 2009 earnings, and using those figures as a basis for calculating the amount to be subtracted from the maintainable earnings of the appellant's business. Assuming that this was a permissible method of examining the issue of residual earning capacity, Mr Rewell submitted that the appellant's evidence on the point simply did not enable the assumptions made by Mr Bland to be established. This submission, which was plainly accepted by the primary judge, was based upon those inconsistencies referred to above at [22] and following. 72The primary judge's inability to assess with any precision the plaintiff's economic loss did not, of course, mean that the appellant was to be deprived of an award on that basis. Given the primary judge's findings that the appellant did have an impairment in his earning capacity, it was necessary for the primary judge to do the best she could in the circumstances. Given this situation, I am not satisfied that her Honour fell into error in allowing a buffer of $200,000 inclusive of superannuation by way of a cushion for the impairment in the appellant's earning capacity, both past and future. 73When regard is had to her Honour's assessment of the nature of the appellant's injuries, the extent of his disabilities, his exaggeration of those disabilities, and the significance of his residual earning capacity, particularly for supervisory tasks, it cannot be said, in my view, that the amount awarded was inadequate to compensate the appellant for any loss of earning capacity he had genuinely suffered. 74The primary judge was entitled to reject the appellant's submission that he had suffered a loss of $2000 net per week (less amounts actually earned) following upon the accident. I have set out earlier her Honour's reasons for the rejection of this argument. In my opinion, no error has been shown.

Future medical treatment costs 75The primary judge simply recorded that "the plaintiff will take medication from time to time and may attend his general practitioner. I allow $5000". (Earlier, her Honour had indicated that past out-of-pocket expenses had been agreed at $4,539.15). 76Mr Baran submitted the amount awarded was manifestly inadequate and against the weight of the evidence. Counsel submitted that the appellant gave evidence of past treatment. His doctors reported that he had in the past been provided with treatment in the nature of attendances on specialists and others. He had undertaken physiotherapy, hydrotherapy, consulted both a psychiatrist and a clinical psychologist, and had purchased analgesics, anti-depressants and other pain-relief medication. Mr Baran argued that treatment of this kind would be required in the future. 77Mr Rewell referred, however, to the findings that the appellant's complaints and presentation of his symptoms had been exaggerated. Senior counsel submitted that this assessment was plainly open to the primary judge. Doctor Stephens had said that no further treatment was required. Doctor Zelman, a rehabilitation specialist, was of the same view. Doctor Roberts expressed a forceful view that no psychiatric or psychological treatment was warranted. Given the findings made by the primary judge, in my opinion, she correctly concluded that the appellant's future medical treatment needs were appropriately limited to attendances upon a general practitioner. The sum awarded was reasonable. 78In the written submissions an argument had been advanced in support of a ground that her Honour erred in her determination of past and future gratuitous domestic assistance and care. This ground was not pressed at the hearing. There was a further ground that her Honour had erred by failing to make any determination for paid care. This also was not pressed. 79Finally, there was a ground alleging that the appellant had been denied procedural fairness. This ground criticised the reasoning of the primary judge in relation to her determinations of contributory negligence and each of the heads of damage awarded in favour of the appellant. It will be apparent from my examination of each of the issues relied on by the appellant in his grounds of appeal that, in my view, the primary judge gave adequate reasons for each of the findings she made. There is no substance in any claim that the appellant has been denied procedural fairness.

Orders proposed 80I propose the following orders. (1) Leave to extend the time for filing a Notice of Appeal is granted nunc pro tunc ; (2) The appeal is allowed in part; (3) Judgment entered by the primary judge is set aside and in lieu thereof, judgment is entered in the sum of $259,815.73; (4) The appeal is otherwise dismissed.

Costs 81The appellant has succeeded in relation to one aspect of the appeal, namely the apportionment for contributory negligence. In all other respects, the appellant has failed and the respondent has succeeded. As the ground on which the appellant has succeeded is separable from those on which he failed ( James v Surf Road Nominees Pty Limited& Ors [No 2] [2005] NSWCA 296 at [31] - [37]; Elite Protective Personnel Pty Ltd v Salmon [No 2] [2007] NSWCA 373 at [6] - [11]), I propose that each party pay his own costs of the appeal. 82JAMES J: I agree with Whealy 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: 25 November 2011

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Cases Cited (15)