Kendirjian v Ayoub [2008] NSWCA 194 | Case summary

Kendirjian v Ayoub [2008] NSWCA 194 | Case summary | Zoe

Primary judgment 12 I set out below the critical evidence recorded, and findings made, by the primary judge. 13 After the accident the appellant said he did not return to work for about two and a half months. He complained of right lower back pain, neck pain and stomach pain. He said he developed a burning feeling when he passed urine. He said that his condition deteriorated and he experienced numbness in his right leg, from the back of the leg into his toes. He said that three months after the accident he was losing balance when he walked because his right leg "would just give in". He said he was dizzy and could not concentrate because of the pain. 14 Nevertheless the appellant said he reopened his workshop in January 2000. He continued to work for about eight months but said he was "gradually losing energy and not able to do the work [he] used to perform, and [he] had no other alternative but to close the business." He said that at the time he closed the business his condition had not improved. He could not bend over to pick up items and he could not lift heavy objects. He said he had shooting pains down his right leg, right arm and shoulder which manifested themselves in the middle of 2000 and gradually got worse. He also complained of shocking headaches and neck pain. He said he could not concentrate. He was becoming increasingly aggressive and less patient with his clients and family because he was always in pain and had headaches. He said he was getting more lower back pain and ankle pain and continued to have a burning feeling when he urinated. 15 The appellant said that his medical condition did not improve after he closed his business. He said he could not drive for longer than 15 or 20 minutes at a time and that his left leg shook. He said that none of his disabilities had improved after he stopped working. He said the shooting pain in his right leg caused him to lose power leading to him falling to the ground. He first experienced that symptom at the end of 2000 after he ceased work. He had not worked since November 2000. 16 The appellant said he was not able to work during 2002 except for one or two occasions when he tried to do an odd job on his own car. He said he could not finish that work because of the pain in his neck, back and headaches. 17 Dr Kam operated on the appellant on 27 June 2003. The appellant said that before the operation he was experiencing sharp pain in his lower back just above his belt line, with occasional pain radiating into his buttocks. Although the referred pain into his legs improved after the operation, he said that his problem with passing urine worsened and he found it necessary to use a catheter to obtain relief. The appellant said that although the feeling he was going to fall improved, his symptoms overall did not improve and deteriorated by 2005 when his condition stabilised. He said that at the time of trial he had difficulty sitting, standing and walking. 18 The primary judge summarised the appellant's presentation at trial as follows: "23. The plaintiff presented a picture of a man who was seriously disabled. He said he could not do up his own shoelaces, he could sit in the bath and wash himself but with pain, he said that he could stand in the shower but could not soap all parts of his body and used a long-handled brush. The plaintiff said that he could not clean a bathroom, and had difficulty vacuuming and preparing food. He said that his low back pain prevented him from successfully completing many types of tasks. He said that he had a restricted driving tolerance.

Although the plaintiff said that his leg symptoms had improved since the surgery, he nevertheless said that his capacity for movement was severely restricted. He said there were no significant tasks he had attempted that he had been able to complete without help. He said this was because of his neck and low back pain, although the neck pain was not as severe as that in his low back." 19 The appellant said that the work of an auto-electrician was "fairly light", although from time to time he had to get into awkward postures. He said that during the period he returned to work in 2000, he did a full range of work as an auto-electrician. He said, however, that there were jobs he normally did which he had to knock back. In cross-examination he agreed that he had deposited large sums of money into his business account notwithstanding the fact that he was not working. The primary judge described his explanation that those deposits involved a loan by his parents and a Mr Samos as "not convincing". His Honour noted (at [30]) that Mr Samos was not called to clarify the position. 20 The respondent tendered video evidence recorded in 2000, 2002 and 2004. The 2000 video showed the appellant working in his auto-electrical business, bending, lifting, lying down and moving in an apparently normal fashion. The primary judge observed that the appellant's complaints recorded in medical reports and his evidence appeared to be different to the video images for those two years. He concluded (at [33]) that the appellant's evidence about physical disability could not always be accepted as reliable and must be approached with considerable reserve where not corroborated. 21 The 2004 video showed the appellant removing and replacing a wing mirror on a four-wheel drive vehicle. When it was put to the appellant that this was the type of work he normally did as an auto-electrician and he could, if desired, have been doing that work at least since 2004, he insisted that he was in pain as he did the work and that he could not perform such work consistently. The primary judge (at [32]) did not find that answer consistent with the images shown on the video. 22 The primary judge made the following observations about the video taken in 2000 and 2002: "34. The video taken in October and November 2000 showed the plaintiff working as an auto-electrician at his premises at Merrylands. The video showed him bending, stooping, lying down on a trolley and walking in a normal fashion. This video was of some significance in this case because the plaintiff said that his physical condition about this time was such that he had to give away his business. It was also relevant to note that the video showed him working as an auto-electrician the day before and the day after he went to a medical appointment arranged by the defendant. The video also showed him as he was attending this appointment. The video also showed the plaintiff on the day he was to attend a medical appointment for the defendant. In my opinion there were marked differences observable in the way that he walked and moved on that day compared to how he appeared at work. 35. I find the video taken in 2000 to be inconsistent with the plaintiff's claim that he was so physically incapacitated that he could not continue working as an auto-electrician as at November 2000.

The video taken in 2002 showed the plaintiff walking normally, although I accept that it did not show the plaintiff engaging in any strenuous activity. Overall, the video evidence (which was not shown to the doctors) undermined the reliability of the plaintiff's evidence about the daily effect that his injuries have had on him." 23 The primary judge noted (at [37]) that the appellant did not call his wife, or his son John who apparently sat in Court during the trial, nor did any acquaintance of the appellant, whether social or business, give evidence. 24 The primary judge found (at [39]), that the appellant sustained "soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident." He said (at [40]) that he was satisfied that the appellant's complaints about disability and chronic pain persuaded Dr Kam to suggest surgery and noted that the appellant's evidence was that after the operation his left leg symptoms improved. 25 The primary judge also accepted (at [42]), that the appellant was feeling frustration and inadequacy compounded by the effects of the accident on family members. He found that the appellant had, as at 2002, "an adjustment disorder with mixed anxiety and depressive mood due to his perception of persistent pain and physical restrictions from the injuries he suffered in the accident." This diagnosis had been made by Mr Anthony, a psychologist who had also opined that the appellant suffered from post-traumatic stress disorder. The primary judge concluded that the appellant's evidence did not afford a factual basis for the latter diagnosis and, accordingly, rejected this aspect of the appellant's case. The appellant did not challenge this conclusion. 26 The appellant tendered two reports from Mr Garofali, a pain management specialist, who reported before and after the appellant's surgery on 12 August 2002 and 6 March 2004 respectively. The later report said, relying upon the appellant's history, that his chronic pain condition had worsened and he should be referred to a psychiatrist. Mr Garofali did not think the appellant would return to employment and concluded that he was not suitable for vocational training. The primary judge (at [44]) rejected Mr Garofali's opinion about the appellant's economic capacity and need for psychiatric treatment because he concluded that the activity levels the appellant had reported to Mr Garofali were inconsistent with the 2004 video footage. 27 The primary judge next referred (at [47]) to the fact that on 26 August 2005 a Motor Accidents Authority ("MAA") Review Panel determined pursuant to s 63(4) of the MAC Act that the appellant "had a degree of permanent impairment of the injured person as a result of the accident greater than 10 per cent degree and assessed an impairment to past and future earning capacity as a result of the injury caused by the accident". His Honour observed, "as this certificate is conclusive, I find that the plaintiff does have a restricted earning capacity and that the court is to approach the assessment of that reduced capacity pursuant to s 126 of the Act". With respect, as I shall later explain, his Honour erred in his use of this material for the purposes of assessing lost earning capacity, although the respondent does not complain of this error. 28 The primary judge held that once the 10 per cent permanent impairment threshold imposed by s 131 of the MAC Act had been crossed, the appellant was entitled to have consideration given to any symptoms causally connected to the injuries he sustained when the Court was assessing damages for non-economic loss. Thus, he opined (at [49]) that if the appellant had some psychological problems following from the physical disabilities he sustained the Court had to factor that effect into the award. The respondent does not challenge this conclusion. 29 His Honour next said: "50. As I said, I find that the plaintiff has sustained soft tissue injuries to his neck and low back, as well as other minor injuries in the accident. I find that he has also suffered some psychological problems as a result of the physical disabilities that he has experienced, and he has some urinary tract symptoms. In my opinion, the plaintiff is entitled to an award of $80,000 for general damages to compensate him for the past and future effects of his injuries, noting that he was born on 19 May 1965." 30 His Honour then turned to past economic loss. As I have said, his Honour was of the view that he was bound to conclude the appellant had suffered some loss of earning capacity. 31 At the time of the accident the appellant was conducting an auto-electrical business in partnership with his wife. He had been operating that business since 1989. He alleged that as a result of the accident he had been unable to operate the business and had closed it in November 2000. As I have said, at trial he asserted that he had been unable to work since that time and that that inability continued. 32 The appellant's tax returns for the four years before the accident showed that he was drawing a net weekly wage of $500. Although the appellant said that business was improving at the time of accident, the primary judge rejected (at [51]) the appellant's expert accountant's report projecting an increase in income to the date of trial on the basis that in the 10 years prior to the accident, the appellant had never received yearly receipts in excess of that reflected by a weekly net wage of $500. The appellant does not complain about this. 33 The respondent also tendered expert accounting evidence. The respondent's expert opined that bank records showing transactions on the appellant's business bank account from September 1999 until July 2004, suggested his auto-electrical business had continued to trade after December 2000. Although the primary judge observed (at [52]) that the appellant's explanation for those deposits was less than convincing, he concluded no evidence was led that could confirm he was still working as an auto-electrician during that period. 34 The respondent's accountant's report also referred to a letter from Thomson Ford, Parramatta dated 27 February 2004, which said: "The business D and B's Auto Electrical* has been trading with Thomson Ford for a period of 12 years, the account was always paid regularly and until recently there was a regular purchase pattern ." (emphasis added)

The appellant was not cross-examined about the inference which could be drawn from this letter that he had been operating his pre-accident business until comparatively recently. However it was put to him on several occasions that he could work every day doing useful work as an auto-electrician, a proposition he denied. Nevertheless the primary judge concluded (at [54]) that "this correspondence and its relationship to the plaintiff's capacity for work was never explained". 35 The primary judge concluded (at [55]) that the "best assessment" that could be made of the appellant's past economic loss was $500 net per week if he was to find that the appellant had been incapacitated for work from 2000. However, his Honour rejected the appellant's case that he had had no residual earning capacity since the end of 2000. He concluded (at [57]) that between the end of 2000 and the operation in June 2003, the appellant was "disabled to a degree but had a significant residual earning capacity". He allowed him loss of earning capacity of $200 per week from 1 December 2000 to June 2003, that is to say 40 per cent of his pre-accident earnings. Thereafter he concluded the appellant was totally unfit for work during a period of nine months which presumably corresponded to the period his Honour found was required for the appellant to recuperate from the operation Dr Kam performed. From March 2004 and continuing the primary judge concluded the appellant had recovered to the extent of his pre-operation loss of earning capacity, that is to say he allowed him a continuing loss of $200 net per week to the date of trial. 36 Having made those findings, the primary judge then recorded (at [58]) that Dr Kam's evidence revealed that the appellant had made a reasonable recovery from his operation, although he was left with back pain and some right leg pain. He observed (at [59]) that the video taken in August 2004 several weeks after the appellant had seen Dr Cummine, who was qualified for the respondent, showed a "marked difference in the movement than that which was divulged to Dr Cummine." He noted that Dr Cummine was not satisfied about the appellant's genuineness and concluded that by August 2004, the appellant had a residual capacity for work which could have been exercised had he chosen to do so. The date of August 2004 obviously differs from that of March 2004 to which his Honour had referred in par [57], however it does not appear to have had any significance in terms of his Honour's conclusion concerning the appellant's 40 per cent loss of earning capacity. 37 As to the appellant's future loss of earning capacity, the primary judge concluded (at [63]) that as a result of his physical injuries and psychological symptoms the appellant had a restricted earning capacity at the date of trial which, again, he assessed at 40 per cent of his pre-accident earning capacity, ie. $200 per week. Because the appellant had pre-existing degenerative changes before the accident (which the medical evidence concluded had been rendered symptomatic by the accident) the primary judge concluded that he should discount the plaintiff's future economic loss by 20 per cent for vicissitudes rather than the conventional 15 per cent. His Honour did not allow for any future superannuation because the appellant had been self-employed. There is no complaint about the discount applied for vicissitudes or the superannuation conclusion. 38 The primary judge then referred (at [64]) to the appellant's evidence that he took 15 tablets a day for pain but noted that when his tablets were produced "some doubt existed about the relative frequency of [their] use". He allowed $5,000 for future medical treatment in addition to past out-of-pocket expenses which had been agreed at $23,484.75. 39 By the time of trial, the appellant and his wife had divorced and the appellant was living part-time with his mother and part-time in a flat above his workshop. In reliance on the 2004 video, the primary judge rejected the contention that the appellant had difficulty with some aspects of his household work. He found (at [65]) that apart from a short period after his operation the appellant had at all material times been capable of performing his own domestic tasks albeit with some pain and restricted movement. He held that the appellant had not met the threshold requirements of s 128 of the MAC Act (Attendant Care Services) and, accordingly, made no allowance for past or future gratuitous domestic assistance. He did, however, allow a lump sum of $10,000 for future domestic help for heavier household tasks such as house maintenance, heavy lifting and the like.

46 The one passable exception to the generality of the written submissions was the (nevertheless bald) contention that if, as the primary judge found (at [39]), the accident caused the appellant's spinal canal stenosis leading to a three level laminectomy, the award for non-economic loss ought to have been "significantly higher". In his written submissions in reply Mr Conomos also argued that the judgment was inconsistent in that the primary judge failed to award damages for non-economic loss on the basis of his finding (at [39]) that the appellant had "soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident", awarding them instead, on the basis of his findings (at [50]), that the appellant had suffered soft tissue injuries to his neck and low back, as well as other minor injuries, some psychological problems as a result of his physical disabilities and some urinary tract symptoms. 47 In short, the appellant's written submissions afforded the Court no assistance on either version of the Notice of Appeal on foot at the time the appeal hearing commenced. There was no analysis of the approximately 680 pages in the Blue Books or the 250 pages of transcript in the Black Book, nor did the appellant file a Schedule of Damages: cf Pt 51 rr 40 and 46, Supreme Court Rules 1970 which relevantly applied to the appeal. Nor, as the respondent's written submissions pointed out, did the appellant's submissions identify any relevant evidence the primary judge had failed to refer to, identify any material findings of fact the primary judge had failed to set out in respect of his Honour's findings of fact and ultimate conclusions: cf Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 443) per Meagher JA. 48 Within the constraints imposed by the inadequacy of the appellant's written submissions, the respondent's written submissions contended that the primary judge's reasons complied with the basic obligations of a trial judge and adequately outlined the reasons for his Honour's ultimate conclusions. They submitted that the primary judge reviewed the relevant material and adequately took into account the appellant's evidence. They argued that the primary judge was entitled to look at the appellant's denials concerning the extent to which he worked during 2000 (primary judgment at [29]) and compare it with the extensive video evidence taken during that year and conclude that the video showed the appellant moving in a manner markedly different to his evidence, and that he was not shown in the video to be so physically incapacitated that he could not continue to work as an auto-electrician as at November 2000. 49 The respondent's written submissions also argued that in contrast to the appellant's presentation at trial of a man who was "seriously disabled" (primary judgment at [23]), the primary judge was entitled to accept that the evidence established that:

(e) the video displayed the appellant performing physical tasks in the course of his work "in a normal fashion" at a time which coincided with his claim that his physical condition was such that he had to give away his business (primary judgment at [34]). 50 Accordingly it was contended that the primary judge was entitled to conclude that the objective evidence in the video was so inconsistent with the appellant's claimed incapacity that his Honour was unable to accept his evidence. 51 The respondent's written submissions also argued that the amount awarded by the primary judge for non-economic loss was within the range of comparable verdicts, in the light of the evidence inconsistent with the appellant's case. The respondent submitted that it was sufficient that the primary judge identify the inconsistencies between the appellant's claimed disabilities and the objective video evidence to explain his rejection of the thrust of the appellant's case. 52 As to economic loss, the respondent's written submissions again contended that the primary judge had given adequate reasons, had analysed the expert evidence and correctly rejected the appellant's contention that he was wholly disabled from employment, which critically depended upon his credit findings against the appellant. As to the future economic loss, they pointed out that the primary judge had taken into account (at [58]) the opinion of the appellant's treating specialist, Dr Kam, that the appellant had made a reasonable recovery from his operation but had been left with back pain and some right leg pain. Mr Deakin submitted that matters such as the contrast between the video of the appellant taken in August 2004 several weeks after the appellant had been seen by Dr Cummine, an orthopaedic surgeon qualified by the respondent to whom the appellant presented as substantially physically incapacitated by spasms, rigidity and pain, were matters the primary judge was entitled to take into account on the appellant's credibility in reaching his conclusion (at [59]) that the appellant had a residual capacity for work which could have been exercised had he chosen. 53 Mr Deakin next submitted that the primary judge was entitled to deal with the appellant's evidence concerning future medical treatment briefly having regard to the appellant's evidence that he took only some of his medication. As to the appellant's complaint about the primary judge's findings concerning domestic assistance, the respondent submitted that the view the primary judge had formed of the appellant's credibility justified his rejection of this aspect of the appellant's claim. 54 With the exception of the matter to which I earlier referred concerning the award of non-economic loss, the gist of Mr Conomos's written submissions in reply was that the primary judge's credibility conclusions were not open in the face of the appellant's adherence during cross-examination to his evidence-in-chief.

56 In his oral submissions Mr Conomos accepted that the appellant's evidence-in-chief concerning the degree to which he was disabled by his injuries was inconsistent with the picture presented in the video evidence. He said he would meet that inconsistency by demonstrating the videos were inconsistent with the medical evidence and the appellant's evidence. He also contended that the primary judge had accorded too great weight to video evidence taken on discrete occasions over the six years which elapsed from the time the appellant was injured until trial and that the video evidence was not sufficiently inconsistent with the appellant's evidence concerning his disabilities. He pointed out, for example, that the investigator who had recorded the video had also made independent inquiries concerning whether or not the appellant was conducting his business as an auto-electrician and had not uncovered any evidence that he was carrying out work at his workshop. 57 Mr Conomos conceded however that on the basis of the video evidence the primary judge was entitled to conclude there was no apparent reason why the appellant would have closed his business in November 2000. He argued the primary judge dealt too peremptorily with video taken in 2002, and failed to indicate how that evidence had undermined the appellant's evidence of his disabilities at that stage. 58 At times it appeared that Mr Conomos abandoned his absence of reasons grounds of appeal, but at others he appeared to resurrect them. In the circumstances, the safest approach in my view, is to assume that the grounds of appeal are as set out in the Further Amended Notice of Appeal. 59 Insofar as he complained about the primary judge's failure to analyse the medical evidence, Mr Conomos finally submitted that this argument went only to the primary judge's failure to analyse Dr Kam's evidence and to his rejection of Mr Garofali's opinions. 60 In the course of the hearing the difficulty occasioned by the inadequacy of the appellant's written submissions became increasingly apparent to the extent that the Court was concerned that the appellant's case was not being properly presented. Mr Conomos also appeared to appreciate the position the appellant was in having regard to the inadequacy of his submissions and foreshadowed an adjournment application. 61 The Court, however, was concerned that an adjournment would not make best use of court time and asked Mr Deakin to present the respondent's submissions as best he could in the light of what had been outlined to that stage of the appeal. 62 At the conclusion of the hearing the Court directed the appellant's legal representatives to file and serve submissions detailing the evidence he contended the primary judge failed to take into account and setting out what ought to have been the result if that evidence had been considered. That submission was to be prepared within seven days and the respondent, in turn, was directed to respond within another seven days. 63 On 5 November 2007 the appellant filed supplementary submissions prepared by Dr Andrew Morrison of Senior Counsel and Mr Michael McHugh of junior counsel which addressed the issue of damages only. Mr Deakin in reply pointed out that the 5 November submissions did not address the issue on which the Court had sought the appellant's assistance. 64 On 15 November 2007 Dr Morrison wrote to the Associate to Justice Beazley advising that, having reviewed the respondent's submissions in reply, he proposed to prepare Further Supplementary Submissions seeking properly to address the matters the subject of the Court's direction. On 19 November 2007 Justice Beazley's Associate wrote to Dr Morrison pointing out that leave had neither been sought, nor granted, for the filing of further submissions, drawing his attention to Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 (at 258) and in Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 (at [53]-[54]) to the effect that the belief that supplementary submissions can be filed without the leave of the Court is misconceived. The letter advised that the Court would not receive additional submissions. 65 On 20 November 2007 the appellant filed a Motion seeking leave to file Further Supplementary Submissions. The Motion was supported by an affidavit sworn by the appellant's solicitor. In short, it explained that Mr Conomos had been unable to prepare the further written submissions the Court had directed, that Dr Morrison and Mr McHugh had been retained to do so, and that they had been instructed that the purpose of the supplementary submissions was to address the evidence in detail in a manner which would permit the Court to reassess damages. Once the respondent's reply submissions had been received, counsel had appreciated the purport of the Court's direction and the necessity, if it was to be complied with, for Further Supplementary Submissions. 66 The Motion was heard on 26 November 2007. Dr Morrison and Mr McHugh appeared for the appellant. Mr Ronzani appeared for the respondent and opposed the application to file further submissions. The Court acceded to the application, but placed the appellant's legal representatives on notice (as it had on the occasion of the first hearing on 29 October 2007) as to the costs consequences which may flow. I shall return to the issue of costs.

70 The Further Supplementary Submissions contended that the primary judge had erred in concluding (at [35]) that video taken in 2000 was inconsistent with the appellant's claim that he was so physically incapacitated he could not continue working as an auto-electrician as at November that year. They accepted that the video demonstrated that, as at 2000, the appellant had some employment capacity which may or may not be inconsistent with the degree of disability he claimed, but contended that whether it was was ultimately a matter for medical opinion. They argued that if the respondent had wished to challenge the opinion the appellant's doctors had formed about his earning capacity, it was incumbent upon them to subpoena those medical practitioners, to cross-examine them on the video material and determine whether it changed their views. 71 The Further Supplementary Submissions next contended both that the primary judge had erred in concluding that video taken in 2002 showed the appellant walking normally and also that the primary judge had failed to have regard to other material which showed that on occasions to which the investigator who took the video had recorded in his notes, the video depicted the appellant moving cautiously or in a restricted manner. 72 The Further Supplementary Submissions also criticised the primary judge's rejection, by reference to the video taken in 2004, of the appellant's evidence that he was in pain as he removed and replaced a wing mirror on a vehicle and, in any event, submitted that he could not perform such work consistently. They pointed out that that video was the only evidence of the appellant performing some sort of work associated with his normal job beyond the year 2000 and added that there were three breaks in the video of the incident which were unexplained. 73 The Further Supplementary Submissions contended that if the Court concluded that the primary judge's assessment of the video evidence was erroneous it could substitute its own conclusions for the primary judge's.

(a) in dealing with non-economic loss (at [50]), his Honour did not mention the three-stage laminectomy the appellant underwent, although it was noted (at [38]) in the context of the claims against Dr Kam. Nor did he mention (at [50]) his earlier finding (at [39]) that the appellant, in addition to the soft tissue injuries noted, had lumbar canal stenosis by 2002. (b) His Honour did not address Dr Kam's opinion that he did not see any neurological surgical solution and did not think the appellant could return to his pre-injury duties as an auto electrician. (c) His Honour did not address Dr Kam's evidence in chief to the effect that the appellant's stated symptoms were complaints heard from patients with lumbar-canal stenosis on a fairly common basis, such patients comprising the majority of his practice, nor the conclusions Dr Kam drew from the CT myelogram. It was contended that these omissions were significant considering his Honour's finding (at [33]) that the appellant's evidence about his physical disability "cannot be always accepted as reliable and must be approached with considerable reserve where not corroborated" and, further, were more telling as his Honour found (at [40]) that it was the appellant's complaints about disability and chronic pain which persuaded Dr Kam to suggest surgery. They also contended that these omissions were puzzling, in the light of his Honour's rejection (at [74]) of the respondent's allegation in the cross claim against Dr Kam that the appellant's condition was complicated by depression and that surgery was contra-indicated. (d) the evidence concerning the appellant's urological damage was, apart from one mention (at [19]), reduced to a finding (at [50]) of "some urinary tract symptoms" when non-economic loss damages were assessed. 75 The Further Supplementary Submissions drew attention to the statement by the MAA Review Panel that whilst the appellant may have assessable whole person impairment related to urinary bladder dysfunction, it was not necessary for their purposes for a determination to be made in this regard, as the appellant "has 20% whole person impairment due to the lumbosacral spinal impairment and this is greater than the 10% threshold in the relevant regulations". It was contended that such a significant finding underlined the scope of the appellant's physical injuries and disabilities and pointed to appealable error in the learned primary judge's finding of non-economic loss, notwithstanding that such a percentage was not a guide to assessing damages for non-economic loss (Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 (at [21]) per Mason P). 76 The Further Supplementary Submissions submitted that the appellant had also suffered the pain and ignominy of urinary bladder dysfunction for which he daily self catheterised and which the Review Panel's certificate said was caused by the motor vehicle accident and which Dr Lau, a urologist, stated was a recognised sequelae of laminectomy. 77 Next, the Further Supplementary Submissions contended that the appellant had psychological damage flowing from the motor vehicle accident diagnosed by Mr Garofali, a clinical psychologist, as an advanced chronic pain condition and moderate reactive depression and by Mr Anthony, another psychologist, as an adjustment disorder with mixed anxiety and depressive mood due to persistent pain and physical restrictions, post traumatic stress disorder; and by consultant psychiatrist Dr Smith as an adjustment disorder with depressed and anxious mood. As I have earlier noted, the appellant did not challenge the primary judge's rejection of Mr Anthony's diagnosis of PTSD. 78 Having regard to the limit for non-economic loss of $381,000 as at the hearing of the appeal (s 134, MAC Act) the Further Supplementary Submissions contended that the primary judge's award for non-economic loss should have been in the range of $200,000 plus.

100 The appellant said that following the accident he worked in his auto-electrician's business for about eight months in 2000 but closed it in November because he was "gradually losing energy" and he was "not able to do the work [he] used to perform". He said that at the time he closed the business he could not bend over to pick up things and could not lift heavy items. He said he stopped work because on one occasion when he was trying to change a battery in a car, he bent down to pick it up and as he was standing up and put pressure on his right leg, he fell. He said at that stage he had a shooting pain down the back of his right leg as well as one down his right arm from his shoulder. He said the shooting pain in his leg caused him to lose power so that when it occurred he "would just fall to the ground". He said this tendency got worse in 2001. He had not used a walking stick, but managed to control the risk of falling by always being "prepared to grab onto something". He said he had constant low back pain which was aggravated by walking, prolonged standing, sitting and driving. He said that as 2006 he could not bend to pick up objects and had to squat. 101 In cross-examination the appellant agreed that while he had been giving evidence he had been alternating between sitting and standing. When standing he had been bending forward a bit at his waist, leaning on both hands and had his left knee on the chair. He said he assumed that posture because: "… on my left leg when I've got pressure on that one, I get a lot of pain in the left ankle and I have to - I tend to have to be prepared for the sharp pain that I get through my right leg, so I lean on something if I know I am going to be for a certain period of time standing in that one position." 102 He said the constant pain in his lower back was mostly at a level of nine out of ten, although on a minority of occasions it was at a level of seven out of ten. He said this pain travelled down both his legs, although since the operation it had been mainly in his right leg. He said his condition was worse in 2006 than it had been immediately after the car accident, although he accepted that the surgery Dr Kam had undertaken had given him some improvement in his left leg. 103 He said he tried to do things around the home. He had tried to screw a lock on a door in 2005 but had been unable to complete the task and his son had completed it because he was in pain. On another occasion, he said it had taken him an hour to change a light switch even though that was an easy job which should not take more than five minutes. He said there was no task he could do without needing someone's help to complete it because of his pain. 104 The appellant accepted that being an auto-electrician was a skilled rather than a heavy job. He said 50 per cent of the work was fairly light, although the job involved getting into awkward positions inside dashboards, inside the boot or into the engine. He accepted that most of the components an auto-electrician used were fairly light, that the work was done with simple hand tools and that a trolley could be used if heavy equipment had to be moved. 105 The appellant said that since he stopped work at the end of 2000 he had been able to change a water bottle for the windscreen washers on a car and change a headlight but that those tasks had taken time and he could not do them without having a break. He said the longest time he could stick at a task without a break was approximately 10 to 15 minutes, but that even during that period he was stopping and starting every minute or two. He said that with some help he could have performed his work in 2002, but that his condition had deteriorated since then and, at the time of trial he was "useless". 106 The appellant was shown the video footage taken in August 2004 in which he was working on a four-wheel drive. He said it had taken him three quarters of an hour having breaks and stopping and starting. He said he kept moving around because he was not comfortable. It was put to him that the activity shown in the video was the sort of activity he could still perform to which he responded: "I can't perform on a daily basis because I'm always in pain and I'm pushing myself to keep my sanity. … I can't perform all the time, it's just a one-off thing that I tried to do for a lady, tried to help." 107 Thus the picture the appellant painted in his evidence was that of a person who had had constant lower back pain since 2000, pain which had led him to fear sudden falls, pain which prevented him from picking up objects without squatting. In addition his evidence was that he was almost entirely disabled from carrying out even the most minor of tasks such as screwing a lock on a door, or changing a light switch without calling for assistance or taking long rests.

112 The video recorded in November 2002 showed the appellant both at times moving freely, albeit perhaps with a slight limp, but did not appear to show him to move any less freely than he had in 2000. On one occasion, however, on 22 November 2002, a day he attended a medical centre in Castle Hill, he appeared to walk more cautiously as he neared the medical centre and but also walk freely at times. He walked up stairs without apparent restriction. 113 The video footage exposed of the appellant in 2004 again showed him apparently walking normally, bending without limitation, reaching high above his head, backing a motor vehicle, going down on one leg and climbing stairs without apparent difficulty. At times it appeared there may have been a barely perceptible limp but at all times he appeared to me to walk at normal pace. 114 On 30 August 2004 the video footage again showed the appellant walking and bending without restriction. He lifted what appeared to be some sort of case into the back of a vehicle using both his arms. He squatted. Throughout almost the entirety of this section of the video, which was 39 minutes long, there was only one point in which to my observation it was possible to discern the appellant limping slightly. Again, for what it is worth, on this occasion the investigator recorded that the claimant "was observed loading the Ute with work tools and didn't appear to have the severe restrictions sighted on Friday 27 August 2004". It was on this occasion that the appellant spent just over half an hour working on a four-wheel drive. Again he moved without restriction including bending and kneeling. He undertook the task in hand, which from his evidence at trial involved changing the wing mirror on the car, without interruption or assistance. 115 In summary, the video evidence demonstrated that on numerous occasions in 2000, 2002 and 2004 the appellant was able to conduct his business without any real apparent restriction and perform a variety of activities including bending, squatting, twisting, reaching above his head and sitting for periods of time which belied his evidence of being almost totally disabled.

The medical evidence 122 Further, in my view, contrary to the Further Supplementary Submissions, a perusal of the medical reports approximately coincidental with the video footage highlights the conflicting picture the primary judge concluded was presented by a comparison between the two. 123 On 18 April 2000 Dr Chaseling, a consultant neurosurgeon, reported to Dr Dawoud, the appellant's general practitioner, that a neurological examination of the appellant's lower limbs was normal, the appellant did not have lumbar radiculopathy and should be treated conservatively. On 2 November 2000 Dr Chaseling reported to the appellant's solicitors that the appellant "was a man of stated age who did not appear to be in any obvious distress" although he felt his lumbar spine movements "were quite restricted". His MRI revealed "mild focal canal stenosis due to degenerative changes as well as a gentle bulge of his L4/5 disc" which had been rendered symptomatic by the accident. He thought the appellant would "probably show continuing recovery over the next few years". 124 Dr Bowers, a specialist rehabilitation physician, examined the appellant for the respondent's insurers. He reported on 11 September 2000. He noted of the appellant: "…He was able to dress and undress and transfer onto and off the examination couch independently with normal speed and no complaint of pain. His gait was normal, although he walked slowly complaining of pain. Lower limb functions were otherwise normal. He was unable to perform the jolt test as he stated this would cause severe pain (a likely non-organic symptom). On inspection, he had work stains on his hands, indicating he has been performing heavy work with the arms . Otherwise, joints were held in normal position. There was no muscle wasting, no joint swelling and no reflex sympathetic dystrophy. On palpation he complained of extreme pain with trivial palpation throughout all areas of the lumbar spine (a likely non-organic complaint). He complained of pain on percussion of the spine with extremely light pressure (not consistent with organic disease). Tone in the arms and legs was normal suggesting no major nerve problem. Peripheral circulation was normal .

Dr Darveniza concluded that the appellant had suffered injuries to his back and neck leaving him with "chronic back pain severely limiting his physical activities." 127 Dr Darveniza's description of the appellant's movements contrasts starkly with the freedom of movement seen on the videos taken over the preceding months in 2000. 128 On 26 February 2001 Dr Darveniza reported again to Dr Dawoud following a review of the appellant on 22 February 2001. Again the appellant presented as moving "very gingerly and slowly to prevent spinal pain" and as having "a painful limp in the left leg from the ankle." On 19 March 2001 Dr Darveniza reported the outcome of the same consultation to the appellant's solicitors noting that the appellant "moved extremely slowly and cautiously to minimise spinal pain" and could "only sit on the edge of the chair leaning on one buttock". In his opinion the appellant had been left with chronic back pain as a result of the accident, "severely limiting his physical activities", a condition he thought was permanent. 129 In March 2001 Dr Maniam, an orthopaedic specialist, reported to Dr Dawoud that the radiological evidence showed the appellant had suffered a musculo ligamentous strain of his cervical spine, a non-specific ligamentous strain to the left ankle and possibly an injury to the L4/5 intervertebral disc. The radiological evidence showed a broad based disc bulge at L4/5 which was not showing any impingement on the nerve roots. In April 2002 Dr Maniam opined that the appellant appeared to be in significant pain and that radiological examinations showed advanced degenerative changes which in his view were likely precipitated by the accident given his pre-accident good health and the fact he had had to close his business. He recognised that the appellant's physical condition was affected by anxiety depression and chronic pain syndrome behaviour. 130 Dr Maniam's opinion was clearly influenced by the appellant's presentation and his acceptance of the appellant's statement that his condition had caused him to close his business. The primary judge was entitled to reject that opinion in light of his assessment of the appellant's condition in 2000 as depicted in the video.

135 The appellant had reported to him, inter alia, that he was extremely limited in his ability to perform moderate activities such as moving a table or pushing a vacuum cleaner and bend, kneel or stoop, walk 100 metres, lift or carry groceries, climb one flight of stairs. He concluded the appellant had developed an advanced chronic pain condition which had precipitated a moderate level of reactive depression and "a strong tendency to be overwhelmed by the experience of pain". 136 In his 6 March 2004 report, Mr Garofali recorded the appellant's complaints that his pain was "aggravated by movement, sitting, standing, walking…lifting, bending, going up/down stairs, driving" and that he was still extremely limited in, inter alia, the activities he had reported in 2002. He thought the appellant's chronic pain condition had become worse. 137 It will be recalled that Mr Garofali's opinion was expressly rejected by the primary judge because he formed the opinion the activity levels the appellant reported to Mr Garofali were inconsistent with the video evidence. This conclusion clearly depended on his Honour's rejection of the appellant's evidence of his disabilities, of the reliability of the appellant's complaints to Mr Garofali and his view that there was, accordingly, no factual basis for Mr Garofali's opinion. That conclusion was, in my view, well open to his Honour. 138 Mr Anthony, another clinical psychologist, saw the appellant on three occasions in 2000, 2001 and 2002. The appellant told him he had closed his business due to the difficulties he had in performing his work. He reported persistent pain in the low back, legs, ankle, neck and arm, as well as headaches, dizziness and photosensitivity. He said he had increasing pain and numbness and involuntary trembling of his leg which embarrassed him in public. He also reported a variety of anxieties and stresses which he attributed to his injuries and his employment, or lack thereof. Mr Anthony reported to the appellant's solicitors on 23 August 2002 that the appellant "presents with Adjustment Disorder with mixed anxiety and depressive mood due to persistent pain and physical restrictions, post traumatic stress disorder". He also reported the appellant suffered from Post Traumatic Stress Disorder, a conclusion the primary judge rejected as lacking factual foundation. 139 Dr Michael Fearnside, a neurological surgeon, examined the appellant on referral from Dr Lim on 12 September 2002. In his report he noted: " On examination, he was in distress with his neck and back pain and moved only slowly . Cervical spine movements were markedly limited. There was a non dermatomal sensory loss in the right arm but no other focal neurological signs. Straight leg raising was limited to 20° Power in the legs was normal and reflexes equal and symmetrical. There was a non dermatomal sensory loss in the left leg. I would have thought the only potentially surgical treatable lesion which would give him a reasonable prospect of improvement would be a decompression at L4/5. The right L5 nerve root is not filling on the myelogram but the majority of his pain is on the left. Therefore, it is very difficult to predict whether a decompression at this level would help but it may. Otherwise, I can only suggest that he be treated conservatively." (emphasis added) 140 Dr Selwyn Smith, a psychiatrist, reported on 11 November 2002 that Messrs Anthony and Garofali were psychologists who were not qualified to comment on medical issues and that the appellant should be encouraged to work given that further psychological interventions were unlikely to assist him. 141 The appellant saw Dr Alex Apler, a psychiatrist, on 6 December 2002 for the MAA. He reported: "Mr Kendirjian presented as a young, unshaven man. He seemed restless, asking me if he can stand up to relieve his pain. I observed shaking in his right leg. He seemed rather sad during the interview …" 142 Dr Michael Ryan, an orthopaedic specialist, saw the appellant for the MAA on 11 December 2002. His report said: " I found Mr Kendirjian to be tremulous and sweating. He walked with a left, possibly antalgic, gait keeping his left hip and knee in a semi-flexed position. When his attention was diverted his gait appeared normal . He needed the assistance of his wife to remove and put on his shoes. He would not lie on the left-hand side of his back. Any attempt at left hip rotation produced an agonising pain in his back. Any attempt at left leg movement produced similar pain. Mr Kendirjian described altered sensation in the distribution of the left lateral cutaneous nerve of thigh (neuralgia paraesthetica). His knee and ankle jerks were present and symmetrical and markedly hyper-reflexic. Mr Kendirjian was able to stand on his heels and toes, mainly load bearing on the right-hand side. There was no gross lower limb wasting. Despite the above-mentioned signs, 50° of straight leg rising was achieved bilaterally. Mr Kendirjian displayed exquisite tenderness to the most minimal of palpation over this spinous processes from T9-S1 with withdrawal. … Mr Kendirjian's physical examination is dominated by non-physical factors suggesting a major intrusion of psychological disturbance which is affecting his physical signs…There appears to be a large discrepancy between [his] documented injuries and his degree of impairment. There is no obvious physical reason why he was able to return to work then his ability to work declined " (emphasis added) He thought it was premature to comment on the appellant's past and future earning capacity. 143 The appellant was examined by Dr Rosenberg, an orthopaedic surgeon, on 20 January 2003 who reported: "Clinically, he is in extreme discomfort seemingly suffering periodic muscle spasms. He is unsteady when standing and walking and cannot stand on one leg. He is tender to the lightest touch throughout the lumbar spine. He has minimal movements . Straight leg raising reproduces severe back pain and some left thigh pain. There is weakness of his left foot, but reflexes are preserved. Toes are down going. Hips and knees are unaffected." (emphasis added) 144 The MAA also required the appellant to see Catherine Campbell, a clinical psychologist, on 15 April 2003. In her report dated 16 April 2003, Ms Campbell noted: "He evidenced marked physical discomfort during the interview, regularly complaining of intense and distressing pain. His right arm and leg were observed to be shaking and he was unable to maintain the same position, or posture for longer than five minutes ." (emphasis added) 145 On 27 June 2003 Dr Kam carried out the laminectomy.

146 Dr Ryan saw the appellant again on 7 August 2003. In his report to the MAA for the purposes of s 61(1) of the MAC Act on whether the laminectomy was reasonable and necessary in the circumstances (s 61(2)(b1)), he made the following observations as to the appellant's symptoms: "Mr Kendirjian's spine was exquisitely painful on the most minimal of light touch, from distally to mid-sacrum. He has a well-healed, uninflamed, midline posterior lumbar surgical wound. When this was gently touched he flinched in exquisite pain and manifest withdrawal. Mr Kendirjian stated that there was a reduction of sensation over both legs from the groins distally. Lower limb motor examination was performed. Mr Kendirjian manifest [sic, as in original] profound cog-wheeling weakness on testing of discrete muscles. His lower limb reflexes are brisk and symmetrical. He was able to stand on his heels. Mr Kendirjian refused to lie on his back because of 'agonising pain.' The whole of his left leg, especially his foot and heel, were tender to the most minimal of palpation. There was no sign of redness, swelling or inflammation." 147 Dr Cummine, an orthopaedic specialist, reported to the respondent's solicitors on 24 October 2003: "On examination: This 38 year old man entered and left the surgery moving cautiously. In getting on and off the examination couch and getting in and out of his chair, he frequently groaned and moaned. Examined standing he moved cautiously, with meaningful range of movement apparently limited by pain . His lumbar sacral spine revealed a well healed 9 cm midline scar. He was able to sit on the examination plinth with difficulty, continuing to moan and groan. There was considerable amount of voluntary shaking in his right leg. He was unable to assume the supine position on the examination couch apparently due to pain" (emphasis added) 148 Dr Cummine concluded that the appellant's "symptoms and signs [were] totally disproportionate to the initial injuries…even allowing for the decompressive laminectomy". In his view: "The findings on physical examination suggest a concerted effort to maximize and embellish apparent disability…I think it unlikely in the extreme that the patient had symptomatic lumbar canal stenosis, but…decompression has been carried out and his symptoms persist, and in my view remain disproportionate to identifiable pathology."

Conclusion: the primary judge's findings 160 The appellant's submissions, in my view, fell into the error of nit-picking through the primary judge's reasons rather than looking at their substance. 161 It is apparent, for example, that the primary judge's description of the appellant's behaviour as "bizarre" was his Honour's conclusion based on his observation of the appellant's behaviour in the witness box and his behaviour on the videos. The appellant criticises his Honour's conclusion as not acknowledging that the appellant had undergone a triple fusion. That submission, however, begs the question, assuming the level of disability the appellant described in his evidence (and to medical practitioners) existed in fact. However that was the question the primary judge had to determine. I shall return to the evidence from which, in my view, it is apparent that it was open to his Honour to reach the conclusion that the appellant's behaviour was "bizarre" and content myself with saying, at this stage, that it is not apparent that his Honour's fact-finding process was contaminated by this characterisation of the appellant's behaviour. 162 His Honour rejected the appellant's case that he was totally disabled because he concluded his evidence was unreliable not merely because he thought his behaviour as a witness was bizarre. The appellant has not demonstrated, in my view, that his Honour "failed to use or …palpably misused his advantage" or that his Honour's conclusion in this respect was erroneous in any of the other respects sanctioned by authority. 163 In my view the primary judge was entitled to reject the appellant's evidence of his disabilities because of the overall effect of the video evidence. The 2000 video showed the appellant carrying out his work in a manner that belied his evidence that the extent of his disabilities was then such that he could no longer carry on work. This contrast between the appellant's account of his disabilities and the video evidence was also apparent in the 2002 recording. Finally the 2004 videos showed him showed him moving without apparent restriction and carrying out the work of an auto-electrician, in an apparently unrestricted manner that contradicted his testimony. 164 The Further Supplementary Submissions challenge the primary judge's interpretation of the video, drawing attention, inter alia, to the investigator's notes that the appellant was moving cautiously at times. This underlines the difficulty of challenging the primary judge's conclusion about what he concluded the video depicted. This was an exercise of fact-finding peculiarly open to his Honour especially when it came to comparing what he thought the video depicted with the appellant's evidence about his disabilities and his behaviour in the witness box. These were areas where the primary judge, in effect, occupied the "box-seat". I would add that my observation of the video accorded with his Honour's and not with the investigator's notes, an observation which serves only to emphasise, again, the difficulty of second-guessing another's approach to such evidence. The investigator was not the fact-finder; the primary judge was. It might also be noted that Mr Conomos conceded the video evidence was inconsistent with the appellant's evidence and accepted that it was open to the primary judge to reject the medical evidence in the light of his conclusion about the appellant's credibility. Otherwise he sought to challenge the primary judge's use of the video on the basis of weight. For the reasons I have given that challenge must fail. 165 It might be accepted that, on its face, the cross-examination of the appellant did not produce any significant concessions, a proposition Mr Conomos's written submissions in reply appeared to contend militated against the primary judge's rejection of his evidence. But staunch adherence in the witness box to subjective evidence of disabilities belied by objective video evidence is just as, if not more, damning of a witness's credibility, than an appropriately made concession. 166 Finally it should be noted that insofar as the appellant criticises the primary judge for failing to refer to the large mass of medical evidence, it is apparent that the medical practitioners' opinions about the appellant's disabilities were largely, if not entirely, based upon what the appellant told them. His complaints about his disabilities were "not objective" evidence and the opinions depended upon them being established as a matter of fact: Whisprun (at [54]). His Honour concluded they were not. 167 In any event, in my view, as appears below, his Honour sufficiently referred to the medical evidence favourable to the appellant's case and explained why he rejected it. His Honour did not analyse every medical report. However he sufficiently identified the basis on which he rejected, for example, Mr Garofali's opinion. He also accepted Dr Kam's opinion that the appellant had made a reasonable recovery from his back operation, a conclusion his Honour might, in any event, have drawn based on the video. He also accepted the respondent's expert, Dr Cummine, who doubted the appellant's genuineness, an opinion which accorded with his Honour's view after seeing the video. 168 Finally, I would observe that if the primary judge's rejection of the appellant's subjective evidence about the extent of his disabilities meant that to the extent the medical opinions depended upon that level of disability, they lacked factual foundation: Whisprun (at [54]); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. Adequacy of reasons 169 As to the failure to give reasons point, it was essential that his Honour exposed his reasons for resolving points critical to the contest between the parties: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA (at 280) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it was necessary that the primary judge "'enter into' the issues canvassed and explain why one case was preferred over another". While his Honour was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171, 182)), it was necessary that his reasons facilitated appellate review: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [129] - [130]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed); Soulemezis (at 259) per Kirby P. 170 There are no absolute rules as to the requirement for the judge to give reasons and, in some circumstances, "there may be little to say other than that the witnesses for one side were more credible": Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry and Laws LJJ and Hidden J. 171 In my view the primary judge's reasons adequately exposed his treatment of the parties' respective contentions. His conclusions ultimately depended significantly on the credibility issue. He analysed the various videos against the appellant's account of his state of health at the time approximating that which the videos depicted. He also drew an overall conclusion adverse to the appellant's credit. That followed from his particular analysis and, further, was the sort of conclusion about which little more could be said: Flannery. His Honour sufficiently referred to the medical evidence and exposed his reasons for accepting or rejecting, as the case may be, the parties' contentions. 172 The grounds of appeal which complain about adequacy of reasons should be rejected. Non-economic loss 173 The primary judge's conclusions about the appellant's credibility and the extent of his disabilities were clearly important issues when his Honour came to consider the issue of non-economic loss. 174 In considering this issue it must always be borne in mind that the assessment of non-economic loss is an evaluative process in respect of which minds may reasonably differ: Woolworths Ltd v Lawlor [2004] NSWCA 209 (at [14]). An appellate court will not interfere with a trial judge's assessment of damages "simply because it would have awarded a different figure had it tried the case at first instance": Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 (at 369) per Gibbs J. in Khan v Polyzois [2006] NSWCA 59 Hislop J (with whom Mason P agreed) said the Demir principle applies to the assessment of non-economic loss under s 16 of the Civil Liability Act 2002, and, a fortiori, they would apply , too, to the assessment of non-economic loss under s 134 of the MAC Act.

176 Accordingly, an appeal court may only alter the trial judge's decision if the judge acted on a wrong principle of law, misapprehended the facts or made "a wholly erroneous estimate of the damage suffered": Moran v McMahon (1983) 3 NSWLR 700 (at 719 and 723) per Priestley JA (with whom McHugh JA agreed); Jones v Bradley (at [117]) per Santow JA (with whom Meagher and Beazley JJA agreed); see also Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695 (at [15]-[17]); Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731 (at [100]). 177 The appellant seeks to demonstrate reviewable error on the primary judge's part by asserting his Honour apparently failed to take into account a number of matters not tainted by the credibility issue. 178 In particular the appellant asserts that in assessing non-economic loss, the primary judge failed to take into account the appellant's lumbar canal stenosis, as well as the fact he underwent a three-level laminectomy. It is not apparent to me that the primary judge failed to take these matters into account. He referred to the appellant's operation (at [19] and [38]). In the next paragraph ([39]) his Honour found that the appellant had sustained "soft tissue or musculo-ligamentous injuries to the low back, superimposed on asymptomatic pre-existing degenerative changes and by 2002 had lumbar-canal stenosis caused by the accident." Next he was satisfied (at [40]) that the appellant's complaints about disability and chronic pain persuaded Dr Kam to suggest surgery and noted that the appellant's evidence was that after the operation his left leg symptoms improved. He also accepted (at [42]) that the appellant had developed an anxiety state superimposed on his physical symptoms and referred (at [50]) to the appellant's urinary tract symptoms. It was not necessary for his Honour to repeat all his findings when he identified (at [50]) the figure he awarded for non-economic loss. The fact that he mentioned some, but not all, of his earlier findings does not indicate, in my view, that he had not taken all his findings into consideration.

Economic loss 185 In order for the appellant to succeed in challenging the primary judge's finding about the appellant's earning capacity it was necessary to overturn his Honour's assessment of the appellant's disabilities. The appellant has failed in that respect. I would add that, in my view, the appellant was the beneficiary of a very favourable finding about his retained earning capacity having regard to the primary judge's findings about his credibility. 186 This favourable finding appears to stem, in part, from his Honour's treatment of the MAA material of 26 August 2005. His Honour (at [47]) treated the MAA determination that the appellant had been assessed with a degree of permanent impairment of the injured person as a result of the accident greater than 10 per cent and with impairment to his past and future earning capacity as conclusive and, therefore, requiring him to find that the appellant had a restricted earning capacity. 187 A MAA Review Panel issued three certificates on 26 August 2005. One certified that the impairments to the appellant's cervical and lumbar spine were permanent and were assessed as giving rise to a whole person impairment which, in total, was greater than 10 per cent. That certificate was conclusive evidence as to the matters it certified: s 61(2), MAC Act. Another certificate issued under s 61(1) found that the appellant had an impairment to his past and future earning capacity as a result of the injury caused by the accident. That finding was not conclusive as to the matters it certified, not being one of the four matters referred to in s 61(2). As a certificate referring to a matter not set out in s 61(2), it was "evidence (but not conclusive evidence)" as to the matters it certified: s 61(3). 188 The effect of a s 61(2)(a) certificate is well established: it opens the door to an award of damages for non-economic loss, but does not impose any statutory restraint (save for the cap provided by s 134) on the amount which may be awarded for non-economic loss: Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 (at [39]) per Heydon JA (Sheller JA and Davies AJA agreeing). 189 A s 61(2)(a) certificate does not have a conclusive effect on the issue of damages for economic loss as explained in Brown v Lewis by Mason P (Santow and McColl JJA agreeing): "22 It is conceivable that matters certified in accordance with s61(2)(b) (whether any treatment already provided to the injured person was reasonable and necessary in the circumstances) or (c) (whether an injury has stabilised) may afford (conclusive) evidence relevant to a particular aspect of damages assessment, including the assessment of economic loss. The terms of any certificate 'as to any other matter' (cf s 61(3)) or the medical assessor's reasons for his or her finding (cf s 61)(9)) may also assist (non-conclusively) in resolving some issue referable to economic loss. But the court must never lose sight of the principle that 'damages for both past and future [economic] loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. … It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained' ( Husher v Husher (1999) 197 CLR 138 at 143[7], per Gleeson CJ, Gummow, Kirby and Hayne JJ, citations omitted). Sections 124-130 of the MACA provide additional restrictions upon the award of damages for economic loss in respect of a motor accident. 23 Extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s 61(2) for the purpose of calculating economic loss . Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%. Section 133 points to information (MAA Medical Guidelines and the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition) that does not concern itself with the economic consequences of injury, and excludes information (derivative psychiatric or psychological injury, impairment or symptoms: see s 133(2)) that may be critically important to assessing economic loss. In short, the statutory concept of (permanent) 'impairment' is not to be equated to the notion of incapacity (permanent or temporary) that may be a stepping-stone in a case involving a claim of damages for economic loss. It is Part 5.2 of the Act (ss124-130) that contains the legislative qualifications upon the common law principles governing assessment of damages for economic loss. Those provisions do not engage the statutory concept of 'permanent impairment'. 24 It is conceivable that matters certified or reported in the reasons of the medical assessor may have a bearing on factual issues touching damages for economic loss. But everything would depend on the nature of the particular injury . Some injuries that would not produce a greater than 10 per cent degree of permanent impairment would have catastrophic economic impact on some plaintiffs (eg the violinist who lost the tip of a finger). Conversely, some injuries that produced a greater than 10 per cent degree of permanent impairment would have minimal economic impact on most plaintiffs." (emphasis added) 190 Accordingly, the primary judge was in error in observing that the s 61 certificates were conclusive on the issue of the appellant's earning capacity. However, as I earlier noted, the respondent does not complain about this conclusion, contenting herself with the submission that his Honour had not erred in determining the extent of the appellant's past and future earning capacity. 191 In my view the appellant has not demonstrated that his Honour erred in this respect. His Honour's conclusion that the appellant had some residual earning capacity was clearly open based on his rejection of the appellant's evidence of the extent of his disabilities and his observation of the appellant carrying out auto-electrician's work, both at the time he closed his business due to his alleged incapacity and in 2004, as well as his overall conclusion that the appellant was an unreliable witness. 192 The Further Supplementary Submissions referred baldly to the appellant's expert report to support this ground of appeal. They did not identify any error in the primary judge's rejection (at [55]) of the conclusions in this report as being "based primarily on speculation and without adequate documentary report". 193 Save in the respect I have identified, which is favourable to the appellant, the primary judge did not, in my view, err in his assessment of economic loss.

Interest 196 The Further Supplementary Submissions sought interest on the appellant's past economic loss pursuant to s 137 of the MAC Act. They pointed out that, pursuant to that section interest is payable at three-quarters of the usual 9 per cent rate if the defendant's highest offer is less than 20 per cent below the amount ultimately awarded by the Court and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. They contended that the respondent had not submitted that it made a reasonable offer but, in any event, if it wished to do so, the appropriate time was after damages had been redetermined. 197 The respondent submitted that the Court ought not entertain the application for s 137 interest on past economic loss as this issue was not raised before the primary judge and was not raised in the Notice of Appeal. The respondent also contended she had made reasonable offers to the appellant which satisfied s 137(4). She noted that the appellant had not put into evidence the flow of offers made and the context in which those offers were made. She argued that if the appellant sought s 137 interest it was incumbent upon him to adduce that evidence before the primary judge to enable his Honour to make the factual findings s 137 called for. 198 The interest issue appears to have been an after-thought by the appellant's new legal representatives. 199 When the Court raised the issue of interest on economic loss during the hearing of the appeal Mr Conomos replied that interest had "gone, yes it went with a lot of things", referring to the MAC Act. 200 That was true of interest on damages for non-economic loss (s 137(3) MAC Act), but not correct in respect of interest on damages for economic loss. Interest is available for the latter head of damages, however establishing an entitlement to interest depends upon factual findings required by s 137(4). 201 The claim for interest should not be allowed. The absence of a ground of appeal in respect of this claim underlines the respondent's proposition that no claim under this head was made at trial. It involves a fact-finding process which should have been explored at trial.

Orders 202 The appeal has failed and should be dismissed with costs. The question of who should pay the costs, and whether any costs should be awarded on an indemnity basis was addressed both during the hearing and on 26 November 2007. 203 When the inadequacy of the appellant's submissions was appreciated in the course of the hearing of the appeal and it became apparent that further submissions would have to be prepared, the Court expressed its concern that the appellant ought not bear the costs burden which may arise consequent upon his legal representatives' failure to ensure the Court was properly assisted. 204 Mr Conomos informed the Court that both he and his solicitor had indicated to the appellant that they would not be charging him for the costs of the day, should the adjournment which Mr Conomos had, at that stage, foreshadowed, be granted. As to the respondent's costs, Mr Conomos said those would not be met by the appellant, but "by the lawyers concerned". 205 The Court then heard from Mr Deakin but it was nevertheless necessary, at the conclusion of his address, to make the directions concerning further written submissions to which I have already referred. 206 When the Motion was heard on 26 November 2007, Dr Morrison accepted that the costs of that Motion and any additional costs incurred by the respondent should be borne by the appellant's legal representatives responsible for those additional costs. 207 Mr Ronzani, who appeared for the respondent on 26 November, sought costs on an indemnity basis for the entire appeal, that is to say for both the hearing and the preparation of written submissions. 208 The Court has power to order a legal practitioner to bear costs which have been incurred by the serious neglect, incompetence or misconduct of a legal practitioner or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible: s 99, Civil Procedure Act 2005. Section 99 requires the Court to give the legal practitioner a reasonable opportunity to be heard. As the appellant's legal practitioners have conceded that they should bear the costs burden, to the extent that those costs were wasted, that opportunity has, in my view, been extended to the legal practitioners. I should make it clear that the appellant's solicitor and Mr Conomos made this concession. It did not, and could not, apply to Dr Morrison and Mr McHugh who commendably sought to conduct a salvage operation in an attempt to comply with the Court's direction. 209 In considering exercising its s 99 discretion as to costs, the Court may take into account a legal practitioner's failure to comply with the requirements in s 56(3) and (4) of the Civil Procedure Act requiring parties to civil proceedings to assist the Court to further the just, quick and cheap resolution of the real issues in the proceedings: s 56(5) Civil Procedure Act. 210 In Whyte v Brosch (1998) 45 NSWLR 354, the Court drew attention to legal practitioners' duty to ensure that proceedings before the Court are conducted efficiently and expeditiously and, further, to the proposition that the profession should be aware that if costs were incurred as a result of an adjournment of proceedings by reason of the late filing of submissions, the Court could order costs thrown away by the adjournment be paid by the legal practitioner responsible for the failure. 211 The failure of the appellant's legal practitioners to ensure that the written submissions prepared prior to the appeal hearing day enabled the Court to deal with the appeal on that day means, in my view, that the costs of preparing for that day of hearing were incurred without reasonable cause in circumstances for which the appellant's then legal practitioners (Mr Conomos and his solicitors), as they conceded, were responsible. However the hearing day itself was not entirely wasted and its costs would have been incurred, in any event. However the inadequacy of the appellant's written submission prior to the hearing meant both parties had to prepare further written submissions.

212 In my view the costs of any more than one set of written submissions were wasted costs incurred by the serious neglect of Mr Conomos and the appellant's solicitor, Mr Eugene Lepore. The costs of the Motion were also wasted costs occasioned by the appellant's solicitors' serious incompetence in failing to communicate the Court's direction properly to Dr Morrison and Mr McHugh, thus leading to the Motion seeking leave to file yet more submissions. 213 In my view the appellant should only be liable to pay the costs of one set of written submissions prepared both for himself and for the respondent. The wasted costs should be borne by his legal representatives. 214 Section 99 enables the Court, where it has concluded that costs have been incurred in the circumstances contemplated by s 99(1) to: "… direct the legal practitioner: (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs" 215 The question of who, as between Mr Conomos and Mr Lepore should bear the burden of a s 99 order was not addressed in the course of submissions. Further, the question of whether the respondent should be the beneficiary of an indemnity costs order was left for determination once the judgment was delivered. 216 These issues should be addressed in further written submissions as outlined in the orders I propose. As there may be a conflict of interest issue as between the appellant and Mr Lepore (Mr Conomos I assume no longer being retained), it may be necessary for the appellant to have separate legal representation on these issues. I express these conclusions only tentatively because much will depend on the degree to which Mr Lepore (and Mr Conomos) accept responsibility for the wasted costs. 217 I propose the following orders.

Kendirjian v Ayoub

At a glance

Court

Decision date

Before

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Judgment (90 paragraphs)

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Cases Cited (40)

Cited By (18)