Kendirjian v Lepore

The Personal Injuries Proceedings

1. As I have indicated, the plaintiff was injured on 21 November 1999 when a car driven by a Ms Ayoub turned across the path of the plaintiff's vehicle. The plaintiff argued at trial that, as a result of the accident, he suffered injuries to his neck, back, left thigh, left ankle and bladder. The plaintiff's Statement of Particulars recited a long list of disabilities said to have arisen from these injuries. The plaintiff claimed that, as a result of these injuries, he was left severely physically and psychologically disabled, to an extent that substantially interfered with his enjoyment of life. Crucially, he claimed he had no residual earning capacity, and accordingly, was unable to continue his pre-accident occupation as an auto electrician.
2. The defendant admitted liability, and thus the hearing of the matter was confined to the assessment of damages. The defendant's case before Delaney DCJ can, I think, be fairly summarised simply as being that the plaintiff was exaggerating both his injuries, and the extent to which those injuries interfered with the conduct of his life. This submission was considerably fortified by the tender at trial of approximately three hours of video footage. This video footage had been recorded over three years, namely: 2000, 2002 and 2004. The video evidence tended to falsify the plaintiff's evidence as to his disabilities. For example, contrary to his evidence, it showed that the plaintiff was able to walk freely and up stairs without apparent restriction, and was able to kneel, bend, drive vehicles, squat, and lift heavy objects.
3. This evidence went self-evidently to the plaintiff's credit generally, but more specifically, to his assertion that his injuries were such that he was no longer able to work in his calling as an auto electrician.
4. Delaney DCJ drew a number of conclusions adverse to the plaintiff's credibility based on the video footage. These conclusions were helpfully summarised in McColl JA's judgment in the New South Wales Court of Appeal, which I gratefully reproduce: 1. that the 2000 video was "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": primary judge (at [35]); 2. that the 2000 video which conveyed the impression to the primary judge of the appellant bending, stooping, lying down on a trolley and walking in a normal fashion was of some significance because the appellant's evidence was that his physical condition about this time was such that he had to give away his business: primary judge (at [35]); 3. that the 2002 video showed the appellant walking normally: primary judge (at [36]); 4. that the appellant's complaints in medical reports and his evidence appeared to be different to the 2000 and 2002 video images and that, in the light of that conclusion, the appellant's "evidence about physical disability [could not] always [be] accepted as reliable and must be approached with considerable reserve where not corroborated": primary judge (at [33]); 5. he rejected the appellant's evidence that he was in pain as he did the work depicted in the 2004 video and that he could not perform such work consistently: primary judge (at [32]); and 6. that overall the video evidence "undermined the reliability of the plaintiff's evidence about the daily effect that his injuries have had on him": primary judge (at [36]).
5. As I have previously indicated, His Honour went on to enter verdict and judgment in favour of the plaintiff in the sum of $308,432.75.
6. The plaintiff was dissatisfied by the award of damages of the trial judge in the Personal Injuries Proceedings, having the view that his case was worth more than the sum awarded to him. He commenced proceedings in the New South Wales Court of Appeal. The appeal was heard on 29 October 2007 and 26 November 2007. The leading judgment is that of McColl JA, with whom Beazley JA agreed. The Court found no appellable error in the judgment of the trial judge, and as a consequence, the appeal was dismissed.

The Current Proceedings

1. The Amended Statement of Claim against the first defendant pleaded some 13 particulars of negligence. As against the second defendant, some 15 particulars of negligence were pleaded.
2. At the commencement of his closing submissions, the plaintiff indicated that he was limiting his claims against the defendants to the particulars of breach constituting the Settlement Offer Issue. That decision was in my opinion quite appropriate, as the evidence before me was relevantly limited to the Settlement Offer Issue.
3. As a consequence of the plaintiff's limiting the matters in issue in this fashion, many of the issues which may have otherwise arisen under the Civil Liability Act 2002 (NSW), fell away. Indeed, the defendants conceded that if the plaintiff's contentions were accepted in relation to the Settlement Offer Issue, then their clients had breached their respective duties owed to the plaintiff.
4. The defendants for their part abandoned any further reliance on advocates' immunity. As such, subject to potential issues concerning causation and the question as to whether the proceedings are statute barred, the proceedings came down to a contest as to credit.

The Plaintiff's Evidence

1. The matter proceeded by way of affidavit.
2. The plaintiff's evidence was that during the course of the first morning of the Personal Injuries Proceedings, apparently while Delaney DCJ was dealing with case management issues in respect of other matters in his list, the first and second defendants entered the room which the plaintiff was occupying, and the following exchange took place: Mr Conomos: Stand up, stand strong, be a man. An offer has been made. The plaintiff: Alright, well what is the offer? Mr Conomos: It is too low. The plaintiff: Well how much? Mr Conomos: Look, who is running this show, me or you? You've hired me to do the job, so let me do the job. The plaintiff: Okay, okay.
3. He then says that the barrister for the defendant came and asked Mr Conomos whether they could have a word, at which point the second defendant, Mr Conomos, then left the room. The plaintiff deposes that ten minutes thereafter, Mr Conomos returned to the room and a conversation to the following effect took place: Mr Conomos: Take a seat. The plaintiff: I feel more comfortable standing. Mr Conomos: There has been an offer made but it is too low. The plaintiff: What was the offer? Mr Conomos raised his voice Mr Conomos: Relax! Everything is in your favour
4. The plaintiff then alleges that, on the morning before the second day of the hearing, he again said to Mr Conomos "what was the offer?, to which Mr Conomos was said to have replied in an abrupt tone "I told you it was too low and you will be left with nothing. I am running the show".
5. The plaintiff's son Johnny also put on an affidavit. He gives evidence that is broadly consistent with that of his father.
6. The plaintiff gave evidence that the first occasion on which he became aware of the fact that the defendant had made an offer of $600,000 plus costs, was in a telephone conversation with a Mr Ian Jones which occurred in April 2009. Mr Jones was a solicitor then acting for the insurers of the defendant in the Personal Injuries Proceedings, and he was in touch with the plaintiff for the purposes of finalising payment to him of the balance of the verdict monies following the plaintiff's unsuccessful appeal to the New South Wales Court of Appeal.

The Defendants' Evidence

1. The first and second defendants deny the plaintiff's version of events concerning the Settlement Offer Issue and say that: 1. they advised the plaintiff in terms that the offer was $600,000 plus costs; and 2. the plaintiff instructed them to reject the offer. They depose that, on the first morning, the first offer that was made by the defendant was to settle the matter in the sum of $500,000 inclusive of costs. That was met by a counter-offer by the plaintiff (given on instructions), of $1,400,000 plus costs. That offer, they stated, was designed to ensure that the plaintiff would receive the sum of at least $1,200,000 in hand, following the payment of costs and other monies which were recoverable out of any settlement sum. The figure of $1,200,000 clean was explained as the plaintiff's "bottom line" (my expression).
2. Messrs Lepore and Conomos' evidence was that the defendant saw the $1,400,000 offer as totally unrealistic, and senior counsel for the defendant sought Mr Conomos' assistance in advising his client to seek a more realistic sum. It was against that background that the offer of $600,000 was said to have been made. Mr Conomos and Mr Lepore gave evidence that they encouraged the plaintiff to give them instructions to make a counter-offer in the sum of $800,000, but that the plaintiff refused to do so. He was insistent, they said, that he receive $1,200,000 clear of all deductions.
3. The net result of this stance, was that the defendant ceased to treat with the plaintiff in relation to settlement, and the matter ran to its conclusion.
4. Mr Lepore, the first defendant, gave evidence that on the afternoon of the first day of the hearing, after he had returned to his office from Court, he prepared a file note. He states that he dictated the file note which was typed by a member of his staff. The file note is in the following terms: FILE NOTE David Kendirjian 30 August, 2006 Matter listed before the District Court Parramatta. Mr Conomos for the Plaintiff. Before starting the matter Mr Conomos tried to obtain instructions from Mr Kendirjian if we could put an offer of settlement to the other side. Mr Kendirjian was adamant that he would not accept anything less than 1.2 million clear to him. Mr Kendirjian indicated that unless this amount of money was paid to him he would rather run the case. Prior to commencing proceedings Mr Ronzani for the defendant put an offer of settlement in the sum of $600,000.00 all inclusive. This offer was rejected by Mr Kendirjian. Mr Conomos was trying to see whether Mr Kendirjian was prepared to negotiate. Mr Conomos asked Mr Kendirjian whether he would give him instructions to put a counter offer of $800,000.00 to which Mr Kendirjian replied indicating that the offer would be extremely low and would not entertain anything below 1.2 million. At that point it was agreed that since Mr Kendirjian was not prepared to negotiate and it would not be wise for us putting any pressure upon him it was best if the matter was to run as he was not showing any attempts to negotiate. Eugene Lepore
5. Mr Lepore also gave evidence that, as a result of the rejection of the offer of $600,000 by the plaintiff, and his refusal to take the advice of his solicitor and counsel to make a counter offer in the sum of $800,000, Mr Lepore says that he prepared a handwritten note reflecting the fact that those instructions had been given by the plaintiff, which instructions were contrary to both the advice of Mr Lepore, and Mr Conomos ("The Acknowledgment"). He gave evidence that the plaintiff signed The Acknowledgment before going into the Court room, and that when he returned to his office that afternoon, he hole-punched The Acknowledgment and placed it in the correspondence file. He says that that occasion was the last time that he saw The Acknowledgment.
6. Being dissatisfied with the result at first instance, and in the New South Wales Court of Appeal, the plaintiff contacted the first defendant and sought to recover his file. This occurred, but immediately prior to the recovery of the files, Mr Lepore arranged for a senior employed solicitor, a Mr Nash to go through the correspondence file to photocopy out of it the most important documents. As Mr Nash was a solicitor of some twenty years' experience in personal injuries work, Mr Lepore did not see it as appropriate to indicate to him what documents he should copy.
7. For reasons which now cannot be explained, The Acknowledgment was not amongst the documents which were copied by Mr Nash and retained by Mr Lepore. Nor was it produced by Mr Kendirjian from the files which he uplifted from Mr Lepore.
8. Mr Nash was not called and thus at first blush, the possibility of an adverse inference being drawn pursuant to what is usually known as the rule in Jones v Dunkel (1959) 101 CLR 298 might have arisen. Mr Lepore gave evidence, however, that some years ago, Mr Nash suffered a serious stroke while at work, which has left him with mental impairment, such that he was unable to be approached to attempt to provide assistance in the matter. This evidence was uncontradicted, and accordingly, no occasion arises to consider the possible application of Jones v Dunkel.
9. Similarly, as the file has been in the possession of the plaintiff for many years, and has passed through the hands of various firms of solicitors, I draw no inferences from the fact that it no longer is to be found in the correspondence file.

Credit Determination

1. As I have indicated, the resolution of this matter comes down to a determination as to where the truth lies in relation to the events surrounding the Settlement Offer Issue, and it is to that subject that I now turn.
2. I regret to say that I have found the plaintiff to be an unsatisfactory witness. From the outset of his cross-examination, the plaintiff seemed determined to ensure that his answers to questions were accompanied by unresponsive material designed to counter problems which he appeared to clearly perceive to be present in his case.
3. The most fundamental of those problems was the fact that in the proceedings before Delaney DCJ, the plaintiff gave evidence in very concrete terms concerning the extent and constancy of his disabilities following the car accident. He said in summary that his disabilities were serious and constant. His assertions as to the extent and nature of his disability were ultimately found by Delaney DCJ to have been exaggerated. The foundation of that finding was the video surveillance evidence which showed the plaintiff engaged in activities, both in his business as an auto electrician and generally, which he had asserted in his oral evidence that he was incapable of undertaking. Examples of the evidence of the plaintiff in the Personal Injuries Proceedings which were falsified by the video surveillance evidence include: 1. that in November 2000, the plaintiff was physically unable to do anything at all (Ex D1-6, p 15); 2. that in 2002, far from being able to work, the plaintiff was unable to undertake "an odd job on my own car" (Ex D1-6, p 18); 3. that the plaintiff suffered from constant low back pain which he rated as "9 out of 10", and which was still the situation at trial (Ex D1-6, p 26); and 4. that in relation to the plaintiff's description of his pain as being "constant", he understand that term meant "it's there all the time", or "there's never a moment during the day when you don't have it" (Ex D1-6, p 46).
4. It was clear to me that the plaintiff was aware of the difficulty which evidence of this type and the findings of Delaney DCJ posed for him, and in an attempt to overcome them, he took refuge in two broad propositions, namely: 1. that his medical problems (especially his back problems) were in fact variable; and 2. that he was sometimes able to overcome the effects of his disability in a working environment by increasing the dosage of his medication.
5. These propositions were inconsistent with the plaintiff's evidence before Delaney DCJ. I do not accept them. I find that the plaintiff instructed his solicitors and counsel that his disabilities were serious and constant, and those disabilities precluded him from work, and gave evidence accordingly.
6. As cross-examination before me proceeded, when the plaintiff was most squarely confronted with questions suggesting the falsity of his evidence, he became more animated and strident in his responses. In short, I formed the view that the plaintiff used the occasion of giving evidence on oath as an occasion for advocacy, not an occasion for telling the truth.
7. I am unable to accept the plaintiff's evidence, except to the extent to which such evidence is contrary to his interest.
8. I should add, however, that I have not decided the question of the plaintiff's credibility solely on the "subtle influence of demeanour" (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (per McHugh J)). Indeed, I am conscious of the statement of Atkin LJ in Societe d' Avances Commerciales v Merchants' Marine Insurance Co. (1924) 20 Ll. L. Rep 140 at 152, namely "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour".
9. It is therefore to, what seemed to me to be, the objectively provable facts and circumstances that I now turn:

• There were several file notes prepared by Mr Lepore which presented significant problems for the plaintiff's case. These were: 1. file note of 27/06/05 (the typed version of which is Ex D1-5, p 72); 2. file note of 21/03/06 ( Ex D1-5, p 75); and 3. file note of 28/03/06 (Ex D1-5, p 80). The file note of 27/06/05 records, inter alia, the following: Matter set down for hearing August 05 Also discussed matter in general. Claimant indicated he will not settle for less than $1.8M Advised - unlikely to be offered a figure near what he expects Will need to run his case Assessment only Prefers to run his case. Advised - will need to - I and Counsel will advise him as to any offers made and he will need to decide. The file note of 21/03/06 is in the following terms: 21/3/06 Re: Kendirijian Conference with client. Discussed domestic assistance. Went through O/P's. Discussed agreement again. Advised about ½ of the costs paid by the D Agrees as to costs Understands at end of the day he will probably need to contribute $120,000 to $150,000 + GST Also advised - Mr McCloghry deceased P was shocked - said "I have all the bad luck" - later understood. Went through facts again to assure him all ok. Advised - Assessment only Now over 10% WPI Discussed alternative Counsel Agreed to use Mr Conomos Senior not required Advised Conomos very experienced Served on Bench. Knows what cases are worth and how to run them. Believes we should go through the case and heads of damages. I agreed. Also agreed to have conference with Mr Conomos. 3 hours. 21/3/06 The file note of 28/03/06 is in the following terms: 28/3/06 Re: Kendirijian Conference with client. Long Conference. Discussed Cross Claim. Client upset. Advised - we will object to matter going over. Alleges Dr Kam did nothing wrong Leg pain got a little better. Went through all the facts. Discussed all heads of damages. Advised - most difficult to assess - future economic loss - care and domestic assistance. Client alleges the business would have picked up & make good money. Advised of Tax Returns - unfortunately not high. Also loss of business. Need to look and assess the loss of business. I will speak to Furzer Crestani Client wants to be at court on day of Motion Agreed for client to be at Court. 3 hours + 28/3/06
• These file notes to some extent were relevant to the particulars of breach which were ultimately not relied upon by the plaintiff. However, when he was cross-examined on them, they went to what were then live issues in the proceedings. The file notes contradicted the plaintiff's assertions that he was not properly advised as to the nature of his case, and his prospects. In addition, the file note of 27/06/05 showed the establishment of a regime for the conveying of offers, and taking instructions on them. When he was cross-examined on these documents, the plaintiff suggested each was a fraudulently created document, prepared presumably after the event, for the purpose of this case (see T144.5, 145.17, 146.38).
• These assertions reflected very badly on the plaintiff, in my view. The handwritten file notes are self-evidently contemporaneously prepared, and I find were not fraudulently concocted, as the plaintiff alleges.

1. Both defendants relied on a particular matter which they submitted was damaging to the plaintiff's credit. On several occasions, in his oral evidence, the plaintiff gave evidence that when Mr Jones told him of the offer, Mr Jones described the offer as being an offer of $650,000 plus costs. In his affidavit, however, Mr Kendirjian deposed to being told by Mr Jones that the offer was $600,000 plus costs. At first blush, this discrepancy might be thought to be understandable, given the effluxion of time. When cross-examined on the issue, the discrepancy took on a more telling influence on the plaintiff's credit. This was so as it emerged that even though, at the time of swearing his affidavit, he still believed that Mr Jones had told him that the offer was in the sum of $650,000, he nonetheless swore in his affidavit that the sum of the offer was $600,000. He said he took that course because his lawyer stated that this figure was supported by Mr Lepore's file (T210.5).
2. This presented Mr Kendirjian with a dilemma as both pieces of sworn evidence (one oral, one by way of affidavit) could not be correct. He was unable to extricate himself from this forensic dilemma, which dilemma was compounded by his stubborn refusal to concede that one version was incorrect (T210 and following).
3. The questioning also highlighted the fact that the plaintiff's affidavit evidence was largely reconstructed by reference to Mr Lepore's file. He conceded as much in cross-examination (T24.20-41). This fact in itself tends to cast doubt on the plaintiff's recollection of events. Perhaps more significantly, it led the plaintiff to the horns of another dilemma, as the file from which he was preparing his affidavit contains the file notes to which I have referred in paragraphs 36 and 50 of these reasons, which were at the very least, unhelpful to the plaintiff's case. Faced therefore with parts of Mr Lepore's file which he wished he had not found, Mr Kendirjian ignored them in chief, and reverted to the allegation of the fraudulent creation of those documents in cross-examination. This evidence was very damaging to his credit.
4. The defendants in their written and oral submissions have given further examples of matters which they assert undermine the plaintiff's credit. I accept that these incidences have that effect, though given the matters set out above, I do not see it as necessary to deal with each of them.
5. The defendants, on the other hand, gave their evidence in a calm and measured manner. Their evidence was consistent with the objectively ascertainable facts and circumstances. I have little hesitation in accepting the defendants as witnesses of truth.
6. It follows, therefore, that I accept the defendants' evidence of what occurred on the morning of 30 August 2006 in relation to the Settlement Offer Issue, and reject that of the plaintiff.

Johnny Kendirjian

1. The plaintiff also relied on the evidence of his son, Johnny Kendirjian. In his affidavit dated 30 April 2013, Mr Kendirjian Jr gives evidence of the motor vehicle accident, his father's disabilities, and more significantly, the events of the first day of the hearing of the Personal Injuries Proceedings. On that day, Mr Kendirjian Jr was a boy of 16 years of age. His evidence is supportive of his father's contentions as to what occurred, so supportive that the first defendant submitted that he "stubbornly adhered to every word of his affidavit, denied even the possibility that his recollection may have been an error, even though in the box he was not able to recall the conversations he deposed to. He was plainly willing to give evidence to assist his father." I believe that there is force in those submissions.
2. I formed the view that Mr Kendirjian Jr was intent on supporting his father's case at all costs. He gave evidence that the events of 30 August 2006 had been the subject of regular discussion within the family (T260.13 - 261.15). It is easy to imagine that the cumulative effect of the regular recounting of those events, in a manner consistent with the assertions of Mr Kendirjian senior, would have had the effect of constantly reinforcing that version of events as being true, in the mind of the son.
3. As such, I do not criticise Mr Kendirjian Jr for his evidence, though I am unable to rely on it as being truly corroborative of the evidence of his father. Having rejected the evidence of Mr Kendirjian senior as being contrary to objectively ascertainable facts and circumstances, it must follow as a matter of logic that I cannot accept that substantially identical evidence out of the mouth of his son.

Causation

1. Given the conclusions to which I have come in relation to the issue of breach, it is strictly unnecessary for me to touch on the issue of causation. I will deal with the issue very briefly however, in case my conclusions about causation become relevant in another place.
2. The plaintiff bears the onus of proving a causal link between breach and loss pursuant to the provisions of section 5E of the Civil Liability Act 2002 (NSW). In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253, Leeming JA (with whom McColl and Basten JJA agreed) observed that: [95] Unlike duty and breach, the inquiry as to causation is "wholly retrospective [and] … seeks to identify what happened and why": Vairy v Wyong Shire Council [2005] HCA 62 ; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s.5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff's proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14]. [96] Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]... As was confirmed recently by the Court of Appeal in Boateng v Dharamdas [2016] NSWCA 183: [92] The determination of "factual causation" in accordance with s.5D(1)(a) of the Civil Liability Act "is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam [2013] HCA 19; 250 CLR 375 (Wallace v Kam) at [14]. It involves nothing more or less than the application of a "but for" test of causation: Wallace v Kam at [16].
3. Section 5D(3) of the Civil Liability Act 2002 (NSW) dictates that the issue of what the person who has suffered harm would have done if the negligent person had not been negligent, is to be determined subjectively in the light of all the circumstances (section 5D(3)(a)). Direct evidence by the plaintiff as to what he would have done but for the negligence is inadmissible, unless against the plaintiff's interest. I rejected certain of the plaintiff's affidavit evidence on this basis.
4. The question (on the counterfactual of me accepting Mr Kendirjian's version of events), therefore, is what subjectively he was likely to have done if he had been told of the $600,000 plus costs offer on the first morning of the trial. The evidence seems fairly clear that on 27 June 2005, the plaintiff told Mr Lepore that he would not settle the case for less than $1,800,000 (Ex D1-5, p 72). On the first day of the hearing, the plaintiff said to Mr Lepore and Mr Conomos that he wanted $1,200,000 clear, and if he did not achieve that result at first instance, he would go to the New South Wales Court of Appeal or High Court (Ex D1-5, p 89). It is against this background that the plaintiff is required to prove that on the balance of probabilities the defendants' negligence was a necessary condition of the rejection of the $600,000 offer. I do not believe he has discharged this onus. I find that had the $600,000 offer been communicated to him, he would have rejected it.

Limitation of Actions

1. The solicitors for the defendants argued that the proceedings were statute barred. This argument proceeded from the proposition that time ran against the plaintiff from the first moment that pecuniary obligations were incurred by him, after the rejection of the offer of $600,000 plus costs.
2. Unlike the issue of causation, it seems to me that there is no utility in me expressing a view on this issue, as it involves no factual findings.

Conclusion and Orders

1. I find that the offer of $600,000 plus costs made by the defendants on the first morning of the Personal Injuries Proceedings was communicated to the plaintiff, who gave both defendants instructions to reject it; and as such, the plaintiff must fail.
2. I make the following orders: 1. Verdict and Judgment for the defendants. 2. The plaintiff to pay the defendants' costs

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