LONGHURST & ANOR v HUNT

Court of Appeal (NSW)|2004-02-09|Before: Sheller JA, Santow JA

CITATION : LONGHURST & ANOR v HUNT [2004] NSWCA 91 revised - 31/03/2004 HEARING DATE(S) : 9 February 2004, 2 March 2004 JUDGMENT DATE : 31 March 2004

JUDGMENT OF : Sheller JA at 1; Santow JA at 5; Stein AJA at 10 DECISION : 1 Appeal allowed; 2 Set aside the verdict for $380,500; 3 Parties to bring in short minutes of order within 3 days setting out the amount of the verdict in accordance with the reasoning of the majority; 4 The defendants to pay the plaintiff's costs of the trial; 5 Each party to pay his own costs of the appeal; 6 Cross-appeal dismissed with costs; 7 Liberty to apply on 24 hours notice.

CATCHWORDS : Motor vehicle accident - liability - credibility of witnesses - admissibility of witness statements - s135 Evidence Act - non-economic loss - separate medical assessment certificates - whether entitled to aggregation of psychological/psychiatric injury impairment and physical injuries impairment - meaning of s133(3) Motor Accidents Compensation Act 1999 Evidence Act 1995 LEGISLATION CITED : Interpretation Act 1987 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Geaghan v D'Aubert [2002] NSWCA 260 CASES CITED : House v The King (1936) 55 CLR 499 Ordukaya v Hicks [2000] NSWCA 180 David Longhurst - First Appellant PARTIES : Brian Kenneth Thompson - Second Appellant Christopher Hunt - Respondent FILE NUMBER(S) : CA 40489/03 COUNSEL : R R Bartlett SC/J Harris - Appellants P W Neil SC/J S Drummond - Respondent SOLICITORS : McCourts Solicitors - Appellants Beilby Poulden Costello - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 4120/02 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40489/03 DC 4120/02

SHELLER JA SANTOW JA STEIN AJA

Christopher Hunt, the plaintiff, alleged that on 24 November 1999 a motor vehicle struck him in the right arm, knocking him to the ground, while he was waiting to cross the road at Ian Street, Rose Bay close to the corner of Dover Road. The plaintiff claimed that the first defendant, David Longhurst was the driver and the second defendant, Brian Thompson, was the owner of this vehicle. The defendants denied that the vehicle being driven by Mr Longhurst struck the plaintiff.

The plaintiff commenced proceedings claiming damages from the first and second defendants for injuries suffered as a result of the motor vehicle accident. The injuries claimed by the plaintiff related principally to his career as a pianist and musician and included a closed head injury, loss of hearing in the right ear and injuries to the right arm, right leg, neck and shoulders. The plaintiff claimed damages for economic and non-economic loss and for his out of pocket expenses

There was no agreement between the parties concerning the events, which occurred on 24 November 1999. Apart from the plaintiff, no one saw the impact itself. However, there were a number of witnesses to the aftermath. These included two people who knew the plaintiff, a Mr Colin Walsh and his son, Christos Walsh, who gave evidence which supported the plaintiff's description of the incident and two sisters, Lisa and Victoria Zappia, who suggested that there was no collision between the plaintiff and the van but that the plaintiff had merely fainted.

The trial Judge held, after reviewing the factual and medical evidence, that the plaintiff had met the standard of proof necessary to satisfy her Honour that he was struck by the van as he claimed and that the impact caused the injuries which he alleged. In reaching this decision, the trial Judge made a finding that the first defendant was not a credible witness and found the plaintiff to be a witness of truth. The trial Judge rejected the tender of the statements of Lisa Zappia and her sister. In relation to damages, the trial Judge awarded $380,355.37 including an amount of $125,000 for non-economic loss.

The appellant challenged the findings of the trial Judge in relation to the accident, submitting that her Honour failed to consider that the plaintiff was hit by a vehicle other than that driven by the first defendant and erred in finding in favour of the plaintiff when the court did not accept any evidence establishing that the vehicle driven by the first defendant hit the plaintiff. The appellant contended that the trial Judge erred in awarding damages for non-economic loss because the combination of the separate medical assessment certificates was contrary to s133 of the Motor Accidents Compensation Act 1999 and also erred in assessing economic loss. Further, it was submitted that the statements of Victoria and Lisa Zappia should have been admitted into evidence.

Held in relation to liability: Per Stein AJA, Sheller and Santow JJA agreeing:

There was in fact no reason for her Honour to set aside and ignore the evidence of Mr Colin Walsh and Mr Christos Walsh. Their evidence should have been considered.

The "fainting" theory suggested by the defendant was not supported by any of the medical evidence. Her Honour was amply entitled to conclude that the plaintiff sustained his injuries by being knocked down by the van.
The trial Judge was entitled to reject the defendant's evidence and prefer the plaintiff's account. When properly considered, the evidence of the Walshes confirmed much of the Plaintiff's version of events. Once the plaintiff's account is preferred over that of the defendant, and the evidence of the Walshes is taken into consideration, the defendant's liability is clear.

Held in relation to the admissibility of the statements of Victoria & Lisa Zappia: Per Stein AJA, Sheller and Santow JJA agreeing: 4. Bearing in mind, that it appears that all reasonable steps were not taken by the defendant to compel the Zappia sisters to give evidence, and noting that the trial Judge was exercising a discretion, it is difficult to conclude that her Honour erred in the manner explained in House v King (1936) 55 CLR 499. 5. The trial Judge would have been entitled to exclude the statements under s135 of the Evidence Act 1995 because it would not be unreasonable to conclude that the probative value of the evidence was outweighed by the unfair prejudice to the plaintiff in not being able to cross-examine on such crucial issues. 6. Even assuming that s135 was not available to reject the statements, they should be given little weight, given that each statement contains substantial inaccuracies and inconsistencies from the undisputed facts and in light of the absence of the Zappia sisters from the witness box.

Held in relation to damages for non-economic loss: Per Stein AJA, Santow JA agreeing: 7. Section 133(3) of the Motor Accidents Compensation Act and the identical provision in para 1.28 of the MAA Medical Guidelines mean that unless the degree of permanent impairment is made solely with respect to psychiatric or psychological injury, then such injury cannot be taken into account in the assessment of the degree of permanent impairment, necessary to overcome the ten percent threshold imposed by this section. 8. Therefore psychological/psychiatric injury impairment, expressed in a percentage by the relevant medical assessor, cannot be aggregated with a percentage for physical injuries impairment, though separately so assessed, to overcome the threshold for the entitlement to non-economic loss. 9. It follows that the plaintiff is not entitled to an award for non-economic loss and the verdict must be adjusted to deduct the damages awarded under this head. Per Stein AJA: 10. This interpretation of s133(3) does not mean that if the physical impairment exceeds the threshold that a psychological/psychiatric injury assessment, of whatever percentage, cannot be taken into consideration in the assessment of non-economic loss. Per Santow JA: 11. I am inclined to agree with Stein AJA that if either psychological/psychiatric injury or physical injury by itself exceeds 10 per cent then aggregation is thereafter permitted to quantify this outcome. However, this conclusion is necessarily tentative, as in this matter, it is not necessary to reach a final view on this issue, given that the threshold is not exceeded by either assessment individually. Per Sheller JA: 12. The meaning of subsection 133(3) of the Motor Accidents Compensation Act is not clear. In the present case, there were two assessments, one of the plaintiff's physical disabilities and the other of permanent impairment in respect of psychiatric/psychological injury which was conducted by Dr Lovell. Dr Lovell's assessment was, as a matter of language, an assessment of the degree of permanent impairment made solely with respect to the result of a psychiatric or psychological injury and therefore fell within the s133(3) and para 1.28 of the MAA Medical Guidelines. 13. The trial Judge was entitled to proceed on the basis that the 10 per cent threshold prescribed by s131 had been satisfied.

Held in relation to damages for economic loss: Per Stein AJA, Sheller and Santow JJA agreeing:

The trial Judge was entitled to reject the plaintiff's claim that he would have been in permanent as opposed to casual employment, as there was no documentary evidence to support this claim.
There is no reason to interfere with her Honour's conclusion that the plaintiff had a residual earning capacity of $250 per week. This was a finding open on the evidence. Once it is accepted that $400 net per week and not $693 is the appropriate measure of the plaintiff's pre-injury working capacity, it follows that the loss is $250 net per week.
Economic loss and interest should be adjusted accordingly. Legislation:

Evidence Act 1995 Interpretation Act 1987 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987

Geaghan v D'Aubert [2002] NSWCA 260 House v The King (1936) 55 CLR 499 Ordukaya v Hicks [2000] NSWCA 180 ORDERS

Appeal allowed;
Set aside the verdict for $380,500;
Parties to bring in short minutes of order within 3 days setting out the amount of the verdict in accordance with the reasoning of the majority;
The defendants to pay the plaintiff's costs of the trial;
Each party to pay his own costs of the appeal;
Cross-appeal dismissed with costs;
Liberty to apply on 24 hours notice. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40489/03 DC 4120/02

SHELLER JA SANTOW JA STEIN AJA

LONGHURST & ANOR v HUNT Judgment 1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by Stein AJA. I agree with his Honour that the trial Judge was entitled to reject the defendant's evidence and prefer the plaintiff's account for the reasons his Honour has given. I also agree that the statements prepared by Lisa Zappia and her sister, Victoria Zappia, carried little weight in the absence of any explanation of the various inaccuracies to which his Honour has referred and given their absence from the witness box. In my opinion, even if admissible, the trial Judge's rejection of them would not entitle the defendant to a new trial. I am inclined to think that they ought to have been admitted under s63 of the Evidence Act 1995 but as I have said, such was their weight it would have made no difference to the outcome of the trial. 2 I differ from Stein AJA's view about the construction of s133(3) of the Motor Accidents Compensation Act 1999. The meaning of the subsection is not clear. In the present case, there were two assessments, one of the plaintiff's physical disabilities by Dr Carroll and Dr Lorentz, and the other of permanent impairment in respect of psychiatric/psychological injury by Dr Lovell. That assessment was, as a matter of language, an assessment of the degree of permanent impairment made solely with respect to the result of a psychiatric or psychological injury. That being so, it fell within the condition prescribed by s133(3) and para 1.28 of the relevant MAA Medical Guidelines and subsection (3) did not forbid regard being had to it. I contrast the language of s1511H(2)(c) of the Workers Compensation Act 1987 which is as follows: "(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): … (c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%." 3 In my opinion, the trial Judge was entitled to proceed on the basis that the 10 per cent threshold prescribed by s131 had been satisfied. 4 I agree with what Stein AJA says about economic loss. 5 SANTOW JA: I have had the advantage of reading in draft the judgments prepared by Sheller JA and Stein AJA, the principal judgment being written by Stein AJA. They agree on all matters save the construction of s133(3) of the Motor Accidents Compensation Act 1999 ("MAC Act"). On that matter of construction, I agree with Stein AJA's conclusion concerning non-economic loss damages. He concludes that the appellant succeeds in his contention that psychological/psychiatric injuries impairment, expressed in a percentage by the relevant medical assessor, cannot be aggregated with the corresponding percentage for physical injuries impairment though separately so assessed, in order to overcome the ten percent threshold for entitlement to non-economic loss. 6 My reasons for agreeing with Stein AJA are essentially those set out in his judgment. I would add that it would be a highly artificial result if the respondent were correct in concluding that the provision in question (s133(3) of the MAC Act and para 1.28 of the MAA Medical Guidelines) were to permit the combining of the two assessments when made in separate certificates, but not when made in the one single certificate covering both physical and psychiatric injury. Such a construction would elevate form over substance. There can be no conceivable purpose, whether found in the objects of the Act contained in ss5 and 6 or otherwise, justifying such a result. 7 I find further support from the phrasing of s133(3). It refers in the singular to "the assessment of the degree of permanent impairment" being made "solely with respect to the result of a psychiatric or psychological injury" [emphasis added]. That singularity points to there being but one assessment eligible to be taken into account when first calculating compliance with the ten percent threshold. That is to say, either psychological/psychiatric injury, or physical injury must by itself exceed ten percent. If either does, then I am inclined to agree that, as Stein AJA suggests, aggregation is thereafter permitted to quantify that outcome. However, that conclusion is necessarily tentative as it is not necessary for the purpose of resolving the matter before us to reach a final view on that matter, given that the threshold is not exceeded by either assessment individually. 8 While it is true that s1511H(2)(c) of the Workers Compensation Act 1987 is drafted in a way that leaves no room for the kind of ambiguity that has caused difficulty in the present case, I do not find in that wording sufficient to suggest a contrary intention when it comes to s133 or para 1.28 of the relevant Guidelines. Rather, if anything that Act tends to support a convergent interpretation for the MAC Act, given the broad identity of purpose. That purpose is in each case to contain costs in either the motor accident field or the workers compensation field, in relation to the premiums payable under the relevant statutory scheme. The Minister's second reading speech here is quite unambiguous in his saying that aggregation is not permitted in order to exceed the ten percent threshold. 9 I therefore agree with the judgment of Stein AJA and the orders he proposes. On the other matters there is no difference of view between Stein AJA and Sheller JA and I join in their concurrence.

The appellant, David Longhurst, appeals against a decision of Acting Judge Gamble in the District Court awarding the respondent, Christopher Hunt, damages in the sum of $380,355.37. For convenience I will refer to the appellant as "the defendant" and the respondent as "the plaintiff". The appeal is against the finding on liability and also two aspects of the damages awarded, non-economic loss and the quantum of economic loss. With regard to the latter the plaintiff cross-appeals.

Liability 11 The plaintiff's case was that on 24 November 1999 the defendant's motor vehicle struck him while he was waiting to cross the road at Ian Street, Rose Bay, close to the corner of Dover Road. The defendant denied that his vehicle struck the plaintiff. 12 Apart from the plaintiff, no-one saw the impact itself. However, there were a number of witnesses to the immediate aftermath. These included two people who knew the plaintiff, a Mr Colin Walsh and his son Christos Walsh. 13 With respect to their evidence her Honour's reasoning took a somewhat unusual course. On one view, suggested by Mr Neil SC (for the plaintiff) it was understandable, although erroneous. 14 An attack was apparently made on the credibility of the evidence of Mr Walsh and his son. It seemed to be suggested, although it is by no means clear, that they had colluded with the plaintiff in giving evidence favourable to him and implicating the defendant. 15 This was a false issue but it seems to have diverted the judge. It appears to me that the police officer should not have been permitted to give evidence of his conversation with Mr Colin Walsh that he had not seen the impact, and such a statement was, in any event, equivocal. Moreover, the law clerk, Ms Harris, should not have been permitted to give evidence of her conversation with Mr Colin Walsh. Their evidence (Ms Harris and the police officer) does not seem to have been objected to but it is likely that the conversations were inadmissible. 16 What is clear is that the collusion theory (if that is what it was) was not put to either Mr Colin Walsh or his son, nor to the plaintiff. 17 This may explain parts of her Honour's reasoning. For example, after summarising the evidence of each witness, her Honour said: "If this evidence is accepted as truth, the only oral evidence before the Court is Mr Hunt's claim that he was struck, probably by the van he had seen when it was about to turn the corner into Ian Street, that and Mr Longhurst's denial. In addition there are Mr Hunt's injuries. Removal of the Walshes' evidence simplifies the matter by removing parts of the evidence which are inconsistent with Mr Hunt's account, that he was most likely struck by the side mirror of the van. However, the implication of Miss Harris' evidence is of collusion between Mr Hunt and the Walshes to support his claim." 18 "This evidence" in the above passage is a reference to the conversation between the police officer and Mr Colin Walsh and to the evidence of Ms Harris, to which I have referred. 19 Later in her reasons the primary judge said: "After reviewing the factual and medical evidence my conclusion is that Mr Hunt has met the standard of proof necessary to satisfy me that he was struck by the van as he claims and that this impact caused the injuries he alleges. In coming to this conclusion I am making a finding as well that I do not consider Mr Longhurst to be a credible witness. I am also disregarding the evidence called by the Defendants suggesting collusion between Mr Hunt and Colin and Christos Walsh. As indicated above my determinations of fact depend upon acceptance of Mr Hunt as the sole witness of the events, and if the evidence of Colin and Christos Walsh is set aside as unreliable, Mr Hunt's version of events becomes all the more persuasive. As all the other evidence relates to events after the impact itself, it is unnecessary for me to make findings on the credibility of the other witnesses, Ms Furnass, Constable Rowe and the Walshes. My key determination is that I prefer Mr Hunt's evidence to Mr Longhurst's and believe Mr Hunt to be a witness of truth. I do not believe Mr Longhurst when he says Mr Hunt was already on the ground as he approached." 20 There was in fact no reason for her Honour to set aside and ignore the evidence of Mr Colin Walsh and Mr Christos Walsh. Their evidence should have been considered. When it is, the plaintiff's case on liability is a powerful one. 21 The plaintiff's evidence was that he was waiting at the kerb to cross Ian Street when he saw a van approaching from Dover Road. He described the vehicle. It put its blinker on to indicate it was going to turn left into Ian Street. He waited for the van to turn the corner and pass him. He then saw the wing mirror of the van coming towards him. He put his right elbow up in a defensive reaction but was struck by the van, probably by the vertical mirror which extended about twelve inches out from the side of the vehicle. He was struck on the right arm and the impact sent him backwards and to the ground. 22 There are two aspects of the plaintiff's evidence which I should mention. First was the position on the Ian Street pavement that he placed himself on a photographic exhibit. Taken in the context of the whole of his testimony and that of the witnesses, he must have been incorrect. I would not place too much reliance on his measurements as long as the balance of his evidence is credible, as it is. Many people have a real difficulty in judging and reporting distances with accuracy. 23 The other aspect is the "fainting" theory. It was suggested that there was no collision between the van and the plaintiff. The plaintiff had merely fainted to the ground. The theory may be disposed of quickly since it was unsupported by any of the medical evidence. This material was usefully summarised by Mr Neil in a supplementary written submission handed up in Court on 2 March 2004. Her Honour was amply entitled to conclude that the plaintiff sustained his injuries by being knocked down by the van. 24 Mr Colin Walsh was driving along Ian Street towards Dover Road. His son Christos was a passenger. Mr Walsh saw a tradesman's van, "like an Econovan", creamy white in colour. As the van turned the corner from Dover Road into Ian Street it "rocked, like, shook like that as it came around the corner. It appeared to cut the corner". 25 Mr Walsh said that the van came very close against the corner and that it shook or rocked about a foot. He then saw a man falling to the ground behind the van. He recognised the man as the plaintiff. He stopped and went to his aid. The van had pulled up about 20 to 30 metres away. Mr Walsh identified the defendant as the man who alighted from the van and made a mobile phone call. He saw the man walk away to the east along Ian Street. A lady handed Mr Walsh a piece of paper with the registration number of the van on it. It included "106". He looked back up at the van and saw, he thought, "PNR 106". In cross-examination Mr Walsh was not challenged on this evidence. 26 Mr Christos Walsh said that at the time he noted the registration number of the van and recalled it was something in the vicinity of "106". He also identified the defendant, who he said never approached the accident scene. He was not cross-examined on this evidence. 27 On the issue of the impact, Christos corroborated his father's evidence. Christos saw the van turn into Ian Street with its blinker on. He saw a man, later identified as the plaintiff, standing on the corner. As it turned the corner the back of the van tilted a bit as if it had run over something or clipped the gutter. He said that as the vehicle passed he saw a man falling backwards. 28 Ms Furness gave evidence. She did not see the accident but she was nearby and "saw, felt or heard something" over her shoulder. She turned and saw a man (the plaintiff) lying on the footpath. 29 The evidence of the defendant denied any collision with the plaintiff. His evidence contradicted that of the plaintiff, Colin Walsh and his son. He did not deny that he was driving the van "PNR 106". He said that when travelling in Dover Road near the intersection with Ian Street he saw a man lying on the ground surrounded by a group of people. He decided to help so he turned left into Ian Street and parked at the first available spot. Unfortunately, he sideswiped a BMW car. He went to the man's aid and checked his breathing and pulse. When a woman identified herself as a doctor he left to report his accident with the BMW to his boss. 30 Her Honour said that she did not consider the defendant to be a credible witness. The plaintiff's version of events was persuasive and she preferred his evidence to that of the defendant. She added "I do not believe Mr Longhurst when he says Mr Hunt was already on the ground as he approached." 31 In my view, her Honour was entitled to disbelieve the defendant and accept the plaintiff. When properly considered the evidence of the Walshes confirmed much of the plaintiff's account. On the other hand the defendant's evidence was improbable. As Mr Neil submitted, it is highly improbable that some other van struck the plaintiff and fled the scene without being observed. The defendant's story about co-incidentally driving his van to the intersection, seeing the plaintiff lying on the pavement surrounded by people and deciding to park and assist could well be seen as fanciful. The fainting theory had no legs, as I have already observed. There was no issue as to the identification of the defendant by Mr Colin Walsh and Christos, nor their evidence of the identification of the defendant's van. 32 In my opinion, her Honour was entitled to reject the defendant's evidence and prefer the plaintiff's account. Such rejection of the defendant included rejecting his evidence of the plaintiff's position on the footpath after the accident, which is at odds with the evidence of all other witnesses. Once the plaintiff's account is preferred over that of the defendant, and the evidence of the Walshes is taken into consideration, the defendant's liability is clear.

The evidence of the Zappia sisters 33 The tender of statements of Lisa Zappia and her sister, Victoria Zappia was rejected by her Honour. They were sought to be admitted under s 63 of the Evidence Act 1995 on the basis that the witnesses were not available to give evidence and "all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success." See Clause 4(1)(f) of Pt 2 of the Dictionary to the Act. 34 Ultimately, after much debate, it seems that her Honour rejected the tender on the basis of a failure to comply with Cl 4(1)(f). However, during the exchanges with counsel it appears that her Honour was prepared to reject the tender by exercising her discretion under s 135 of the Evidence Act. 35 The sisters had apparently made handwritten statements in July 2000 and on 11 February 2003 typed versions were forwarded to each of them by the solicitors for the defendant. 36 On 3 March 2003 each of the Zappia sisters was served with a subpoena to attend the trial to commence on 1 April 2003. On 18 March 2003 the defendant's solicitors were notified by solicitors representing the Zappia sisters that they were both going overseas for an indefinite period. It was clear that Lisa was leaving on 20 March 2003. The evidence suggests that Victoria had already left. Their solicitor enclosed signed statements. On 20 March 2003 the defendant's solicitors wrote to the plaintiff's solicitors enclosing the statements and giving notice that they were to be tendered at the trial pursuant to s 63 of the Evidence Act. 37 The statements indicate that the sisters were both working in a fruit market in Dover Road across from the intersection with Ian Street. Victoria's statement dated 7 March 2003 said that on 24 November 1999 at about 3.00 pm she saw an elderly, tall man walking along Dover Road. She saw "this old man" collapse on the footpath. He had a walking stick. The man was not hit by a vehicle. She also said that her car was parked in Ian Street and was hit by the defendant. He had left a note on her windscreen saying he had hit her car. 38 Lisa's statement said that she will be leaving the country indefinitely on 20 March 2003. She saw a man of about 60 years of age wearing a heavy coat suit on a hot summer's day and walking along Dover Road near Ian Street. She saw the man just fall to the ground. There was no road traffic and it was really quiet. "I thought, 'poor old man,'" she stated. 39 Were all reasonable steps taken by the defendant to compel the Zappia sisters to give evidence? It seems, although it is not altogether clear, that by the time that the solicitor for the sisters contacted the defendant's solicitors, Victoria had already left the jurisdiction, but Lisa was not due to leave until 20 March. 40 What is apparent is that after receiving the letters of 18 March 2003 from the solicitor for the sisters, there is no evidence that the defendant had attempted to take any further action or step to require the attendance of either witness. They simply accepted the situation and notified the plaintiff's solicitors of the intention to tender the signed statements. 41 A number of questions arise. Should the defendant have acted earlier to prepare final statements for the witnesses and subpoena them immediately the April 1 hearing date had been allocated? Further, if the defendant believed that their evidence was so critical, he could have considered the taking of evidence by audio-visual link, or by evidence on commission or sought an adjournment of the trial. There is no evidence that any of these avenues was explored. 42 So far as Lisa is concerned, there does not appear to have been any attempt to remind her of her obligations to attend Court on 1 April 2003, having been served with a subpoena on 3 March and having received notice of the hearing date by letter dated 11 February. She could have been threatened with the issue of a bench warrant to compel her attendance. 43 Bearing in mind all of the above and noting that her Honour was exercising a discretion, it is difficult to conclude that her Honour erred in the manner explained in House v The King (1936) 55 CLR 499. 44 However, assuming that her Honour erred in the application of Cl 4(1)(f) of the Dictionary, then the question of the discretion to exclude the evidence under s135 of the Evidence Act arises. 45 There was argument before her Honour on the application of s 135 and the judge indicated that she accepted the submission of plaintiff's counsel that the statements should be excluded under the provision, see Black 206. 46 Her Honour would have been entitled to exclude the statements under s135 because it would not be unreasonable to conclude that the probative value of the evidence was outweighed by the unfair prejudice to the plaintiff in not being able to cross-examine on such crucial issues, see Ordukaya v Hicks [2000] NSWCA 180. This is underlined by a number of aspects of the statements. As her Honour observed "they are all over the place". 47 In terms of the application of s135(a) the following aspects of the statements may be noted. While the statements of the sisters corroborated the defendant's side-swiping of the BMW and that the plaintiff fell to the ground without being seen to have been hit by a vehicle, each statement contains substantial inaccuracies and inconsistencies from the undisputed facts. 48 For example, Victoria said that the man was elderly, wore a suit and had a walking stick. All of these statements appear to be erroneous. Lisa said the man was about 60 years of age and referred to him as a "poor old man". In fact the plaintiff was 45 years of age, had no stick and wore a T- shirt and not a suit. 49 These significant inaccuracies cast doubt on the observations made in the statements. The inaccuracies were such as would invite cross-examination. 50 Finally, assuming that s135(a) was not properly available to reject the statements, then in my opinion they should be given little weight bearing in mind the inaccuracies mentioned above and their absence from the witness box. 51 It should also be noted that the defendant accepts that the error should lead to a new trial. However, the defendant is unaware of the present whereabouts of the sisters or their availability for a new trial. 52 I would reject this aspect of the appeal.

Damages 53 A number of issues arise on damages. First, her Honour awarded $125,000 for non-economic loss. An issue of construction arises as to whether the primary judge was entitled to find that the plaintiff's degree of permanent impairment exceeded the threshold for non-economic loss damages as provided by s131 of the Motor Accidents Compensation Act 1999 (the MAC Act). 54 The second issue concerns the plaintiff's economic loss and in this respect there is an appeal and cross-appeal. 55 It is accepted by the parties that the award of interest should be set aside. Accordingly, the sum allowed of $4,378.11 should be deducted from the verdict. The construction issue regarding non-economic loss 56 Part 5.3 of the MAC Act deals with non-economic loss damages and contains a threshold in s131 which provides: "No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%." 57 Section 132 provides that if there is dispute as to whether the degree of permanent impairment is sufficient to qualify for an award of non-economic loss, the plaintiff may be assessed by medical assessors under Pt 3.4 of the Act. This is what occurred. 58 Section 133 is important to set out in full. It provides:- "(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) MAA Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2)(b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury." 59 MAA Medical Guidelines have been issued so s 133(2)(a) applies and not s133(2)(b) or s133(3). The relevant Guidelines are said to be the March 2000 ones and are included in the Orange Appeal Book at 60. Paragraph 1.28 mirrors s133 of the Act and provides: "In assessing the degree of permanent impairment for the purposes of the Motor Accidents Compensation Act (1999), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury." 60 It follows that the same restriction applies whether the assessment is in accordance with s133(2)(a) or s133(2)(b). 61 Her Honour accepted the plaintiff's submission that it was permissible to combine the assessment of the plaintiff's physical disabilities (the combined certificate of Dr Carroll and Dr Lorentz assessing head injury, hearing loss and vestibular impairment at not greater than 10%) with Dr Lovell's assessment of permanent impairment in respect to psychiatric/psychological injury of 4-10%. 62 Thus her Honour accepted that these assessments could be combined to produce a value of 14% which exceeded the 10% threshold in s131, (see judgment, Red Book 24-25). Her Honour assessed the non-economic loss at $125,000. 63 The appellant submitted that her Honour's construction of the MAC Act is erroneous. Mr Bartlett SC submitted that a proper construction of s133(3) and para 1.28 of the Guidelines prohibits the use of an assessment for psychiatric/psychological injury only being combined with assessments of physical injuries in order to overcome the s131 threshold. Counsel conceded that if the assessment for physical injuries is over 10%, then psychiatric injury may be taken into consideration in the assessment of damages. Similarly, if the psychiatric assessment is over 10%, then physical injuries may be taken into account. 64 Nevertheless, counsel submitted that the provision (s133(3) and para 1.28) make it clear that it was the intention of the legislature to prohibit the combining of physical impairment assessment and psychiatric/psychological impairment assessment in order to satisfy the threshold in s131. 65 If there be any ambiguity in s133 (and 1.28), then it is submitted that a purposive construction should be adopted in accordance with the objects of the MAC Act, see Geaghan v D'Aubert [2002] NSWCA 260, 13 August 2002. 66 On behalf of the respondent Mr Neil submitted that her Honour's construction was correct. He relies on the reference in s131 to the "injury" and not to "injuries". This is indicative, according to the submission, that each injury caused may be assessed individually. This construction is said to be supported by para 1.27 of the Guidelines which relevantly provides: "Where separate percentage impairments (whether regional or whole person) must be combined, in general, these are not simply added together, but must be combined using the Combined Values Table)." 67 Accordingly, s133(3) and para 1.28 permit the combining of the assessment of Dr Lovell (solely in respect of psychiatric injury) with the physical assessment of Drs Carroll and Lorentz. The provision does not allow for there being two separate certificates which may be combined to get over the threshold, it merely prevents the combination of physical and psychological injuries in the one certificate or assessment. 68 In my opinion, the appellant's construction is the correct one. The provision in para 1.28 (and the identical provision in s133(3)), means that unless the degree of permanent impairment is to be made solely with respect to psychiatric or psychological injury, then such injury cannot be taken into account on the assessment of the degree of permanent impairment. This does not mean that if the physical impairment exceeds 10% (and therefore the threshold) that a psychiatric/psychological injury certificate of whatever percentage cannot be taken into consideration in the assessment of non-economic loss. What it does mean, however, is that the psychiatric/psychological certificate cannot be used in combination with a physical certificate in order to get over the threshold. 69 If it be considered that there is an ambiguity in the relevant provision, it is plain that a purposive construction in accordance with the objects of the MAC Act should be adopted. See in particular the objects in ss5(1)(e), 5(2)(a) and 5(2)(b) and s6 of the Act. 70 In addition, s135 of the MAC Act enables a Court to have regard to information published by the Authority, although a Court not bound to act upon it. In this regard, the appellant points to a statement at page 8 of the MAAS Bulletin of March 2002 that according to s133(3) physical and psychological impairments cannot be added together to get over the threshold. Mr Bartlett also directs attention to case studies in the MAA Impairment Case Studies publication of October 2000, in particular cases 42, 50 and 56 are said to be illustrative. Mr Neil contends that if these publications are wrong on the construction issue, then the Court should not have regard to them. 71 If it be necessary, s34 of the Interpretation Act 1987 permits reference to the second reading speech. This reads in part: "I want to refer to a few of the issues that the Opposition has raised and to reply to the amendments it has moved. First of all, the 10 per cent permanent impairment guideline provides an objective threshold for non-economic loss damages under the scheme to ensure that the scheme is less subjective and that premiums are reduced but at the same time to ensure that people who are seriously injured in motor vehicle accidents are adequately compensated for those injuries. The examples that the Opposition provided in the Legislative Council included an assertion that this threshold would exclude a woman, for example, who suffered from the loss of both breasts. That is not correct. That would easily meet the threshold. So would a child who is badly burned. There is no question they will be excluded from the threshold, as a letter that I will read makes clear. It should be clear also that the non-economic loss damages are the only damages to which the threshold will apply. The threshold does not apply to damages for economic loss, medical treatment or other expenses relating to a motor vehicle accident. The threshold has also been amended so that psychological and psychiatric damages will be taken into account. However, they cannot be aggregated with physical injuries to overcome the threshold. A mother who suffers a serious psychological reaction on seeing her five-year-old child killed will be compensated under this bill." 72 The intention of the legislature is plainly that psychological/psychiatric impairment cannot be aggregated with physical injuries to overcome the threshold for the entitlement to non-economic loss. It follows in my opinion that the plaintiff is not entitled to an award for non-economic loss and the verdict must be adjusted to deduct the damages awarded under this head.

Economic Loss 73 In calculating the plaintiff's economic loss her Honour adopted a net weekly income of $692. This is disputed by the defendant. Mr Bartlett submitted that the appropriate measure of the plaintiff's pre-injury earning capacity is $400 net per week. He relies in particular on two exhibits, Ex W at Blue 202-204 and the plaintiff's immediate pre-accident tax return (Blue 116-123). This revealed an income from the Department of Education and Training of $24,496.00 gross. 74 Her Honour said that the maximum amount that the plaintiff earned from the Department was $1,820 gross per fortnight and his claim for economic loss was calculated on an income of $692 net per week. However, it is not a figure which is borne out by the evidence, especially the 1999 taxation return and the answer to particulars in Ex W. This points to a lower figure of $400 net per week. 75 In so concluding, it should also be seen that her Honour was entitled to reject the plaintiff's claim that he would have been in permanent as opposed to casual employment with the Department. The importance of this is in part to the cross-appeal because her Honour calculated economic loss on the basis of 39 weeks work per year (as a casual) as opposed to 52 weeks per year (as a permanent). 76 In my opinion, her Honour was entitled to conclude that the permanent full-time employment case was not made out. As she said, it did not accord with the evidence that "at best his casual employment with the Department of Education was not continuous and did not pay during school vacations". 77 Her Honour noted that the plaintiff's claim to have been offered a permanent appointment was not supported by documentary evidence. The cross-appeal should therefore be dismissed. 78 Returning to the appeal, her Honour found that the plaintiff had a residual earning capacity of at least $250 per week. The judge gave considered reasons why she had so concluded. Up until the close of submissions the defendant did not dispute the finding. However, Mr Neil ultimately put a fallback position should $400 net per week be adopted by the Court as the plaintiff's pre-injury earning capacity. This submission concluded that the plaintiff's residual earning capacity was $150 net per week, and not $250 net per week as found by her Honour. 79 Mr Neil's written submission on this point was sent to the Court, with our leave, on 5 March 2004 after the hearing concluded. In paragraphs 2 and 3 it makes an arithmetic calculation of the percentage which $250 bears to $700 (rounding up $692 net per week). This is roughly 35% and is then applied to an assumed pre-injury net earning capacity of $400 per week producing $150 per week. The submission concludes therefore that the loss is $250 net per week. 80 I have to say that I do not understand this submission. There is no reason to interfere with her Honour's conclusion that the plaintiff had a residual earning capacity of $250 per week. This was a finding open on the evidence. Once it is accepted that $400 net per week and not $693 is the appropriate measure of the plaintiff's pre-injury working capacity, it follows that his loss is $150 net per week. 81 According to the defendant's submission this produces a future economic loss of $70,763 which should be substituted for her Honour's finding of $156,384.75. 82 As a result, the present day value of the future superannuation loss ought be reduced to $9,000. 83 As a consequence the verdict that the plaintiff received must be set aside and recalculated with the deletion of non-economic loss and the adjustment of economic loss and interest. The parties should bring in short minutes of order within 3 days reflecting the new damages. 84 Although the defendant/appellant lost on liability, it succeeded on damages and the appropriate order is that each party pay his own costs of the appeal. The cross-appeal should be dismissed with costs. **********

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