Mimica v Multiplex Constructions Pty Ltd

Ivan Mimica (Appellant) PARTIES: Multiplex Constructions Pty Ltd (Respondent)

M J Cranitch SC/A G Jamieson (Appellant) COUNSEL: D B McGovern SC/S P W Glascott (Respondent)

Carters Law Firm (Appellant) SOLICITORS: Phillips Fox (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40585/03

MASON P HANDLEY JA McCOLL JA

3 MAY 2005 MIMICA v MULTIPLEX CONSTRUCTIONS PTY LTD CATCHWORDS

NEGLIGENCE - appeal - no question of principle FACTS

The appellant sued the respondent in the District Court for damages. While working at a construction site, the appellant was struck by a forklift while walking up a ramp. The District Court judge awarded damages for past economic loss, but dismissed his claim for continuing economic loss and non-economic loss.

The appellant appealed alleging that the judge failed to give sufficient reasons. He also sought leave to enlarge the grounds of appeal, alleging that the judge failed to consider the psychiatric evidence and evidence regarding the appellant's cervical injuries. HELD : (1) Leave to amend the grounds of appeal granted; (2) The judge adequately considered the evidence and gave sufficient reasons for her findings. ORDERS

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40585/03

MASON P HANDLEY JA McCOLL JA

3 MAY 2005 MIMICA v MULTIPLEX CONSTRUCTIONS PTY LTD JUDGMENT 1 MASON P : The appellant is dissatisfied with the damages he was awarded in the District Court. In the circumstances, he seeks a new trial limited to damages. 2 The trial judge (Gamble ADCJ) found that the appellant was injured in consequence of the respondent's negligence. 3 It is now common ground that the judge was obliged to assess damages by reference to Pt 6 of the Motor Accidents Act 1988 , as she did. Accordingly, grounds 1 and 2 of the original notice of appeal are no longer pressed. 4 The damages awarded were $32,786.65, a sum that included $30,000 for past economic loss. The judge rejected the claim for continuing economic loss. She also dismissed the claim for damages for non-economic loss, holding that the appellant had failed to establish that his ability to lead a normal life had been or was in the near future likely to be significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident (cf s79A(3)). 5 The original notice of appeal makes general complaint about the adequacy of the award in grounds 3 and 4. But the only particulars assigned were in pars 5, 6 and 7 which are generally confined to absence of stated reasons in the judgment below. 6 Towards the conclusion of the hearing the Court ruled that these grounds and the written submissions filed in support were to be construed as raising no more than complaint as to the adequacy of the reasons exposed in the judgment. 7 This ruling prompted a late application to enlarge the grounds of appeal to which later reference will be made.

The accident 8 The appellant was born in Croatia in 1951. He came to Australia in 1969. His fair though limited command of English would have a bearing upon the range of employment opportunities open to him if, as he contends, he is permanently unfit to return to his pre-accident employment. 9 The appellant was working as a formwork carpenter on a Multiplex site in Alexandria on 3 March 1998. He was struck and injured by a forklift carrying a load that was being driven down a ramp. 10 The immediate injuries suffered in the accident, as stated by the appellant and corroborated in the Ambulance Service report, were bleeding from the head, bruising to the upper parts of both legs, and a painful left wrist later diagnosed to have been broken. 11 Eyewitnesses gave evidence that there was no loss of consciousness. The ambulance report does not suggest otherwise, indicating a score for the Glasgow Coma Scale showing that the appellant was quite alert by the time he was picked up to be taken to hospital. 12 The appellant was taken to the Prince of Wales Hospital where he was found to have a fractured left wrist with small abrasions to both thighs and a lacerated scalp. His wrist was put in plaster and he was discharged from the emergency department on the same day, after refusing to have sutures in the scalp lacerations. An X-ray of his skull showed no disorder. 13 His next medical attention was provided by Dr Stephen Meagher of the Burwood Medical Centre on 7 March 1998. Dr Meagher next saw him on 14 March, then on 7 further occasions up to 14 May 1998. Dr Meagher's report was tendered without cross-examination. The history provided by the appellant as recorded in this report assumes some importance in relation to the issue of significant long-term disability.

Overview of trial 14 Evidence was given by the appellant and three workmates who assisted him immediately after the accident or whose evidence was relevant to the computation of the economic loss claim. The appellant also called Ms Jelcic who had been his domestic partner. 15 A large bundle of medical reports was tendered. As often, there were differences of view including as between doctors called for the same side. 16 The only doctors who gave oral evidence were Dr Mahony, an orthopaedic surgeon, who was called by the plaintiff and Associate Professor Oakeshott, a general surgeon and consultant in rehabilitation medicine, who was called by the defendant. 17 The main issue on damages fought at trial was whether the appellant's injuries extended beyond the broken left wrist (which healed within a few months) and the superficial cuts and bruises to head and knees recorded in the ambulance report and the hospital admission records. 18 The appellant alleged that the accident produced significant and continuing soft tissue injury involving cervical strain. He also gave evidence of musculo-ligamentous strain of the lumbar spine caused by the accident, alternatively contending that the accident had aggravated a degenerative condition in the lumbar spine. These injuries were said to have produced headaches, bouts of dizziness and insomnia and to have led to major psychiatric problems in the nature of depression. The accident changed the appellant from a dedicated and cheerful worker to one who was incapable of returning to his pre-accident job as a carpenter. 19 If established, these long term disabilities would have generated an entitlement to non-economic damages well above the s79A(3) threshold and an entitlement to substantial damages for future economic loss. The appellant gave evidence that the situation had improved to a degree by the time of the trial, but it remained his case (supported by some of the doctors, most notably Dr Mahony) that his disabilities stemming from the accident were permanent. 20 The appellant's evidence was corroborated to a degree by his former domestic partner Ms Jelcic. His orthopaedic case was particularly supported by Dr Mahony, the orthopaedic surgeon to whom he was referred by his general practitioner in June 1998 and who treated him over the ensuing years. The principal support for his claim to have suffered psychiatric injury came from of Dr Paul Teychenne, a neurologist. 21 The respondent's case was that the appellant had not sustained any injury to his neck or back. His symptoms were unsupported by X-ray, MRI or any other "objective" evidence and were feigned. The appellant's credibility as a medical historian and as a witness were strongly attacked in cross-examination and closing submissions at trial. 22 The respondent placed particular reliance upon the absence of early complaint about pain in the neck or back. There was no record of such complaint in the ambulance report, the hospital records of 3 March 1998 that record "Cervical spine - full painless range of movement" . Nor is there any such claim in the Compensation Claim form signed by the appellant on 12 March 1998. 23 On the other hand, Dr Meagher observed "restricted range of motion in the cervical spine" on 7 March 1998. By 14 March the appellant was complaining to his general practitioner about persisting neck pain (Blue 33). 24 Issue was joined at trial as to the veracity of the appellant's explanation for the incomplete record of injuries in the Compensation Claim form (a document prepared by others for the appellant to sign). 25 The respondent relied upon the absence of medical evidence to support the appellant's history of neck and lower back pain, contending that the appellant had shown himself to be an unsatisfactory historian to some of the doctors and in his evidence in the witness box. There was also medical evidence as to the earliness within which neck pain should manifest itself if it was the genuine product of a soft-tissue injury. 26 The respondent also relied on the opinions of doctors who examined the appellant and who concluded that his symptoms were exaggerated or feigned. Particular reliance was placed on the evidence of Dr Oakeshott who saw the appellant in January 2001. According to that doctor's report, the appellant initially demonstrated a full range of pain-free movements. Then, on examination he refused to move his neck, refused to squat, refused to stand on his toes and refused to jog on the spot or elevate his left arm above shoulder height. Dr Oakeshott concluded that the appellant's complaints were untenable from any logical, physiological or anatomical point of view. He was unable to identify any objective clinical evidence of any physical injury that would prevent the appellant from walking. 27 The respondent also placed reliance on the report of Dr Somerville, a consultant neurologist who observed inconsistencies in the symptoms reported (Blue 400). 28 The respondent sought to meet the appellant's case head-on at trial. There was however something in the nature of a fall-back position involving the submission that the accident had merely exacerbated an underlying condition. This in itself did not absolve the respondent, but it raised issues of disentanglement on which the respondent would have borne an evidentiary onus.

Adequacy of reasons 29 The written submissions contend that the judgment does not provide any adequate reasons for apparently not accepting the evidence of the appellant, his medical case and his witnesses. Some details are provided, but unfortunately they misquote or misstate the findings in some respects. 30 I reject the grounds of appeal contending for a new trial based on inadequacy of reasons. I shall endeavour to summarise her Honour's reasons, adverting where appropriate to particular criticisms raised by the appellant. 31 The findings as to injuries and damages span pages 7-22 of her Honour's reasons. They contain helpful cross-references to the evidence. 32 The reasons commence with a summary of the injuries observed by the ambulance officers and treated at the Prince of Wales Hospital on the day of the accident, 3 March 1998. Included in the judge's narrative is reference to the appellant being conscious on arrival at hospital and the x-ray of his skull that showed no disorder. 33 The judge records that the appellant went to the Burwood Medical Centre (Dr Meagher) on 4 and 14 March 1998. By the second visit he was complaining of persisting neck pain which was treated with Voltaren tablets, physiotherapy and a collar and cuff after an x-ray showed minor degenerative changes. The judge records that at each of seven successive visits to Dr Meagher the appellant complained of persisting headaches, neck, shoulder and arm pain and lumbar pain radiating to the neck. The results of a CT scan of the cervical spine and an x-ray and ultrasound of the left shoulder were normal, apart from some tendonitis found in the left shoulder. Her Honour records that when Dr Meagher referred the appellant to Dr Mahony the general practitioner had concluded that the appellant had soft tissue injuries to the neck and lower back. 34 An undisputed MRI scan of the lumbar spine in November 1998 revealed what Dr Mahony described as confirmation of "aggravated degenerative change in the lumbosacral discs" (J10). The critical issue was whether this condition was accident-related, and if so to what extent. 35 It is convenient to move across to the dispositive findings towards the end of the judgment below (J18-21): Dr Mahony's report is the most sympathetic to Mr Mimica's case. He says Mr Mimica is permanently unfit for work due in particular to cervical strain associated with early degenerative change, but the way in which Dr Mahony expresses his opinion gives cause for concern. His opinion depends upon acceptance of Mr Mimica's history of sustaining a head injury, yet there is no evidence of Mr Mimica having sustained a head injury, beyond lacerations of his scalp he declined to have sutured. The remainder of Dr Mahony's opinion describes Mr Mimica as having 'developed symptoms referable to a cervical strain in association with early degenerative changes' (Ex F, 19/9/01, p3). In evidence Dr Mahony agreed that by this he meant 'early degenerative changes [that] were constitutional in origin' (T165.24-26). He was then asked: "And what you believed his position to be was that the underlying degenerative change had been made symptomful by reason of some incident of trauma, is that right?' To this he answered, 'Well that's correct, that's consistent with the history I got' (T 165.28-32), but he agreed that an underlying degenerative condition might become symptomful 'at a particular age … absent any trauma at all' (T 166.20-24), although this did not necessarily occur (T166.42-45). Dr Mahony said he thought Mr Mimica's complaints were 'consistent with the nature of his injuries' (T161.10-12) but he agreed as well that his diagnosis depended on the veracity of the patient' (T168.29-30; T172.56-58 and T173.1-9). Dr Mahony was able to say of Mr Mimica that he had been consistent in his presentation (T163.36-38) and had 'never struck me as being, you know, the typical person who is exaggerating' (T163.27-28), but there was evidence in the cross-examination showing that some of the history he had may have been inaccurate (T168.57-58; T169.1-5). Dr Mahony believed that Mr Mimica suffered immediate injury to his neck and back whereas the evidence suggests that the first report of neck pain probably was made on Mr Mimica's second visit to Dr Meagher on 14 March 1998 and Dr Meagher does not report back pain (T138.12-39). Dr Mahony's understanding of Mr Mimica's work history was also shown to be inaccurate (T173.35-58; T174.1-17; T175.1-25).

The only limit Dr Mahony placed on Mr Mimica's ability to work was that he should not return to building or other heavy work (T161.14-58; T162.37; T185.33-58 and T186.1-43). There is some evidence that Mr Mimica tried to return to work in 1999, but the evidence is confused, mainly because Mr Mimica seemed to be unaware that his old employer SJP went into liquidation in 1999 (T58.49-58 and T59).

Medical reports obtained by the Defendant either dismiss his claims (Dr Oakeshott and Prof Marsden) or suggest the disabilities are due to early degenerative change (Dr Haynes, Dr Oates and Prof Marsden). There is no persuasive evidence to support Mr Mimica's claims of neurological deficit. Dr Teychenne's report is inconsistent with the known circumstances of the accident and Dr Somerville reported inconsistencies between the reported complaints and his physical examination. Although Dr Patrick said he was depressed and 'effectively incapacitated for work' his reports did not provide clinical evidence of Mr Mimica's complaints other than some aggravation of pre-existing degenerative change. The psychiatric reports were unpersuasive as well. Both Dr Robertson and Dr Hordern reported some evidence of post traumatic stress disorder, depression and pain disorder but nothing so severe as to prevent him returning to some form of employment. Dr Revai was unable to find any outward signs of anxiety or depression. Dr Abu Arab found Mr Mimica to suffer from serious depression, but he thought Mr Mimica would benefit from counselling and pain management.

I agree with the Defendant's submission that the evidence of disability is mixed in that neither the reports obtained by the Defendant nor those obtained by the Plaintiff make it plain that Mr Mimica suffers from any serious disability identified as attributable to the accident of 3 March 1998. Having reviewed all the medical evidence I am unable to find that Mr Mimica suffers any permanent disability as a result of the accident of 3 March 1998. The evidence is equivocal whether he has any significant continuing physical complaints, and if he does, whether they are attributable to injuries sustained in the accident or to the onset of degenerative change. Mr Mimica has failed to satisfy me on either matter. The evidence Mr Mimica gave of his depression and other psychological harm was unpersuasive, consisting principally of expressions of lack of enthusiasm for previous recreational interests. His other evidence, particularly in cross-examination, suggests that if he has suffered anxiety it may relate to events occurring within his family including a change in partners and the illness and death of his mother in Croatia. Dr Abu Arab's report is the most sympathetic to Mr Mimica's claims, but it is also the least firmly grounded in evidence to support the views contained in it.

It is clear that Mr Mimica sustained injuries in the accident of 3 March 1998 which resulted in a temporary incapacity to work, however, there is insufficient evidence to satisfy me that he has suffered injuries of such severity as to fall within s79A(3) of the Motor Accidents Act 1988 . As I am not satisfied that the injuries sustained significantly impaired his ability to lead a normal life for a period of not less than 12 months I am unable to make an award of damages for past economic loss. Dr Meagher was prepared to certify Mr Mimica was unfit for work until 5 June 1998, for a neck and left should injury and referred him to Dr Mahony (Ex 8, Workcover certificates). Dr Mahony then certified him unfit to 28 July 1998 for an arms, neck and back condition (Ex f). There are certificates from Dr Pukanic certifying him unfit for work and describing the treatment he is receiving as physiotherapy, psychological counselling and counselling for pain management, through to 26 June 1999 (Ex 8) but these are inconsistent with Mr Mimica's evidence that he did not attend physiotherapy after the first couple of consultations because he did not find it helpful (T50.7-10 and 19). He said he chose to have massage treatment instead but produced no records in support (T50.43-45).

Mr Mimica was referred for a battery of tests during 1998 and one more in 1999 (Dr Teychenne's referral for an MRI in September 1999), but then the investigations of his condition stop. Under these circumstances, and in view of the unreliability of Mr Mimica's oral evidence, I believe there should be an award for economic loss for the period 3 March 1998 - 31 December 1998, as a buffer. 36 The appellant does not cavil with the detail of this reasoning, nor is it suggested that the evidence cited is misrepresented or misunderstood in any way. 37 The judge correctly recognised that Dr Mahony's report was the most sympathetic to the appellant's case and that that case depended very substantially upon it. Dr Mahony's evidence is summarised in detail earlier in the reasons and also at the commencement of the passage quoted (J9-10, 18-19). Her Honour was well aware that this doctor was firmly of the view that the accident had significantly aggravated degenerative changes in the cervical and lumbar spine. 38 The lengthy passage I have set out discloses the judge's (correct) understanding that the evidence of Drs Mahony and Teychenne were critical aspects of the appellant's case at trial. Her Honour observed that there was a head-on conflict at trial as to the appellant's credibility and that the medical opinions were essentially dependent upon the accuracy of that history. The injuries reported on the day of the accident did not include or point to the long term problems now relied upon. There was no "objective" evidence in the form of x-rays or CT scans that corroborated the appellant's account. Dr Mahony's opinion conceded the presence of "early degenerative changes [that] were constitutional in origin" . Dr Mahony's concession that his diagnosis depended on the veracity of the patient was also most significant. 39 In the passage quoted and earlier in her judgment, the primary judge made findings adverse to the appellant's veracity and the consistency of the case he was advancing. These included instances showing that particular aspects of the history given to Dr Mahony may have been inaccurate (J19), referring to the delayed report of neck pain on 14 March 1998 and the absence of any early report of back pain. 40 Paragraph 19 of the appellant's written submissions signed by junior counsel states that at p8.5 of the judgment "the only comment by Her Honour as to the Appellant's credit was that it was ' less than satisfactory' ." It was further submitted (par 20) that at no part of the judgment did her Honour state why the appellant was not to be accepted as to his complaints. 41 Both of these submissions are quite inaccurate. So too are other submissions as to absence of reasons, failing as they do to construe the judgment as a whole. 42 The passage at p8.5 describes a particular explanation as "less than satisfactory" , a comment that was well open to her Honour. The passage in context reads: In cross examination, Mr McGovern put it to Mr Mimica that he had made no complaint of back pain, or of dizziness, poor memory or balance problems in early consultations with his general practitioner, Dr Stephen Meagher (T140.25-29; Defendant's submissions, para 32). Mr Mimica's explanation, that he did not remember, was less than satisfactory (T140.28-29), as was his explanation of the absence of x-rays of his lower and middle back at this time. 43 Several reasons were offered in the judgment for the non-acceptance of the appellant as to his complaints. Many are contained in the lengthy passage at J18-21 already set out. These included:

• qualifications and concessions in Dr Mahony's testimony (J18);

• the appellant's delay in making certain complaints in a context where medical evidence indicated that the symptom (if genuine) would have manifested itself at the time (J8-9);

• the appellant made no complaint about neck or back pain in a compensation claim form he signed on 12 March 1998. The appellant was not the author of the report, but the judge was clearly entitled to have regard to this document as a matter touching the critical issue. She refers to it in this context at J8.

• reference to the mechanics of the accidents, the symptoms on first presentation and the absence of corroboration from CT scan or x-ray;

• reference to reports of two occupational physicians that the appellant had suffered no permanent disabilities in the accident (J12);

• acceptance of the evidence of the respondent's doctors, especially Dr Oakeshott, about strange behaviour during medical examination that was capable of supporting inferences that the appellant feared to cooperate and that his symptoms were feigned (J10, 12). There was particular material in the evidence of Dr Oakeshott and Dr Oates that the appellant was not being genuine as to his medical presentation (J10, 12);

• evidence of "constitutional" orthopaedic and psychological conditions, stresses in family life and indicators of degenerative changes (J9, 11, 14, 18-20). Dr Mahoney accepted in cross-examination that once there is evidence of degenerative change, diagnosis of the extent to which it has been symptomatic depends entirely on the veracity of the patient (J11). 44 Another matter going significantly to the appellant's discredit, as recorded by the judge, was his assertion to Dr Teychenne and other psychiatrists that he had possibly been knocked unconscious in the accident and that he was "amnesic for 2-3 minutes" (Dr Teychenne at Blue 88, 94, 98) There was no support for this in the medical records of 3 March 1998. The observations of the eyewitness Mr Moray as noted by her Honour at J14 were to the contrary. To similar effect is the reference at J18 to the appellant having given Dr Mahoney a history of sustaining a head injury, implying something more fundamental than the superficial head wounds recorded on the day of the accident.

Other grounds of appeal 45 I have already indicated that the original grounds of appeal were either expressed as bland generalities or confined themselves to complaint as to absence of reasons. 46 The written submissions also concentrated on absence of reasons. There were nevertheless isolated complaints as to the substance of the primary judge's reasoning process (see pars 15-16, 31-34, 37, 39). 47 The oral submissions in this Court by senior counsel for the appellant were similar in nature. The overwhelming focus was an attack based on failure to state reasons, but this was interspersed with criticisms of the outcome of the trial, some of them endeavouring to grapple with the difficulties imposed by cases such as Fox v Percy (2003) 214 CLR 118. 48 Senior counsel for the respondent generally confined his defence to the issue of absence of reasons. It was during submissions in reply that the Court ruled as to the scope of the grounds of appeal (above). Since however there had been some joinder of issue on the broader questions, the Court indicated that the appellant might have leave to file a notice of motion seeking to clarify and/or enlarge the grounds of appeal. In so doing, the Court offered no assurance to the appellant that such leave would be forthcoming. Speaking for myself, I envisaged that much would depend on whether the appellant would be seeking to go beyond matters already clearly raised in his written and oral submissions. 49 The appellant filed a motion to enlarge the grounds of appeal and the parties exchanged written submissions as to the two additional grounds sought to be relied upon, namely:

6. Her Honour failed to consider or address the psychiatric evidence, particularly as to its effect on the threshold issues under Section 79A of the Motor Accidents Act.

7. Her Honour failed to adequately address or consider the evidence regarding the plaintiff's cervical injuries particularly the evidence of the plaintiff's complaint to his treating doctor 4 days after the accident having regard to the concessions made by Dr Oakshot. 50 The respondent opposed the application to amend the notice of appeal because of (a) the lack of specificity in the new grounds and (b) the grounds raised issues that have not been ventilated at trial. 51 I would grant leave to amend. The recently-filed submissions refer to the matters relied upon. Indeed, they largely restate matters debated in the oral submissions at the hearing of the appeal. 52 The respondent's second objection invokes the well-known principles in Coulton v Holcombe (1986) 162 CLR 1. I propose to ensure that the respondent's rights in this regard are protected, but will do so in the context of addressing the two new grounds of appeal. 53 Each new ground charges the primary judge with having failed "to consider or address" (adequately) evidence on particular topics. This language continues the tradition of the earlier grounds in sliding opaquely between a complaint as to absence of reasons and a complaint on substantive issues as on an appeal by way of rehearing. 54 As to ground 6, it is contended that the judge failed to consider or address the psychiatric evidence, particularly as regards the threshold issues under s79A. This point was agitated at the hearing in this Court (see eg CA tr p12). 55 The appellant gave evidence about symptoms and treatment for depression (eg Black 45-6, 56). His evidence barely rose beyond expressions of lack of enthusiasm for previous recreational interests, as the trial judge noted (J20). In this regard it more closely resembled the symptomatology presented to Dr Revai. Dr Revai produced a medico-legal report that was tendered by the respondent that basically rejected a claim of psychiatric disorder (Blue 5). 56 The submission that the judge failed to address the multifarious claims of psychiatric injury is unsustainable in light of the treatment at J15-16 and J20. I accept that the reasoning in this part of the judgment is sparse, but the judge was no doubt affected by the way the matter had been presented in final addresses (see below). 57 In my view, her Honour was well entitled to conclude that there was no persuasive evidence to support a claim of neurological deficit stemming from the direct physical trauma of the accident. Dr Teychenne had been the only psychiatrist to advance this proposition and his opinion was based on a clearly flawed history of the accident and its immediate sequelae (see above). Two of the other psychiatrists whose reports were tendered by the appellant were also provided with an inaccurate history involving possible unconsciousness (See Dr Robertson at Blue 138 and Dr Hordern at Blue 153). Not all of the psychiatrists were aware that the appellant had part time employment at a radio station after the accident. 58 There was a lot of evidence that the appellant was affected by his continuing neck and back problems (howsoever derived) and about the uncertainties of his future work career and the litigation. His primary psychiatric injury claim (supported by his psychiatrist but rejected by Dr Revai) related to the mental consequences of the pain and discomfort that he alleged were part of his daily life. 59 The psychiatrists whose reports were tendered by one or other of the parties disagreed as to current symptoms, with strong disagreements as to the presence or absence of some form of post-traumatic stress disorder (PTSD). The judge did not overlook this evidence (see J 15-16, 20-21). She was however entitled to view it most sceptically standing as it did upon the shoulders of the credibility of the appellant as an accurate and honest historian of the physical symptoms stemming from the accident. The rejection of the orthopaedic case spelled the doom of the psychiatric case in so far as it had treated the insomnia, depression, memory loss etc as stemming from the accident and its orthopaedic consequences. There had also been evidence suggesting that the appellant was depressed because of his brother's death through serious illness (Black 64). 60 There is a further reason why ground 6 must be rejected. The written submissions filed by way of précis of final address at trial (Black 240ff) confine themselves to claims stemming directly from orthopaedic disabilities. There appears to have been no reliance upon the psychiatric reports beyond the passing reference at Black 241: In addition, the testing carried out referred to by Dr Paul Teychene and set out in the report of 15 June 1999 are relied upon in support of Dr Mahony's opinion. 61 This may very well have contributed to the judge's conclusion to reject the claim for damages relating to depression stemming from the injuries. But whether that be correct or not, the way that the psychiatric case was (not) dealt with in the final submissions leaves me entirely unpersuaded that there was any miscarriage or error as contended in ground 6. 62 New ground 7 is addressed only tangentially in the recent written submissions of the appellant. In this context, the appellant repeats his complaint about the absence of reference to Ms Jelcic's evidence in the reasons of the primary judge. The submission in this regard is as follows: 4. The witness Nada Jelic [sic] gave evidence at p216 of the Black Appeal Book and at point 10 said as follows: "Healthy, very fit. Working on a building he was really strong man and happy everything was perfect." At p219 of the Black Appeal Book, Mrs Jelic said that the Plaintiff was not back to normal (p219.30) within 6 months of the accident and at p222.45, said that in her opinion, the Plaintiff was not normal after 2 years. Also at p222.54, the witness said in relation to the Plaintiff "He's very depressed - and then very often grumpy and moody…". Mrs Jelic was not shown in cross-examination to be unacceptable on any of these areas. Mrs Jelic at p227 gave evidence of the Plaintiff being unable to drive to Katoomba without stopping half way and lying on the back seat of the car (p227-40).

5. The Appellant submits that Mrs Jelic's evidence was called for the following reasons: (a) To show that the Plaintiff was mentally healthy prior to his accident and not so following the accident. (b) The Plaintiff was physically healthy prior to the accident and not so following the accident. (c) That the Plaintiff could not drive long distances following the accident (in cross-examination). 63 It is unfortunate that Ms Jelcic's evidence is not addressed in the judgment under appeal. I have however read the passages of her evidence that are relied upon (Black 216-25). They leave me comfortably satisfied that the judge's omission to refer to the evidence does not indicate a decisive gap in her Honour's decision to reject the appellant's credibility (cf Rosenberg v Percival (2001) 205 CLR 343 at 448[43], 489[166], 505[222-223]). I observe that Ms Jelcic refers to the first complaint concerning the neck and back as having occurred about six weeks after the accident (Black 219). This evidence corroborates the revelation of the MRI scan of the lumbar spine that occurred later in November 1998. It does not, however, add significantly to the appellant's attempts to establish that the accident caused or contributed to genuine on-going disabilities. 64 Returning to the substance of ground 7, the complaint remains primarily if not exclusively one concerned with absence of reasons. Yet the earlier portion of my judgment demonstrates the detail with which the primary judge did address the claim that the appellant suffered soft tissue cervical injury in the accident. The judge was fully seized of the fact that there was a complaint of "restricted range of motion in the cervical spine" when the appellant saw his general practitioner four days after the accident, followed by complaint of "persisting neck pain" a week later (see J 7). This evidence did not however compel acceptance of the significant orthopaedic case advanced at trial. As indicated above, there were many inconsistencies and exaggerations in the appellant's testimony and his presentation to various doctors. 65 Acceptance of the claim that the s79A threshold was passed and that there was ongoing economic loss depended ultimately upon acceptance of the testimony of the appellant himself. The trial judge rejected that aspect of the plaintiff's case. Her reasons were adequately exposed and are effective to preclude appellate overturning in light of the principles in Fox v Percy . 66 The appeal should be dismissed with costs. 67 HANDLEY JA : I agree with Mason P. 68 McCOLL JA : I agree with Mason P. **********

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