OZPINAR v. ASSAILY [2001] NSWCA 23

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40739/99 DC 4879/97 SHELLER JA POWELL JA ROLFE AJA

JUDGMENT 1 POWELL JA: There is listed before the Court today what purports to be an appeal as of right from a judgment delivered and verdict found in the District Court by Naughton DCJ on 30 August 1999. 2 In the proceedings the Appellant, who was the plaintiff below, sought to recover damages in respect of what she claimed were injuries received in a motor vehicle accident, in which she was involved on 23 August 1994 - those injuries were claimed to be damage to the L4/5 disc in her back and low lumbar strain. 3 At the time of the accident the Appellant was 28 years or age or thereabouts. She was a married woman who had two comparatively young children, one aged 7 years, and the other aged 5 years. 4 The Appellant, who was a Turkish national, had come to this country in 1985 with her husband, whom she had married in 1985. Neither when living in Turkey nor during her time in Australia had the Appellant ever worked outside the home or sought any form of paid employment. 5 Although liability was admitted there was a significant dispute at trial as to the manner in which the motor vehicle accident occurred, the Appellant claiming that her car was struck from behind at a time when she was driving at speeds which have been variously estimated by her as being between 40 kph to 60 kph, and the Respondent claiming that, at the point of impact, the Appellant's vehicle was travelling at only about 10 kph. 6 The collision was reported by the Appellant to the Auburn Police Station on the day of the accident. In the report (CAB 57) which was tendered and became Exhibit 2 at trial, the Appellant is recorded as having told the police officer to whom she reported the accident that no person had been killed or injured, that no damage in excess of $500 had been sustained by the vehicles involved in the collision, and that no vehicle involved in the collision had been towed away. 7 Although the Appellant gave varying, and conflicting, versions of what had occurred to the medical practitioners by whom she was from time to time examined the effect of the evidence tendered at trial suggests that this collision involved only a very slight impact - although the Appellant claimed that the boot lid had been stove in, the Respondent said that there was but a minor dent in the boot lid which lid - as the Appellant was to admit (CAB 9) - the Respondent replaced himself. 8 The medical practitioners who had examined the Appellant gave various estimates as to the disability which they said she suffered. Dr. Mahoney, who saw her in 1995 and 1998, estimated that she had suffered an impairment of about 15 per cent to her back; Dr. Evans, whom she saw later, estimated 20 per cent impairment; Dr. Conrad, who also saw her, estimated 25 per cent; and Dr. Ellis estimated 20 per cent. Dr. Bryant, who examined the Appellant on behalf of the Respondent, was of the opinion that she had suffered no permanent impairment of her back and no permanent loss of the efficient use of either of her lower limbs, as the symptoms of which she complained were not confirmed by abnormality on examination. 9 In addition to seeking to recover damages for non-economic loss, the Appellant at trial sought to make out a case for future economic loss, the basis for that case being her assertion that she had intended that when her children - who by the time of the hearing had grown to three in number - were all at school, she would seek to obtain paid employment. The matter was left with no further elaboration than that - no evidence was tendered as to the type of work that the Appellant might be able to obtain or of her likely future earnings, a fact of some relevance bearing in mind that she had no experience in the work force, and that her command of the English language appears to have been very poor - at times when she saw medical practitioners she was accompanied by an interpreter, and she gave her evidence through an interpreter at the trial. 10 In the event, Naughton DCJ took the view that the Appellant was a very unsatisfactory witness, and that her evidence attracted very little credence whatsoever. He accepted the view expressed by Dr. Bryant and brought in a verdict of about $2,500.00 covering out of pockets - no amount was allowed for non-economic loss as the terms of s.79(1) of the Motor Accidents Act 1988 as they were at the time of the accident disentitled her to damages for non-economic loss since she was not significantly disabled at the time of trial (Roberts v. White) Court of Appeal 12 February 1999 (unreported) and, there being no real evidence upon which he could make any estimate of future economic loss, his Honour disallowed that claim. 11 In purported compliance with the provisions of SCR Pt. 51 r 8, at the time of the filing of the Notice of Appeal there was filed an Affidavit sworn on 8 February 2000 by the Appellant's solicitor, the relevant paragraphs of which affidavit are as follows: "3. In the accident the Appellant suffered a significant back injury, involving a discogenic lesion at the L4/5 level. In these circumstances it is the plaintiff's contention that the range for non-economic loss is in the order of 25 per cent to 30 per cent of a worse possible case. 30% represents a net figure of $80,900. 4. The Appellant's past out of pocket expenses are $2,601.50, and the plaintiff's treating orthopaedic surgeon, Dr. Mahoney, in a report dated 9 February 1998 annexed hereto and marked with the letter 'A', indicates that he considered that a further $8,000 of treatment will be required. 5. While the Plaintiff was not working as at the date of the accident, her evidence at the trial was that it was her intention, had it not been for her injuries, that when her children were all at school, to enter the work force. The claim for loss of earning capacity is for this reason a significant one since the plaintiff is only 34 years of age and it precluded by her injuries from many forms of manual employment, the type of employment for which she would have otherwise been suited. It is the plaintiff's contention of an appropriate method of calculating her loss of earning capacity would be at the rate of $150 per week by 31 years, on the 5 per cent discount table, discounted a further 15 per cent for consequent contingencies, which amounts to $106,309.50."

12 One observes, first, that, even if one accepted the views of her medical practitioners, the evidence in the Appeal Books would not, in my view, justify finding that the Appellant's injuries represented 30 per cent of a most extreme case - that being the relevant language of s.79(3) of the Motor Accidents Act 1988; second, that, the sum of $80,900 is a calculation made on the basis of figures contained in an Order published after the trial before Naughton DCJ; and, third, that, while it is true that the amount of $106,300.50 claimed for future economic loss represents a figure calculated in the manner set out in paragraph 5 of the Appellant's solicitor's affidavit, there is no evidentiary basis upon which one can found that calculation. 13 The object sought to be achieved the provisions contained in s.127(2) of the District Court Act 1973, and the like provisions in s.101(2)(r) of the Supreme Court Act 1970, is to discourage small appeals where the amount in issue does not justify the cost delay and inconvenience of the appeal process and to ensure that the Court is not burdened by appeals which do not warrant the Court's time. In an endeavour to ensure that the parties appreciate that that is so SCR Pt 51 r 8 provides: "Where an appeal to the Court of Appeal is restricted by reference to any Act to a specified amount or value the appellant shall, within the time limited for instituting the appeal, file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply."

14 As is apparent, the Affidavit must disclose facts which show that an appeal lies as of right. It is not a sufficient compliance with the rule if the deponent merely states a belief that the relevant amount is involved (see Anthony v. Maglovenos) Court of Appeal 11 July 1978 (unreported). If the affidavit does not comply then it is open for the other side to apply to strike out the appeal as incompetent (SCR Pt 51 r 25). 15 It is my view that what is contained in the Appellant's solicitor's affidavit is quite inadequate to demonstrate that this is a case in which an appeal lies as of right, and that being so I propose that the appeal be dismissed as incompetent. I would wish to hear the parties as to the costs of the appeal. 16 SHELLER JA: I agree. 17 ROLFE AJA: I also agree. 18 SHELLER JA: What do you say about costs, Mr. Bateman? 19 BATEMAN: I'd ask for costs, your Honour. 20 SHELLER JA: But why? You made no application to have this struck out as incompetent. 21 BATEMAN: That's so. I can say that for my own part I didn't know whether the plaintiff had obtained leave or not obtained leave, but it's something that I've never discussed with Mr. Lidden until this morning. I didn't know. 22 ROLFE AJA: Well there wouldn't have been any difficulty in those instructing you asking those instructing Mr. Lidden if that had happened. 23 BATEMAN: There would have been no difficulty. 24 SHELLER JA: Is there anything further you wish to say? 25 BATEMAN: No. 26 SHELLER JA: Mr. Lidden, the Court is inclined to make no order as to costs. Is there anything you wish to say? 27 LIDDEN: No. 28 SHELLER JA: Well the Order of the Court will be as proposed by Powell JA; there will be no order as to the costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.