Palma v Nominal Defendant

Court of Appeal (NSW)|2016-02-12|Before: Gleeson JA, Simpson JA, Adamson J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment - EX TEMPORE

GLEESON JA: I agree with Adamson J.
SIMPSON JA: I also agree.
ADAMSON J: Nestor Palma, the appellant, appeals pursuant to s 127 of the District Court Act 1973 (NSW) against the assessment of damages by Gibson DCJ on 23 December 2014 following a motor vehicle accident on 3 February 2010 in which the appellant's vehicle was struck from behind by another vehicle. The Nominal Defendant, the respondent, was liable, as neither the owner nor the driver of the vehicle could be identified.
The trial judge assessed the appellant's damages at $327,435, calculated as follows. Head of damage Amount Past economic loss $91,800 Past superannuation loss $10,098 Future economic loss, including superannuation $100,000 Past out of pocket expenses $84,177 Future out of pocket expenses $25,000 Fox v Wood (agreed) $16,360 Past assistance NIL Future assistance NIL

The appellant challenges the award for past and future economic loss, as well as the failure to award damages for past and future assistance. He seeks an order that this Court reassess his damages; in the alternative, he seeks an order that the matter be remitted to the District Court for reassessment of his damages. The grounds of appeal are: 1. The Trial Judge erred in her use of an adverse finding against the Appellant in her assessment of his damages. 2. The Trial Judge erred in failing to take into account the credible evidence of the Appellant's ex-de facto in assessing his entitlement to damages. 3. The Trial Judge's finding that the Appellant was able to work full time without difficulty was not supported by reasons and was in fact inconsistent with her reasoning process. 4. The Trial Judge erred in rejecting the Appellant's claim for past domestic assistance. 5. The Trial Judge erred in rejecting the Appellant's claim for future domestic assistance. 6. The Trial Judge erred in finding that the Appellant's claim for economic loss should be assessed on the basis of a buffer as opposed to a sum calculated with reference to the 5% tables.
Because of the view to which I have come, it is appropriate to deliver a short form judgment pursuant to s 45(4) of the Supreme Court Act 1970 (NSW) and Uniform Civil Procedure Rules 2005 (NSW), rule 51.55. I propose to address each of the grounds of appeal in summary form.

Ground 1: alleged erroneous use of adverse credit finding

The trial judge made adverse findings regarding the appellant's credit as a result of his evidence regarding his employment at Light Sounds as a part-time sales assistant from April 2013 to 6 June 2014. Mr Frost, his employer, gave evidence in the respondent's case. During this period the appellant was the sole employee of Mr Frost. Her Honour found that, although the evidence fell short of systematic fraud, the appellant and Mr Frost had engaged in secretive transactions to benefit the appellant in ways not discoverable to third parties (such as Centrelink from which the appellant obtained benefits). This inference was drawn from invoices issued by the appellant to Mr Frost which her Honour found were "of a suspicious nature"; documentary evidence of the appellant's work hours which was inconsistent with the appellant's oral evidence; and at least one document in which the appellant asked Mr Frost to destroy financial records. Her Honour accepted that this evidence did not necessarily mean that the appellant had recovered from his injuries and disabilities or that he was able to work full time. Rather, her Honour considered that the evidence showed that the appellant had attempted to hide the full extent of his earning capacity.
Her Honour specifically referred to this Court's decision in Telfer v Telfer [2014] NSWCA 188, which she applied to the assessment of the appellant's credibility. No error in her Honour's approach has been shown. The reasons of the trial judge reveal that her Honour carried out a comprehensive analysis of both the documentary and oral evidence before making the findings. I am not persuaded that her Honour misused the advantage she enjoyed as the primary trier of fact: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and 482-3. This ground has not been made out.

Ground 2: alleged failure to take into account the evidence of the appellant's ex- de facto, Ms Marques, in assessing his entitlement to damages

The appellant's written submissions do not address this ground, except in passing. The only submission made is that her Honour erred in finding that the provision by Ms Marques of domestic assistance could be explained upon the basis of the usual give and take in a family relationship. This matter arises in the context of grounds 4 and 5 and will be addressed further below. I do not consider there to be any merit in this ground.

Ground 3: allegation that the trial judge's finding that the appellant was able to work full time without difficulty was not supported by reasons and was in fact inconsistent with her Honour's reasoning process

After a detailed consideration of the medical evidence, from which her Honour quoted extensively in the reasons her Honour said, at [58]: "However, none of these doctors had the information I have concerning the hours the plaintiff was in fact working while he was at Light Sounds. The findings I have made in relation to the plaintiff's credit must be taken into account when assessing the plaintiff's claims of injuries and disabilities. By contrast, [t]he reservations expressed by Dr Dalton and Slezak carry more weight in relation to those credit findings, which are set out later in this judgment."
Her Honour accepted that the appellant retained a substantial work capacity notwithstanding the residual and permanent effects of the injuries sustained in the motor vehicle accident. This finding largely accorded with the reservations expressed by Drs Dalton and Slezak concerning the appellant's work capacity, to the effect that the appellant had had a poor response to surgery and was likely to have difficulties with repetitive and sustained overhead tasks and strenuous handling but that the condition had not stabilised and that there was "considerable scope for further recovery and improvement in function".
The trial judge's finding was, relevantly, that for a considerable period of time the appellant was able to work full time without difficulty. However, her Honour was careful to qualify this finding by confirming: "that does not mean that he will be able to work without difficulty on a full time basis for the rest of his life" (Red 58S-T). This finding formed the basis for the awards for past economic loss and a buffer for future economic loss. This ground has not been made out, no error in her Honour's approach having been shown.

Ground 4: alleged error in rejecting the appellant's claim for past domestic assistance

The trial judge's rejection of this claim depended in part on her Honour's assessment of the appellant's credibility and that of Ms Marques. Further, her Honour considered that the housework performed by Ms Marques in the order of ten hours a week was, in substance, the usual sharing of household duties between persons living under the one roof. As such, it was not to be taken into account by reason of s 141B(2) of the Motor Accidents Compensation Act 1999 (NSW), which excludes from the calculation of the threshold services which would have been provided in any event.
The trial judge's reasons disclose that her Honour did not consider the appellant to have discharged the onus of proving a need for past domestic assistance in excess of the statutory threshold. This assessment reflected, in part, her Honour's advantage in seeing and hearing the appellant and Ms Marques give evidence. No error has been shown.

Ground 5: alleged error in rejecting the appellant's claim for future domestic assistance

At trial, the plaintiff claimed 6 hours at $40 per hour per week for the rest of his life (39 years). The trial judge found that there was no expert evidence to establish a need for such care. Moreover her Honour was not satisfied that the appellant was unable to perform the tasks that had been performed by Ms Marques while they had been together. The appellant submitted that he had not only established a need for care, but that he had also established that it was likely that it would have to be paid for, as the only other relevant provider of gratuitous care was the appellant's mother, who was elderly. Whether or not the care would be paid for or provided gratuitously was not determinative having regard to the physical capacity that the appellant demonstrated at work, as well as her Honour's reservations about the appellant's credibility. The claim was rejected by the trial judge as her Honour was not satisfied that the appellant had established the need for such care. No error has been shown in her Honour's approach.

Ground 6: alleged error in assessing the award for future economic loss on the basis of a buffer rather than a capitalised weekly sum

In support of this ground the appellant submitted that the trial judge did not comply with the obligation imposed by s 126 of the Motor Accidents Compensation Act to make findings as to the appellant's most likely future circumstances but for the injury and state the assumptions on which the award is based.
The assessment of future economic loss may involve, particularly in circumstances such as the present, predictions as to the effect of an injury which may manifest itself over time and in the future. In such situations, a buffer is sometimes the best way of assessing fair compensation to an injured plaintiff whose incapacity is not particularly evident at the time of trial but is likely to become so at a future, unspecified time.
In my view, her Honour adequately explained the decision to award a buffer rather than a capitalised discounted amount by reference to a weekly sum. Her Honour considered that the evidence of the appellant's true capacity for work was revealed when he was working effectively full-time at Light Sounds but that some allowance should be made for the future when it could be expected that the injuries sustained by the appellant in the accident would diminish his earning capacity. I consider that her Honour sufficiently complied with s 126 when the reasons are read fairly as a whole. The approach taken by the trial judge has been endorsed by this Court in cases such as Penrith City Council v Parks [2004] NSWCA 201 (particularly at [58]) and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302. This ground has not been made out.

Conclusion

In my view, none of the grounds of appeal has been made out. Accordingly I propose that the appeal be dismissed.
GLEESON JA: The orders of the Court will be: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs.

Amendments 21 April 2016 - Coversheet and par 6 - rule 55.55 UCPR corrected to 51.55 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. Decision last updated: 21 April 2016

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