Vasailes v Robertson; Vasailes v Tang & Anor

Court of Appeal (NSW)|2002-05-15|Before: Hodgson JA, Mr J

CITATION : Vasailes v Robertson; Vasailes v Tang & Anor [2002] NSWCA 177 FILE NUMBER(S) : CA 40304/01; 40303/01 HEARING DATE(S) : 15 May 2002 JUDGMENT DATE : 20 June 2002

LOWER COURT JURISDICTION : District Court LOWER COURT 6179/97; 6197/97 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

Mr J W Conomos for the Appellant COUNSEL : Mr G R Petty SC for the Respondent in 40304/01 Mr D Davies SC with Mr S Davis for the Respondents in 40303/01 Carroll & O'Dea for the Appellant SOLICITORS : Adelsteins Solicitors for the Respondent in 40304/01 Hunt & Hunt for the Respondents in 40303/01 CATCHWORDS : PERSONAL INJURY - assessment of damages - whether trial judge provided reasons for rejection of plaintiff's evidence - whether trial judge failed to give weight to evidence of independent witnesses - whether trial judge erred by failing to award damages for past economic loss although he allowed for future economic loss - PRACTICE - damages paid under verdict later set aside on appeal - in the District Court can these sums be offset against damages awarded on retrial - should there be a counterclaim - can the counterclaim be made nunc pro tunc after verdict announced in the retrial LEGISLATION CITED : District Court Act 1973, s60 Supreme Court Act 1970, s23, s63, s91 Goose v Wilson Sandford & Co [1998] EWCA Civ 245 Government Insurance Office of New South Wales v Healy [No.2] (1991) 22 NSWLR 380 Hadid v Redpath [2001] NSWCA 416 CASES CITED: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Moylan v The Nutrasweet Company [2000] NSWCA 337 R v Maxwell (unreported, Court of Criminal Appeal, 23 December 1998) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 16 NSWLR 247 Warren v Coombes (1979) 142 CLR 531 DECISION : 1. In the Robertson case, (a) appeal allowed; (b) orders below set aside and in lieu thereof it is ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes against Tracey Robertson in the sum of $114,823 with the costs of the proceedings below; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the counterclaim, Tracey Robertson have a verdict and judgment against Theo Vasailes in the sum of $101,588; 2. In the Tang case, (a) appeal allowed; (b) orders below set aside and in lieu thereof it is ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes in the sum of $16,692 with the costs of the proceedings below up to and including 16 August 1999; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the cross-claim there be verdict and judgment for Eugene Tang against Theo Vasailes in the sum of $85,760; 3. Liberty to apply in relation to the terms of these orders reserved.

23 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40304 / 01 40303 / 01

Hodgson JA Davies AJA Pearlman AJA

Thursday, 20 June 2002 Vasailes v Robertson Vasailes v Tang & Anor Judgment 1 Hodgson JA: I agree with Davies AJA. 2 Davies AJA: These two appeals are brought from judgments of his Honour Judge Dodd DCJ, given on Friday 11 May 2001. The matter came before his Honour as a result of an order of the Court of Appeal directing a new trial on the issue of damages. On 3 April 2001, his Honour assessed damages in the Robertson case, which involved an accident in 1986, at $80,447.04, and in the Tang case, which concerned an accident in 1991, at $15,175.67. His Honour indicated that he proposed to enter a verdict and judgment for the plaintiff for those sums. 3 On 11 May 2001, it was drawn to his Honour's attention that the sums awarded at the first trial had been paid to the appellant. These sums were in excess of the sums which his Honour had assessed. It would appear that it was also drawn to his Honour's attention that the award in the Robertson case had to be reduced by 20 per cent for contributory negligence, giving a figure of $64,357.63. His Honour then entered judgment for the defendants, the present respondents, for such of the amounts paid as exceeded the sums which his Honour had assessed to be due. His Honour said: "However in each case the defendants paid to the plaintiff the amounts found as a verdict in those original proceedings. Taking into account those amounts paid results in the plaintiff not being entitled to a verdict in either case as a result of my findings and therefore the orders that I now make are as follows: In the case of Vasailes v Robertson I enter a verdict and judgment in favour of the defendant for the total sum of $27,995.45. I order the defendant to pay the plaintiff's costs to 18 April 1995 and I order the plaintiff to pay the defendant's costs thereafter. In the matter of Vasailes v Tang I enter a verdict and judgment in favour of the defendants for the total sum of $62,788.14. I order the defendants to pay the plaintiff's costs to 9 March 1995 and I order the plaintiff to pay the defendant's costs thereafter." 4 There are obvious problems with the course which his Honour took. The District Court is a Court having limited jurisdiction and limited powers. The District Court does not have the general authority conferred, for example, by ss 23, 63 and 91 of the Supreme Court Act 1970. The amounts paid under the judgments given at the first trial were not paid by way of interim payments. Therefore, his Honour did not have power to make such order "as may be just", the power conferred by s 60 of the District Court Act 1973. 5 Nevertheless, once the judgments of the first trial had been set aside, the respondents were entitled to recover the moneys paid thereunder. These moneys were moneys paid for a consideration which had wholly failed and the appellant was unduly enriched thereby. The respondents had a cause of action for restitution: Government Insurance Office of New South Wales v Healy [No.2] (1991) 22 NSWLR 380. It was proper that that cause of action not be exercised by the lodgement of a cross-claim in the District Court prior to his Honour's assessment of damages, for the cross-claim would have had a tendency to prejudice the retrial on the issue of damages. The respondents were, however, entitled to cross-claim once damages had been assessed by his Honour. His Honour should have directed that this be done. As that was the correct procedure, I consider that the matter should be treated on the footing that his Honour considered that there were cross-claims before him and that he dispensed with compliance with the Rules of the District Court so as to enable that to be done. 6 Even so, the orders which his Honour made as to costs were wrong. Subject to any prior offer made by the respondents, the appellant was entitled to his costs of the retrial. It was necessary for him to prove his damages. 7 On this basis, counsel for the respondents in these appeals tendered evidence, which was not before his Honour, which shows that, in the Robertson case, an offer exceeding the sum awarded was made on 12 September 1995 and, in the Tang case, an offer exceeding the sum awarded was made on 16 August 1995. I shall discuss later what should be the appropriate order as to costs in the light of these offers. 8 I turn now to his Honour's assessment of damages. His Honour expressed the view that this was "an extremely difficult case to assess". One problem was that the plaintiff, the present appellant, was untruthful and his evidence unreliable. Another was that, at the time of the 1986 accident and prior thereto, the appellant was drawing sickness benefits to some at least of which he was not entitled. At the time, he was not submitting income tax returns. Later in the 1980s, he settled his affairs with the Social Security Department and with the Taxation Office. Even then, the taxation returns which he lodged for the relevant years of income appear to have been figments of his imagination. 9 Moreover, the corroborative evidence of economic loss, which consisted of the medical evidence and the evidence of the appellant's mother and of Mr Holm and of Mr Katopodis, described the appellant's general impairment, rather than any specific time off work. Thus, the appellant's mother said: "Q: After that first accident, how often did he complain to you about his back or his neck? A: He complain sometimes but not bad. … Q: You'd said before he was working as a painter, after the accident in 1986 did he go back to work as a painter? A: He push, he sometimes work, if he sore he stays home. Q: Did you notice that he was not working more often or less often than he had been before? A: Before he regular work, after he work but not so much because sore."

The evidence of the witnesses did not support that of the appellant who said that, after the 1986 accident, he was unemployed until, in 1988, he did a bit of work. There was no reliable documentary evidence supporting the appellant's claims. 10 The medical evidence was equally difficult to assess. Treating medical experts such as Dr Medhat Guirgis, Dr John E C Bentivoglio and Dr Patrick believed what the appellant said to them and considered that the appellant's physical symptoms were consistent with and caused by the 1986 and 1991 accidents, particularly the former. Dr Guirgis, in particular, saw the appellant over many years. Although, in the early years, no radiological evidence disclosed damage to the spine, subsequent investigations disclosed signs of a deteriorating back. Dr Guirgis and other experts considered that these later tests confirmed the earlier diagnoses. The respondents' medical experts, however, considered, in general, that the appellant had no physical problem in the spine, that his musculature, that is to say his body development, was entirely inconsistent with his claim to be physically handicapped and that any signs of deterioration shown up in the later investigations were consistent with deterioration in the spine of a working man, and a recent injury. Dr Schnier, a radiologist who reported to Tang's solicitors, considered that the X-rays, MRIs and CT scans showed no significant abnormality prior to an MRI scan in 1999 which showed significant disc protrusion and disc space narrowing. The respondents' medical experts considered that the condition shown in the 1999 scan was not related to the 1986 or 1991 accidents. Accordingly, there was strong but contrasting medical evidence on both sides. 11 The substance of the view taken by Dodd DCJ was expressed in the following passages of his reasons for judgment: "I have come to the conclusion that the plaintiff's evidence cannot be accepted unless independently established. Overall I gained the impression that he was to a great extent exaggerating his condition and incapacity for work, and that he was vacillating and prevaricating in respect of various aspects of his evidence. … In relation to the 1986 accident there is no doubt the plaintiff suffered what is commonly known as a whiplash injury. In my view there is no doubt that some of these injuries can result in severe and debilitating pain. However, the early evidence was that although he said he was in pain in the neck, back and knees there was no radiological evidence of any damage, thus leading to the conclusion that the damage was what is referred to as 'musculo-ligamentous' or 'soft tissue'. Dr Guirgis thought he saw some damage at L4-5 before the 1991 accident. Whatever the precise mechanism was, and whether the later radiological evidence indicates injury from the 1986 accident or not it seems reasonable to me, on the evidence of Dr Guirgis and Dr Alam, to come to the conclusion that the plaintiff suffered for some time headaches, pain in the neck and shoulders and back as well as the knees as a result of the 1986 accident. I do not accept that it was as severe as the plaintiff seeks to make out. … I am unable, on the evidence, to find that he was working before the 1986 accident. … The consequence is that I cannot find that the plaintiff lost any particular amount in lost wages or earnings as a result of the accident, at least in the months immediately following. So far as the longer term is concerned I am of the view that the plaintiff's injuries in the 1986 accident have reduced his earning capacity somewhat. I am not convinced, however, that the plaintiff has demonstrated that it has resulted in any actual loss to date. … As to the future I find that there is a chance that the plaintiff's injuries due to the 1986 accident may cause him loss of income and he should be compensated for that on a buffer or cushion lump sum basis. Doing the best I can I assess that at $30,000.00. Doing the best I can to sort out the various strands of evidence and allowing for what I judge to be the plaintiff's exaggeration I assess general damages at $40,000.00 on the basis that it was a moderately severe whiplash injury with lingering occasional pain and discomfort and the possibility of worsening in the future. I take into account his psychological state of anger and possible mild depression in coming to that assessment. Any paranoid state however is in my view not attributable to either accident. … So far as the 1991 accident is concerned in my view by virtue of the very nature of the accident there is likely to have been an aggravation or re-manifestation of symptoms. … Nothing in the evidence attributes any knee problem in the past to the 1991 accident. The plaintiff said in evidence that he could not say his neck was worse from the 1991 accident… That leaves aggravation of the lumbar spine. The plaintiff said he was a lot worse. Mr Holm did not notice any difference in the plaintiff after the 1991 accident. … On the evidence, taking the view of Dr Giurgis who saw him before and after, accepting that Mr Holm's assessment was correct, bearing in mind that he saw him frequently at work and taking into account that no loss of earnings has resulted by virtue of the finding that I have previously made, I cannot find that at the date of hearing the plaintiff's ability to lead a normal life is significantly impaired by any injury suffered in the 1991 accident. The plaintiff suffers the chance that his back may cause him problems in the future. The aggravation in the 1991 accident has contributed to that, and to increasing that chance. That is best dealt with by the award of a lump sum for the 1991 accident's contribution to that chance which I assess at $10,000." 12 There are aspects of his Honour's judgment which have attracted criticism:

(i) The reasons for judgment were delivered on 3 April 2001, some 20 months after the hearing in August 1999. The extracts from the evidence which his Honour cited were extracts from his own notebook, not from the transcript of evidence. Accordingly, the delay was very great and his Honour does not appear to have had the advantage of reading the transcript to refresh himself.

(ii) His Honour failed to take account of the 20 per cent contributory negligence which the Court of Appeal held should be taken into account in the Robertson case.

(iii) Although his Honour set out the substance of the evidence given by each of the medical experts, including setting out in full the opinion of Dr W G D Patrick, his Honour did not analyse the evidence in any depth and, in the crucial passages which I have set out above, referred only to the evidence of Dr Guirgis and Dr Alam. Even then, as the evidence of Dr Guirgis and Dr Alam, taken at face value, would have justified a very much higher award than that which the trial judge made, his Honour did not explain at any length why he did not accept the substance of their evidence.

(iv) His Honour did not discuss the tax returns lodged by the appellant in 1988.

(v) His Honour found that the appellant had suffered a permanent incapacity for work arising from the 1986 accident and he allowed $30,000 in respect of future economic loss; yet he allowed no loss whatever for the 15 years which had elapsed between the time of the 1986 accident and the time of judgment. 13 In a case such as the present, I take the function of the Court to be that enunciated by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 where their Honours said (at 551): "Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it." 14 When a decision has been delayed for an excessive time, as here occurred, it is also the duty of an appellate court to scrutinise closely the reasons of the trial judge and the conclusions arrived at. It should not readily be assumed that the trial judge made proper use of the advantage which a trial judge has to hear the whole of the case and to observe the witnesses in the course of their evidence. It should not readily be assumed that omitted matters were considered or that mistakes were insignificant. Goose v Wilson Sandford & Co [1998] EWCA Civ 245; R v Maxwell (unreported, Court of Criminal Appeal, 23 December 1998); Moylan v The Nutrasweet Company [2000] NSWCA 337; Hadid v Redpath [2001] NSWCA 416. 15 Counsel for the appellant criticised his Honour's judgment for lack of reasons. However, it is sufficient for a judge to make plain what are his findings of fact, what was the evidence relied upon and what was the reasoning process which led to his conclusions. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 16 NSWLR 247; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. 16 In this regard, counsel for the appellant criticised his Honour's finding that "the plaintiff's evidence cannot be accepted unless independently established".

However, his Honour said that the appellant was guilty of gross exaggeration. Although his Honour did not give examples, it is quite clear why his Honour came to that conclusion. The appellant gave evidence that he was working at the time of the 1986 accident and was unemployed thereafter until he did a little work in 1988. He said, for example: "Q: Mr Vasailes look at the date that Mr Souvleris has put on it, on the next page? A: Yeah. Q: 29 September 1989? A: Yeah. Q: In the three years before this you had done no or virtually no painting work at all? A: I might have done one job." 17 There was no evidence to support this, other than the income tax returns. The appellant did not produce the records of his work, which he said he kept and on which the returns were said to be based. He did not call his uncle. The evidence was inconsistent with the probabilities of the case. It was inconsistent with the evidence given by the appellant's mother, by Mr Holm and by Mr Katopodis. And it was inconsistent with the trade references which the appellant submitted to the Building Services Corporation in September 1989 to renew his licence. In those references Mr Felekos, the appellant's uncle, said that, over the last 11 years, the appellant had carried out work ranging from $1,000 to $20,000 and that his work performance was of the highest standard. Mr Souvleris said that, over the last 3 years, the appellant had carried out works ranging from $500 to $10,000 and that he had completed all works with a great amount of care and efficiency. Mr Angelis and Mr Flint certified to the appellant's competence. And finally, the appellant's evidence was inconsistent with the information given to Dr Guirgis, whom he saw on 30 April 1987 and 3 March 1988 and to Dr Alam, whom he saw on 29 June 1987. Dr Guirgis noted that the appellant suffered: "considerable discomfort and apprehension particularly while doing his duties as a painter."

Dr Alam noted, "He works as a Painter with his Uncle, and has been with him since aged 14 years. Since the accident, he has only been able to manage 2-3 days per week, and tends to avoid heights." 18 I need not discuss this issue further. The appellant's evidence was redolent with gross exaggeration. It was unnecessary for the trial judge to say more on that issue than he did. 19 Counsel for the appellant referred to the fact that his Honour did not discuss the medical evidence in detail, particularly the discograms carried out on 30 June and 6 August 1993 and the MRI carried out on 6 July 1999. However, his Honour made it plain that he considered that much of the appellant's case was fabricated and that he was satisfied only that the appellant had suffered a musculo-ligamentous or soft tissue injury. His Honour relied principally on the early reports of Dr Guirgis and Dr Alam and he referred to that fact that the early examinations showed no radiological evidence of damage. I would merely add that I find the evidence of the respondents' experts with respect to the radiological evidence to be compelling. The appellant's experts proceeded on the basis of a much greater incapacity for work than his Honour was prepared to accept. His Honour was entitled to and did have regard to the other evidence bearing on that issue. 20 Counsel for the appellant submitted that, on the issue of the 1991 accident, in which Tang was involved, his Honour did not take account of the evidence of the appellant's mother who said that, "after the second accident he is more worse, more sore." However, his Honour set out the substance of her evidence and indicated that he placed more significance on the report of Dr Guirgis that: "The effect of the recent car accident of 1991 was only to aggravate the underlying post-traumatic pathology in the lower back through further musculo-ligamentous sprain/strain of the lumbar spine."

His Honour also gave significance to the evidence of Mr Holm who said that he did not notice any difference of the appellant after the 1991 accident. His Honour referred to the fact that no primary business records had been produced to show any difference in the appellant's capacity for work after the 1991 accident and his capacity prior thereto. In my opinion, his Honour dealt briefly but adequately with the issue. 21 A difficulty which his Honour faced and which any judge would have faced was that there was no satisfactory evidence as to when the appellant was off work. No business records were produced. The appellant's evidence about this matter could not be accepted in part because of his good musculature. The appellant said that, at the time of the 1986 accident, he had been principally working with his uncle. But the uncle was not called to give evidence. Nor was his absence explained. Nor was any documentary proof of his working for or with his uncle produced. The lack of documentary evidence was unexplainable for the appellant saw a solicitor in 1987 and these proceedings commenced in that year. The records on which the tax returns later filed were said to be based were, if they existed, then in existence. The appellant had adequate opportunity to obtain proof, if his story was correct. If the appellant worked for his uncle, as appears to have been the case, that was not reflected in the income tax returns that were later lodged. 22 Because the trial judge considered that he could accept the appellant's evidence only to the extent that it was corroborated by other evidence, and because his good musculature was inconsistent with his description of his disability, there was little or no evidence to which his Honour could turn to determine whether the appellant suffered any or what time off work as a result of the accident. As I have said, the appellant was, at the time of the 1986 accident, fraudulently drawing sickness benefits, and he subsequently settled with the Social Security Department. 23 His Honour found that the appellant had suffered a moderately severe whiplash injury with lingering occasional pain and discomfort with the possibility of a worsening in the future. His Honour took into account that the appellant suffered a psychological state of anger and possible depression as a result of the 1986 accident. His Honour rejected any paranoid state. The trial judge was not bound to accept the views of the plaintiff's medical experts which indicated that the appellant suffered a much more severe injury. His Honour was entitled to take account of the fact that the appellant was not a truthful person and that he had defrauded the social security department and the taxation office. His Honour was entitled to discount the evidence given by the appellant's experts. 24 It is clear from the judge's reasons that his Honour took all the medical evidence into account. In my view, his Honour's conclusions were well-based. His Honour obviously rejected the view that the radiological and like examinations established that the appellant had suffered any radiologically identifiable injury as a result of the 1986 accident. However, his Honour accepted that the appellant had suffered from a musculo-ligamentous or soft tissue injury the effects of which were largely dependent upon the reliability of the appellant's complaints. 25 The substance of the trial judge's findings can be found expressed in the reports in evidence. The first report of Dr Guirgis of 14 March 1988 said: " Mr Vasailes had sustained a musculo-ligamentous injury to the cervical, dorsal and lumbar spines spine in the form of a cervical, dorsal and lumbar spines spine sprain. This sprain could have resulted in the way described above. This injury was treated conservatively with a satisfactory but slow response. The continuation of his complaints in the cervical, dorsal and lumbar spines are consistent with the nature of his injury and statistical evidence shows that the average duration of symptomatology in such cases may last between 1 and 5 years. A definite pattern for the natural history of his injury is difficult to predict at the present stage." [Emphasis added] 26 Dr Alam said in his first report of 21 July 1987: "- A neck injury takes 2-3 years to settle down, and then it is given to recurrences and exacerbations. The considerable forces to which one is subjected to in this type of accident, causes an acceleration of the usual wear and tear changes that take place in the neck. The neck segment of the spine is a complex, multi-jointed, musculo-ligamentous structure, with anti-gravity functions. It also serves to protect the underlying spinal cord and its emerging nerves. Emerging nerves are very vulnerable in this type of accident, and tend to be irritated and stay irritated for some considerable time, and manifest themselves in symptoms, such as spasm, tenderness, persistent pain and referral pain; and we see that in this case. - A similar statement applies to the back. These injuries are subject to recurrences and exacerbations. At such times, he will require analgesic and anti-inflammatory medication, plus or minus physiotherapy and manipulation. - As for the knees. These being weight bearing joints, once disturbed are slow to settle, but eventually they may be expected to do so. - But, to be subject to early onset of osteo-arthritic, degenerative changes, and once again be subject to climatic changes, and recurrences and exacerbations. [ sic ] - Of good indication is the employment within the family, with availability there for continuity there [ sic ] for light and reduced output. He was encouraged to work on by means of occupation and motivation. He also was advised to drastically cut his drinking bouts and smoking." [Emphasis added] 27 These are the two reports on which the trial judge appears to have placed greatest reliance. His Honour referred to Dr Guirgis and Dr Alam in the passages I have set out from his reasons. These doctors had an advantage in that they saw the appellant at a relatively early stage. His Honour's findings are generally consistent with these opinions. 28 It was open to the trial judge to place particular weight upon the early reports, indeed appropriate that he should do so in the case of Dr Guirgis, for the appellant was referred to him as a patient by the appellant's local doctor. The respondent's experts considered that the appellant had no ongoing physical disabilities as a result of the 1986 and 1991 accidents although Dr Bornstein commented on 14 June 1994 that, "It seems likely that he does have a measure of discomfort in the neck and lower back".

On the whole of the evidence before him, the trial judge was entitled to find that the appellant had suffered injury in the 1986 and 1991 accidents and that there were long term consequences. 29 In my opinion, his Honour's reasons were brief, but they set out the substance of the findings made and the evidence relied on and they explained the reasons which led his Honour to these findings. They did not fail to explain the basis for any crucial finding of fact. 30 His Honour found that the disabilities which the appellant suffered were long term. Although his Honour referred to the allowance of $30,000 as being for "a chance… the 1986 accident may cause him loss of income", it is inherent in His Honour's finding that the appellant had an incapacity for work and that that incapacity was likely to be permanent. The foundation for that conclusion was not only the evidence of the medical practitioners. I have already set out the crux of the evidence of the appellant's mother with respect to the 1986 accident. Mr George Katopodis said, at the hearing in August 1999, that he had met the appellant more than ten years ago, which I take to be about 1988. He said that the appellant did work for his business, KAT Painting. He said that the appellant was a good painter, that, at the beginning, he called upon the appellant often enough and that generally he was available. Mr Katopodis said the appellant was all right, a good painter. He said that, in the last few years, the appellant refused some particular work, high work or hard work, that he preferred to work on the floor. He said that the appellant mentioned his back and that he did not like to go up on the extension ladders and did not like heavy work. Mr Katopodis said that the appellant refused to work a few times in the last six or seven years and said that he was sore. He said that, lately, the appellant was whingeing about the type of work and the time of work and he did not want to work two or three days straight. He was blaming not feeling well or he was sore or something like that. No challenge to this evidence was made in cross examination. 31 Mr Jason Holm, who at the time of trial was working for the appellant, said that he met the appellant in about 1987 or 1988. Mr Holm gave this evidence inter alia: "Q. When you first met him, did you make any observations of how he was physically? A. Yes, he seemed quite well built. Didn't seem like there was anything physically wrong with him except he kept moving around a lot. Q. When you say he kept moving around a lot, what do you mean? A. He couldn't sit still. Q. Did he ever indicate to you why that was? A. Yes, he said he had a car accident and he had a lot of pain and couldn't find a comfortable position to sit in. Q. Did you ever observe him do things that suggested that he had pain to you by watching him? A. Yeah, he would always twist and move and move each leg around trying to get comfortable. … Q. Just tell us when you started working with Mr Vasailes. A. In '93/'94 I think you will find I started working with him. … Q. When you started working, what did you observe about him on the job? A. His attention span towards work wasn't very long at all. He would start something and then 5/10 minutes later he wouldn't be able to complete it. He would just want to do something else. … Q. Did you make an observation of him as to why he was doing [ sic ] when he made these changes from one thing to another? A. Yeah, I think - myself I think it was mainly his pain. He would be looking up at the ceiling, he couldn't look very long. He would constantly try to move his neck or move his back or try to go after something or ask me what I'm doing or how I'm going. Q. Did he make comments to you about that? A. Yeah, every now and then he would say, 'My bloody neck hurts, my bloody back hurts', that's about it. … Q. When you say he couldn't work, what do you mean, what would he do? A. Well he couldn't do anything. He would just get to the point where he didn't want to work, he was so frustrated that he couldn't work. … Q. Give us an example of when he might have more problems than others, what kind of problems are we talking about? A. If we had a job that consisted just of ceilings, he would have more problems doing that, because he would consistently have to look up. You have got to hold obviously the roller and everything above your head and move from side to side which is strenuous work and if you are not used to it, it's very hard. He found that more difficult than anything else. Q. What about rolling on walls and so on? Did you observe him have difficulty with that? A. Yes, he did, but on some days he would be fine for maybe 15/20 minutes and then all of a sudden he just wouldn't be any good. He would have difficulty. Q. And when he had difficulty, did he make any comment to you about what it was that was causing him difficulty? A. If I was in the room he would say to me as I said, 'My bloody back hurts', this and that. Just had enough. Q. So as the time went by, what did you notice about his manner? You talked about him being frustrated before. Did that stay the same, increase, get better? A. I found him to be getting continuously more aggressive towards going to work. He was just getting frustrated that he had a trade and he just couldn't do it. He was relying on me more and more and I wasn't experienced enough to do it. … Q. The times when you socialised with him for example playing golf? A. Yes. Q. In the late '80s, did you see - observe him to have trouble then? A. Yes. We would have a bit of fun, maybe play three or four holes and after that he would sort of like drop out. He would just walk along for the ride, just say, 'I can't do it'. … Q. In terms of his interaction with people from your observation, is he the same person he was 10 years ago? A. No, I don't think so. Q. In what way is he different? A. He seems to - hard to explain. He doesn't seem to be the same person. He just seems to be very agitated and everything. He can't talk slowly or very softly. It's always fast and very boisterous. … Q. On a good day for example, what could he do? A. He could do his trade. Q. And on a bad day? A. He wouldn't pick up a paint brush." 32 The cross examination of Mr Holm did not change this picture, although Mr Holm conceded that, in some of his evidence, which I have not set out, there was serious exaggeration. 33 His Honour set out the substance of the evidence given by Mr Katopodis and by Mr Holm without commenting adversely upon the credit of either. His Honour's judgment is consistent with acceptance of the substance of their evidence. 34 The appellant's tax returns, which were not lodged until 1988, showed, in the 1984 year, a nett profit of $10,819 from the business of painting, in the 1985 year, a nett profit of $25,155 from painting and, in the 1986 year, profit of $20,943 from that occupation up to 28 April 1986. Thereafter, no income from painting was returned until the 1990 year of income. His Honour made no comment upon these returns. The tax agent, Mr Stephen Kamper, gave evidence. Mr Kamper was cross examined on the probabilities of the relationships between the gross income returned and the expenditure claimed. He was also cross examined on the fact that nothing in the returns showed income from a principal contractor or employer which had been the subject of tax deductions. Mr Kamper said that he would not have retained his worksheets for the earlier years. The trial judge did not comment upon these returns other than to say they were reconstructions. In my opinion, the returns are plainly unreliable. They are consistent with having been prepared to present a case favourable to the appellant in these present proceedings. A certificate by Mr Kamper given to the Building Services Corporation in 1989 was equally unreliable. 35 There is in evidence the appellant's TAB account for the 1991 calendar year. This shows a very high level of betting on the account during the year and suggests that the appellant had a significant income at the time. His Honour said that the appellant acknowledged an $8,000 loss in the two months before the 1991 accident. His Honour also referred to the fact that the appellant agreed that, in 1997, he signed a rental application to pay $370 per week for a 12 month lease on a house and that, in 1998, he went to Europe for just under two months at a cost of $14,000. 36 I see no error in the general thrust of his Honour's findings save that, in my view, an allowance should have been made for past economic loss. It is improbable that, if the appellant suffered injuries in the nature of musculo-ligamentous or soft tissue injuries and psychological depression of such severity as to lead to an allowance for future economic loss of $30,000, the appellant did not also suffer economic loss in the 15 years from the date of the accident to the date of judgment. In my opinion, the fact that the uncle was not called did not lead to the probability that the appellant did not suffer financial consequences as a result of the 1986 accident. His Honour found that the appellant had suffered injury and he set out the evidence of the appellant's mother and Mr Katopodis and of Mr Holm without querying it. 37 His Honour made his award of damages on the footing that it had not been proved that the appellant lost any work or any time off work as a result of the 1986 accident. In my opinion, the evidence was strong enough to establish, on the balance of probabilities, that the appellant was working as a painter in 1986 when the first accident occurred. Apart from the fact that the appellant was drawing sickness benefits and the fact that the uncle was not called as a witness and his absence was not explained, there is no reason to doubt that the appellant was working. He was of working age and was a painter. The appellant and his mother gave evidence that he was then working. Mr Holm and Mr Katopodis came to know him in 1987 or 1988 when he was working as a painter. In the view of Mr Katopodis, he was a good painter. The fact that the appellant lodged income tax returns for the years ended 30 June 1984, 1985 and 1986 claiming substantial income from painting is an indication that, in those years, he did earn income from painting. The returns are not reliable, as I have said, but the appellant had to pay tax on the income returned. It is unlikely that he would have done so had he not been earning income during the period. 38 The appellant's condition in 1986 was serious enough for him to be sent for radiological examination in July 1986. The condition caused the appellant sufficient problems for him to see Dr Guirgis, an orthopaedic surgeon, on 30 April 1987. Dr Guirgis' report of 13 March 1988 referred to a neck injury resulting in pain and stiffness in the neck, with pain shooting which involved both shoulder blades and the area of the spine in between. Dr Guirgis noted a back injury resulting in pain and stiffness felt in the lower part of the back. He also noted that there had been a recurrence and aggravation of the pain the appellant used to feel in the front of both his knees. Dr Guirgis noted repeated giving way attacks which caused the appellant considerable discomfort and apprehension, particularly while doing his duties as a painter which necessitated climbing ladders. In the opinion of Dr Guirgis, Mr Vasailes sustained a musculo-ligamentous injury to the cervical, dorsal and lumbar spines and he also sustained a soft tissue injury to the right and left knees. 39 As his Honour accepted the opinions of Dr Guirgis and Dr Alam and evidence of the appellant's mother, of Mr Katopodis and of Mr Holm, it seems to me that his Honour should have made an allowance for the economic loss which flowed from these limitations in the appellant's condition. 40 It is impossible to allow any specific time off work because no such time off has been proved. But what has been proved is that the appellant was limited in the amount of work which he would otherwise have been capable of doing, was limited in the nature of the work which he could do, was limited in the length of time for which he could work and, therefore, that his income must have been reduced by his physical condition. 41 In these circumstances, I consider that an allowance should have been made for past economic loss. His Honour rejected the claim for pre-trial economic loss as his Honour was not satisfied that the appellant was working before the 1986 accident, that records were not produced, that the appellant could not be accepted on his word and that the uncle was not called. His Honour concluded: "I cannot guess at whether he was working or not. I cannot adopt some compromise solution. Either the evidence establishes that he was then working or it does not, on the probabilities. I find that it does not. The consequence is that I cannot find that the plaintiff lost any particular amount in lost wages or earnings as a result of the accident, at least in the months immediately following." 42 In my opinion, there is a preponderance of evidence that the appellant worked as a painter both before and after the 1986 accident, and that, after the accident, the appellant was handicapped in the manner found by the trial judge, namely, that he suffered from the effects of a musculo-ligamentous soft tissue injury as described by Dr Guirgis and Dr Alam, and that his ability to function was limited as described in the medical reports and in the evidence of the appellant's mother, of Mr Holm and of Mr Katopodis. 43 It seems to me to be inevitable that injuries of this nature, which justified an award of general damages of $40,000 and an award for future economic loss of $30,000, must have caused loss during the 15 years between the accident and the judgment. 44 In making an award for past loss there can be no precision for the materials on which precise figures could be calculated are not before the Court. However, difficulty in making an award should not preclude the Court from awarding damages where the Court is satisfied that damages have been suffered. 45 Relying upon the evidence of Dr Guirgis and Dr Alam, on the many references in the medical reports to the appellant's disabilities in carrying out the occupation as a painter and to the evidence of the appellant's mother, of Mr Katopodis and Mr Holm, I am satisfied that the appellant must have suffered damages which, together with interest, would amount to at least $50,000 over the 15 years from the 1986 accident. 46 I would therefore vary the award of damages in the Robertson case by increasing it by $50,000, giving a total of $130,447. 47 As the orders below must be set aside and the awards will take effect from the date of this Court's judgment, the awards should be increased by ten per cent to allow for the period which has elapsed. The award in the Robertson case will therefore be $143,495. This should be reduced by 20 per cent for contributory negligence. The final figure is $114,796. The award in the Tang case will be $16,692. 48 I would otherwise dismiss the appeal. I am not satisfied that in any other respect an error in the conclusions of fact of the trial judge or in his assessment of damages has been demonstrated. 49 It is common ground that the figures for which judgment was entered in favour of the respective defendants by Dodd DCJ correctly represented the amount payable at the time, having regard to the verdicts in favour of the appellant, the amounts previously paid to the appellant, and interest. Accordingly, I will proceed on the basis that, as at 11 May 2001, Robertson was then entitled on her cross-claim to $27,995.45 plus $64,357.63 (that is, $92,353.00), and Tang was entitled on his cross-claim to $62,788.14 plus $15,175.67 (that is, $77,964.00). Ten per cent interest should be added in each case to give up to date figures, namely $101,588.00 for Robertson and $85,760.00 for Tang. 50 I return now to the question of costs. The appellant has succeeded against Robertson. He should have his costs of the appeal. As to the costs below, counsel for Robertson relied upon an offer of compromise made on 12 August 1995. However, the offer was less than the sum which, in my view, should have been awarded. The appellant should therefore have his costs of the proceedings below. 51 A Calderbank offer was made by Tang on 16 August 1999, the first day of this trial. This substantially exceeded the damages which the trial judge awarded against Tang. The appeal against his Honour's award of damages has failed. The appellant should therefore pay Tang's costs of the appeal, and should have his costs of the proceedings up to and including 16 August 1999. I would make no order as to the costs of the trial thereafter. 52 For the reasons given, I propose the following orders:

In the Robertson case, (a) that the appeal be allowed; (b) that the orders below be set aside and in lieu thereof it be ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes against Tracey Robertson in the sum of $114,823 with the costs of the proceedings below; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the counterclaim, Tracey Robertson have a verdict and judgment against Theo Vasailes in the sum of $101,588.

(a) that the appeal be allowed; (b) that the orders below be set aside and in lieu thereof it be ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes in the sum of $16,692 with the costs of the proceedings below up to and including 16 August 1999; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the cross-claim there be verdict and judgment for Eugene Tang against Theo Vasailes in the sum of $85,760.

Liberty to apply in relation to the terms of these orders be reserved. 53 Pearlman AJA: I agree with Davies AJA. -o0o-

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Judgment (21 paragraphs)

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