I am afraid I quite fail to understand his Honour's reasoning. To propel a brake-less vehicle into a main road is courting disaster, if for no other reason because it means one cannot stop when the occasion to do so arises, and this must therefore be a central issue on the question of negligence. Indeed, there is strong room for argument that the total culpability for the accident should be divided as to 66% to Mr Zreika and 34% to the appellant; but I am content with a determination that both parties were equally liable for the accident.
8 This brings one to the question of damages. Various heads of damages were decided. As his Honour pointed out, it was exceedingly difficult to ascertain just what damages were suffered. This is so, for many reasons. One is that Mr Zreika's credibility is not immaculate. He told different stories to different doctors. He concealed facts. He told untruths. He had a lengthy criminal record for various offences, including offences involving dishonesty. Sometimes his testimony was so bizarre that one is left gasping; for example, he gave evidence that he had once run in the City to Surf race, which he then described as a race which began and ended in the City. Nevertheless, his Honour basically believed him (although with reservation) and there is medical evidence consistent with his complaints. What were his complaints about the damage he suffered? He suffered an injury to his right saphenous nerve, but it did not prevent him from running, and it caused a permanent disability to the leg of no more than 1%. His Honour believed him when he complained that he suffered frequent neck pain due to soft tissue injuries; but (a) on his own story, the pain is mild, (b) it was not reported until 6-9 months after the accident, and (c) he has never sought or received any treatment for it. He said (and his Honour believed him) that he suffered from post-concussion headaches, which apparently arose well after the accident. He suffered a closed tibial fracture, which has now united so that he is able to walk on it without a limp. One of his doctors said of this: "he has had an excellent reset from the fractured tibia."
9 The most severe damage he claimed was psychiatric. This is an area which is particularly difficult to describe. All his life before the accident he had a disturbed personality, and in particular (to quote his Honour) "a grossly abnormal difficulty in controlling his temper". He had a disturbed childhood, and was physically abused by his father. He had been on many occasions to a psychiatrist before the accident. He had a long list of criminal convictions, many of them for crimes of violence. By the time he was 19 years of age, at the date of the accident, he had spent over three years in prison (as compared, incidentally, to two days in employment). His evidence on this topic, which his Honour accepted - although one would have to be sceptical - was that the accident exaggerated his psychiatric problems until he suffered from an extreme case of Intermittent Explosive Disorder with homicidal tendencies; there was some medical evidence which substantiated his case, although it was mainly conceived as a result of massive falsehood on Mr Zreika's behalf.
10 On the basis of this evidence, his Honour assessed non-economic loss at 45% of a most extreme case for the purposes of s 79A of the Motor Accidents Act 1988. In my view, in light of the facts I have endeavoured to summarize, the "loss" (which is a measure of his deterioration from his pre-accident position), could not possibly be so high. I cannot see how a figure higher than 25% could be justified.
11 Likewise, his Honour's figures for past economic loss ($52,384.43) and future economic loss ($179,178.00) seem equally extravagant. The former was calculated on the basis that Mr Zreika but for his injury would have obtained full-time employment and would have retained such employment without losing a day from work to the date of trial. The latter was calculated on the basis that Mr Zreika but for his injury would have engaged in full-time employment as a labourer without losing a day from work to the age of 65, although his work capacity had been reduced by 50% due to the accident. Both these bases are fanciful in the extreme. They are not supported by any evidence at all, and really reflect benevolent guesswork. Nor do they seem to take into account Mr Zreika's lack of job skills (which were close to zero), the volatility of the labour market (particularly, perhaps, in the Campbelltown area), his pre-injury work history (all two days of it), and his pre-injury personality problems (which arose out of the fact that he seems to be an unstable personality with a criminal record). The totality of the economic loss should be $10,000.
12 The award of interest on damages is governed by s73 of the Motor Accidents Act (1988). s 73(3) provides that no interest is payable on damages for non-economic loss. In assessing whether interest is payable on the remaining heads of damage, it is necessary to consider s73(4) of the Act.
13 The appellant made a formal Offer of Compromise in the sum of $4,000, on 13 January 1999. This was before he had received the reports of Drs Parkington, Cole and Scarf. Under s73(4)(a)(iv) of the Act, interest is not payable unless the amount offered is unreasonable having regard to the information available to the defendant when the offer was made. I agree with his Honour that the offer of $4,000.00 was an unreasonable amount. Accordingly, the appellant is liable to pay interest on damages. s73(6) provides that the rate of interest is to be "three-quarters of the rate prescribed for the purposes of section 95 of the Supreme Court Act 1970…", say 7%.
14 In the result, I would allow the appeal, and substitute for his Honour's verdict a verdict in the sum of $21,317.23. This sum is comprised of: