Vince Scuderi(Appellant) v Nadarajah Raskurasingham (First Respondent)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop J
• Judgment Date: 24 February 2017
• Date: 24 February 2017
• Docket Number: File Number(s): ACTCA 103 of 2015

[2017] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number(s): ACTCA 103 of 2015

Vince Scuderi

(Appellant)

and

Nadarajah Raskurasingham

(First Respondent)

Insurance Australia Limited t/a NRMA Insurance

(Second Respondent)

Cases Cited:

Baxter v Insurance Australia Ltd [2015] ACTSC 273

Davies v Grgic [2006] ACTSC 14

De Marco v Italo-Australian Club (ACT) Ltd [2010) ACTSC 28

Dennis v Australian Capital Territory [2005] ACTSC 118

Eames v Shane [2012] ACTSC 116

Franklins Ltd v Burns ; Burns v Franklins Ltd [2005] NSWCA 54

Klobucar v The Queen [2014] ACTCA 6

Planet Fisheries v La Rosa (1968) 119 CLR 118

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362

Sutherland Shire Council v Major [2015] NSWCA 243

Tsueneaki v Stewart [2013] ACTCA 34

Urbaniak Bak v Prail [2014] ACTSC 171

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT)

Court Procedures Rules 2006 (ACT)

Magistrates Court Act 1930 (ACT)

APPEAL AND NEW TRIAL Appeal from Magistrates Court — Assessment of damages from motor vehicle accident — No challenge to finding that plaintiff's evidence unreliable — Challenge to adequacy of award for numerous heads of damage — no issue of principle

Mossop J

Introduction

1 This is an appeal from a judgment of the Magistrates Court given on 30 October 2015. The Magistrate was dealing with an assessment of damages arising out of a motor-vehicle accident which occurred on 18 May 2010. The hearing of the claim took place over three days in June 2014. The magistrate ordered that judgment be entered in favour of the plaintiff in the sum of $30,880. The appellant, who was the plaintiff below, has appealed from that decision.

2 The appeal is brought as of right under s 274 of the Magistrates Court Act 1930 (ACT). Such an appeal is by way of rehearing. The relevant principles to be applied are set out in Urbaniak Bak v Prail [2014] ACTSC 171 at [51]–[54]. Having regard to the delay between a hearing of the case and the magistrate's decision I need to approach the appeal in the light of the principles summarised in Klobucar v The Queen [2014] ACTCA 6 at [25].

3 For convenience I will refer to the appellant as the plaintiff and the respondents as the defendants.

4 The plaintiff claimed that as a result of the motor vehicle accident he had been unable to take up employment at a restaurant where he would have earned in excess of $1000 per week. A significant issue at trial turned upon whether or not he had in fact been employed in that position prior to or on the day of the accident. There was also a significant issue about the extent of injuries which he had suffered having regard to the difficulties encountered by the expert retained by the defendants in assessing the plaintiff and the failure by the plaintiff to disclose his earlier history of injuries. The magistrate's assessment of the case was significantly influenced by his conclusion that the plaintiff's evidence was unreliable, a conclusion which was not challenged on appeal.

Grounds of appeal

5 The grounds of appeal that were pressed at the hearing of the appeal alleged that the magistrate erred in the following respects:

i. Omitting from the judgment amount of damages the sum of money paid by the Respondents insurer, on behalf of the Respondent, to the Appellant, being $4,909.00, on account of out of pocket expenses incurred by the Appellant as a consequence of injuries suffered as a result of the Respondent's negligence.

ii. Awarding manifestly inadequate general damages to the Appellant.

iii. Finding that the Appellant's injury was for a closed period of no more than about 18 months

iv. Assessing general damages (and interest), past out of pocket expenses (and interest thereon), future out of pocket expenses, past economic loss (and interest thereon), future economic, and past and future domestic assistance damages by failing to give any weight or by giving insufficient weight to the evidence of:

the Appellant's lay witnesses;

the Appellant's treating doctors;

Dr McNicol and Dr Stubbs;

the Centrelink Job Capacity Assessment

v. Finding that there was no evidence as to what employment might have been available to the appellant for the period of his residual capacity for work.

vi. Failing to give proper weight to the evidence that the appellant was picking up supplies relating to his employment or potential employment on the day of the accident and, as a consequence, making an inadequate award for economic loss.

vii. Discounting the award made for past economic loss and awarding a buffer based upon a finding it was improbable that employment would be available to the Appellant that would meet his residual capacity for work as assessed by the Centrelink Job Capacity Assessment

viii. Preferring the evidence of Mr Kazanc Senior over that of the Appellant and Mr Shukru Kazanc (‘Mr Kazanc Junior’) in relation to the Appellant's employment at the Turkish Pide House in Jamison;

ix. Failing to properly consider the evidence of Vivien Schraeder [sic] in relation to the domestic assistance the Appellant required, and, as a consequence, made an inadequate award for gratuitous assistance.

6 The plaintiff contended that although the magistrate's significant delay in delivering judgment does not give rise to a suspicion of error in all of the findings it does mean that additional scrutiny is warranted where there has been a failure to give specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal.

The decision below

7 The claim arose out of an accident on 18 May 2010. The plaintiff had come to a stop at the intersection of Erindale Drive and Ashley drive, Monash in the Australian Capital Territory when the car driven by the defendant collided with the rear of the plaintiff's vehicle.

8 The hearing took place on 2, 3 and 4 June 2014. In addition to the plaintiff himself, the following lay witnesses were called in the plaintiff's case

• (a) Mehmet Kazanc (‘Mr Kazanc Senior’) — a chef at the Turkish Pide House;

• (b) Vivian Schrader — the plaintiff's friend and carer;

• (c) Sam Al Hassan — the plaintiff's friend who assisted him at the scene of the collision; and

• (d) Shukru Kazanc (‘Mr Kazanc Junior) — the manager of the Turkish Pide House.

9 The only lay witness called by the defendant was the defendant himself.

10 Expert medical evidence was in the form of medical reports prepared by Dr David McNicol, orthopaedic surgeon, and from Dr Geoffrey Stubbs, orthopaedic surgeon. Each of the doctors had prepared three reports. The first two of Dr McNicol's reports was prepared at the request of the plaintiff's solicitors but the third was prepared at the request of the defendant solicitors. Each of the reports of Dr Stubbs were prepared at the request of the defendant's solicitors. Dr McNicol was called to give oral evidence by the plaintiff and was cross examined. Dr Stubbs was called by the defendants and was cross examined.

11 1255 pages of documents were also tended in two folders. These largely comprised the plaintiff's past medical records. At the conclusion of the hearing on 4 June 2014 his Honour reserved his decision. He delivered it on 30 October 2015.

12 His Honour's reasons extended over some 219 paragraphs. The general structure of the judgment was to set out and analyse the evidence given by each of the lay witnesses and then describe and assess the medical evidence. The medical evidence comprised the documentary evidence of the plaintiff's treating doctors as well as the medico-legal evidence provided by Dr McNicol and Dr Stubbs.

13 His Honour then returned to assess general damages. His assessment of general damages extended over 19 paragraphs. Because the evidence of the medical practitioners was, in this case, largely dependent upon what they were told by the plaintiff, his Honour's assessment of general damages involved his findings in relation to the reliability of the evidence given by the plaintiff of his experience of pain, its severity and its impact on his enjoyment of life. Importantly, his Honour made the following adverse finding about the plaintiff's evidence and the reliability of his reports to doctors:

189. Accordingly, the Court must make an assessment as to the truthfulness and reliability of the plaintiff's evidence. In this plaintiff's case, I am satisfied that he was a generally unreliable witness who gave false or misleading evidence and who was prone to a great deal of exaggeration. Being conscious that this is a serious finding to make, I have set out in great detail the plaintiff's oral evidence and the content of documents either recording statements previously made by him, authored by him or signed by him.

190. In reaching this conclusion, I have had regard to the plaintiff's demeanour in the witness box, a number of instances of evasion and prevarication, and instances of his failure to be entirely frank. In addition, I have had regard to his clear untruthfulness when asked by Dr McNicol to recount any past accidents and injuries. I do not consider it necessary that I detail each instance of the matters to which I referred. In my view, they are readily discernible from my recounting of the plaintiff's evidence above, and particularly his cross examination, and the history of his attendances on medical practitioners. Counsel for the defendants detailed many of the matters submitted as adversely affecting the plaintiff's credibility and submissions. I consider that all the criticisms made are valid.

191. Accordingly, unless an aspect of the plaintiff's evidence is corroborated by other credit...