SAID KATRIB vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MCHUGH JJA 18 October 1988, 18 October 1988 [1988] NSWCA 77 DAMAGES — quantum — no question of principle. ORDER Appeal dismissed with costs. Samuels JA As the facts are fully set out in the judgment of his Honour Judge Staunton, which is the judgment under appeal, I need not repeat them. In short, the accident aggravated a pre-existing disc condition in the appellant's lower lumbar spine. The aggravation is said to have been a muscular and ligamentous one. There is no evidence that the accident caused any further damage by way of aggravation or otherwise to the pre-existing underlying disc pathology. The question for the learned trial Judge was the extent of the aggravation. There was no medical evidence which was capable, in my view, of clearly establishing this critical issue. The appellant himself gave evidence but he was strongly cross-examined upon credit and the learned Judge formed an unfavourable view of his credibility, saying, amongst other things: "I think he has attempted to blame the subject accident for all or most of his subsequent problems." The learned Judge himself referred to the difficulty of isolating the extent of any aggravation from the autogenous progression of the pre-existing condition. He awarded the appellant the whole of the out-of-pocket expenses: he said, "At the risk of being over-generous" I think, if I may say so, that he was over-generous, since the list of out-of-pockets includes items which seem to me to be related to treatment for the pre-existing underlying disc pathology and not to the aggravation However, it is not possible to infer from that act of generosity that the assessment of damages for pain and suffering and the like in the sum of $8000 should be increased. In the circumstances, I find it quite impossible to say that the learned Judge fell into any error, or that any element in his assessment of damages is subject to review by this Court. One other matter remains. Mr R A Smith, counsel for the appellant, very candidly pointed out to us that the learned Judge had no power to award the interest which he assessed, by dint of s35D of the Motor Vehicle (Third Party Insurance) Act 1942. However, no cross-appeal was filed and no complaint was made on this score by counsel for the respondent. I hasten to say I am not for one moment suggesting that he should have demurred to the inclusion of this small sum. Accordingly, I see no reason to delete it from the judgment. In my opinion, the appeal should be dismissed with costs. Kirby P I agree that the appeal should be dismissed with costs. I agree generally with the reasons given by Samuels JA. 2 UNREPORTED JUDGMENTS I suspect that any generosity which Judge Staunton exhibited in respect of the out-of-pocket expenses exhausted his generosity. I am not inclined to think that the $8000 general damages that his Honour awarded was generous. On the contrary, I would be inclined to think that it was on the low side. But the difficulty I have in approaching this appeal arises from the fact that it is for the plaintiff to show at the trial, and the appellant to show on the appeal, so much of his disabilities as are attributable to the injury upon which he sues. The difficulty presented to Judge Staunton was that the appellant at the trial was inclined to minimise his pre-existing disabilities. The original report of Dr Medhat Guirgis made no mention of a pre-injury disability to his spine and foot. When Dr Guirgis had his attention drawn to that pre-injury disability (for which he had seen the appellant) he adhered to the opinions which he had expressed earlier in ignorance of them. This was itself surprising. But he also said that in his opinion the effect of the subject injury: ......Was to inflict a muscle and ligament injury to the lower lumbar spine aggravating the effects of the pre-existing inherent instability secondary to the pre-existing disc pathology at the levels of L4-5 and L5-S1. The problem presented to the Court by this succession of reports is that they fail to dissect so much of the appellant's disability as can fairly be attributed to the subject injury. If, for example, the appellant suffered a serious aggravation of his lower lumbar spine disability that would warrant an award of general damages above, even significantly above, that which Judge Staunton awarded. But Dr Guirgis was not called to give oral evidence. His reports alone were tendered with their opaque language. Therefore, at the end of the case, Judge Staunton, as this Court, had to make the best of the oral evidence of the appellant and the written medical reports, including those of Dr Guirgis. I realise the advantages of disposing of cases such as this on medical reports. It is frequently economical and entirely suitable to do so But where, as here, there had been a mistake in Dr Guirgis' earlier report and then a failure to clarify the issues of etiology which remained even after the subsequent report, I believe that it was unsafe to proceed without oral testimony of the doctor to clarify the issues still in doubt. For, in default of such clarification, the result is that at the end of the appeal I am not convinced that the appellant has made out a case to show that the award for general damages which Judge Staunton made is so low or otherwise wrong as would warrant the intervention of this Court. T reach that conclusion without any sure conviction that the judgment entered in the case, had there been proper evidence, was the appropriate judgment in the matter. But this Court, like Judge Staunton, must act on the evidence. That evidence was Unsatisfactory. On it, the appellant failed to show a significant disability attributable to the subject injury. Accordingly, I agree that the appeal should be dismissed with costs. McHugh JA I also agree with the order proposed by Samuels JA and the reasons given by him. KIRBY P: The order of the Court is that the appeal is dismissed with costs.