MURPHY v EMBREY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MCHuGH JJA 5 August 1988, 5 August 1988 [1988] NSWCA 99 DAMAGES — quantum — no question of principle. JUDGES — there is a legitimate expectation induced by conventions of practice that judges will give reasons for their decisions without having to be asked for them. Samuels JA The appellant, who was born on 1 April 1963, was injured in a motorvehicle accident on 22 March 1985. Her action for damages came on before Judge Mahoney in the District Court on 16 March 1987. His Honour awarded the plaintiff a total of $7673.60 which included $98 for wage loss accrued to the trial, $1575.60 for accrued out-of-pocket expenses and $6000 for damages for pain and suffering, loss of amenities and the like. It is the last amount which is in contest, the appellant challenging it as being inadequate. The appellant was taken to hospital immediately after the accident and there at the Liverpool Hospital she was seen to have a swelling of the left knee and some tenderness of the ribs. X-rays disclosed no osseous lesion of the left knee or of the ribs. She was discharged home. She consulted her local doctor who referred her to Dr Peter Giblin, an orthopaedic specialist, who first saw her on 12 August 1985. He noted that an arthrogram had been performed which was normal but, having been told by the appellant that she had pain in her left knee exacerbated by kneeling, squatting and going up and down stairs, Dr Giblin suggested that an arthroscopy should be performed. This was carried out by Dr Giblin on 22 August 1986 and demonstrated post-traumatic chondromalacia patellae. Thereafter she attended Dr Giblin on one further occasion, he last seeing her on 19 January 1987 when she complained of continuing symptoms of pain in the knee and difficulty in using it in various ways which, in Dr Giblin's view, would persist for several years to come. Although percentages of functional disability are of very little use at common law, it is worth noting in this case that Dr Giblin's view was that she had at least ten per cent permanent loss of function of the knee which was more prone to soft tissue injury in the future than it was prior to the accident. It seems that the appellant's solicitors had sent her to another consultant surgeon, Dr Jed, who saw her in April 1986 and who thought that she could expect frequent aches and pains to last for quite a considerable time. Dr Jed saw her again in February 1987 and diagnosed considerable chondromalacia of the patella. The appellant herself said in substance that her knee ached on change of weather, it ached from time to time though not all day, that its condition was the same after the arthroscopy as it had been before it and that she had restriction in walking, kneeling, squatting and walking up stairs. She was, however, able to work, being one of the fortunate persons who actually have obtained work as a process worker in an entirely sedentary position. She also said that her situation 2 UNREPORTED JUDGMENTS could be summarised by saying that during winter from time to time she had some pain in the knee but in summer she had very little pain. She said that if she walked for long distances she had pain. A long distance turned out to be constituted by walking around a standard block or walking for ten or fifteen minutes. I must say I fail to see that there is anything seriously discreditable to the plaintiff in that evidence. The learned judge seems to have taken a somewhat pejorative view of the appellant which the written record of her evidence does not in my opinion at all sustain. He said, however, and quite rightly, that he did not think that she would have submitted to surgical intervention unless driven by pain and thus accepted that she had a traumatic injury to the left knee of the kind identified by Dr Giblin and that the pain was such, at least up to August 1986, that is, for some seventeen months after the accident, as to persuade her to have an arthroscopy. His Honour is not very clear, if I may say so, as to the view he took of the plaintiff's disabilities as she presented them at trial. He appears to have thought that the absence of evidence about her pre-existent state of health and the absence from the court of her general practitioner were factors which in some way rendered questionable the description she had given of her symptoms and their effect upon her. I confess I can see no basis for any such conclusion and it is not one which I am called upon to accept because of the advantages which are conventionally yielded to a trial judge who sees the witnesses. His Honour concluded that she had symptomatology "of a low order" and that her level of pain - and he carefully distinguished her threshold of pain - "is far less than that suffered by many chondromalacia patella patients who come before this Court." That, unfortunately, is not a comment which is illuminating unless some survey of various levels of pain which are suffered by such patients is appended to the reasons. It seems to me - and J add that although his Honour seems to have thought that the appellant's husband's evidence was unduly biased in her favour he was not cross-examined upon those parts of it - that the learned judge rather confused himself as to the conclusions of fact to which he ought to come by taking into account as matters critical of the plaintiff's credit aspects of the evidence incapable of having that effect. I make that comment bearing in mind, as I have already said, the advantages enjoyed by the primary judge. It is evident I think that the appellant's situation is fortunately not a serious one and she is able to work, but nonetheless she has, I would think, beyond question the condition diagnosed by Dr Giblin, she has submitted to a surgical procedure and thereafter she has continued to have some pain and discomfort, although not of a very high order, which, on medical evidence which was not challenged, is likely to persist at least for several years to come. On that basis in my view the sum of $6000 is inadequate and in my opinion should be increased to $12000 as representing a proper measure of the appellant's pain, suffering and so forth. Before leaving the case I would like to make one further comment. I leave out of account the legal obligations which require judges in certain circumstances to give reasons for their decisions and the consequences which may follow if they fail to do so. Apart from legal rules, however, ordinary conventions of practice are such as legitimately to lead litigants to expect that in cases of this kind the judge will give reasons for his or her decision. They should not be placed in a position of having to ask for reasons to be provided. In the present case voice recording was evidently available and there seems to have been no reason why URJ MURPHY v EMBREY (Hope JA) 3 the learned judge as succinctly as he pleased could not have provided the reasoning which led him to his conclusion. I do not for one moment suggest that the learned judge was activated by reasons other than those which seemed good to him but, as I am sure he would appreciate, if counsel are required to ask for reasons, it must seem to some that the request might irritate the judge and thus perhaps divert him from that resolute impartiality which all judicial officers are bound to maintain. A judge should not be requested to do what is, after all, his duty. In my view therefore the judgment and orders below should be set aside and judgment in the sum of $13673.60 substituted to take effect from 16 March 1987. The respondent should pay the appellant's costs of the appeal. Hope JA I agree. McHugh JA I agree. Hope JA The orders of the court are as proposed by Samuels JA. ORDERS Appeal allowed - judgment and orders below set aside and judgment in the sum of $13,673.60 substituted to take effect from 16 March 1987. Respondent to pay Appellant's costs of the appeal. Counsel for the appellant: J E ROWE Counsel for the respondent: A J LESLIE QC/MR SWEENEY Solicitors for the appellant: ROBERT A HARPER & CO. by agents FRANK M DEANE & CO Solicitors for the respondent: TURNER FREEMAN