POPA v JACKSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, PRIESTLEY and MCHUGH JJA 16 March 1988, 16 March 1988 [1988] NSWCA 116 Appeal — reasons for decision at first instance — absence of reasons sufficient to enable parties to know basis of decision- appeal allowed and new trial ordered. ORDERS (1) Appeal upheld; (2) Cross appeal struck out; (3) Judgment below set aside; (4) New trial ordered limited to damages; (5) Costs of the first trial to be costs in new trial; (6) Respondent to pay costs of the appeal and to have a certificate under the Suitors Fund Act in respect of those costs. Priestley JA Regrettably the reasons for the judgment from which this appeal is brought are completely unsatisfactory. In a case heard before his Honour Godfrey-Smith DCJ brought by a plaintiff who had been injured in a car accident and in which the defendant had admitted liability, a number of issues important to the decision of the case arose. Because in my opinion the only way that this appeal can end is in an order for a new trial, I will not do more than speak in general terms of what happened in regard to these issues. One issue was that of the credibility of the plaintiff. To take one example in regard to which that issue arose, the plaintiff was questioned by her own counsel in examination in chief about her driving of a motor car. Her answers, judging by the transcript, were very wary and evasive, even to her own counsel. The impression she gave in her evidence in chief was that she tried to drive but found it so painful that she did very little driving. When cross-examined on this topic her wariness and evasiveness, again judging by the transcript, became greater than they had been in answer to her own counsel. She eventually did give some evidence indicating that she drove a car more extensively than she had admitted previously in her evidence. Film which was shown to the Court showed her driving a car, apparently quite freely, on a number of occasions. The trial judge made no finding on this aspect of her evidence. It was not, of itself, of prime importance in the case except that one issue in the case was whether or not the accounts that she had given to a number of doctors that she had seen following the accident contained an element of deliberate fabrication. All his Honour said in regard to questions of credibility generally and the conflict of evidence between doctors who had provided reports for the plaintiff's legal advisers, which were tendered, and the doctor who was called as a witness for the defence, was, '""Where there is a conflict between the evidence for the plaintiff and the evidence for the defendants I prefer the evidence for the plaintiff." In the circumstances of this particular case that statement gives very little, if any, indication to this Court when, as it is bound to do, it embarks upon a rehearing of the case on appeal upon the record, the record including his Honour's reasons, all of the facts he found where there were issues of fact before the Court. 2 UNREPORTED JUDGMENTS A further issue in the case was the plaintiff's working capacity. She had worked for approximately two years, according to her evidence, up to a period about four or five months before the accident. Prior to that, again according to her own evidence, although she had been looking for work for approximately six years, she had not been able to obtain any, nor had she been able to obtain any work in the period since the November in which she was discharged from her previous job to the date of the accident. In these circumstances where it was necessary for his Honour to try and do the best he could to make an informed calculation, estimation or assessment on the evidence of the future economic loss caused to the plaintiff by the accident, it was necessary for him to make some findings of fact in regard to his view of her future working capacity. What he said was, "I am satisfied that she will continue to have material diminution of earning capacity for at least the next ten years." Somewhat later he said, "I am satisfied that her future earning capacity is materially reduced, if not completely, for some considerable time." These findings are vague and carry little information to a court such as this one which is charged with the responsibility of rehearing the case, on appeal, on the record, and subject to such findings of fact as the judge at the trial has recorded, when those findings of fact are based upon matters at the trial which give the trial judge an advantage over the Court of Appeal. The difficulty as well as the unsatisfactory nature of such vague statements are illustrated by the fact that when his Honour awarded $60,000 in respect of loss of future earning capacity, he gave no clue as to the way in which he arrived at this figure. It may be that he adopted a rule of thumb based on the fact that it had been agreed between the parties - and I am speaking now in round figures - that the plaintiff's wage loss from the time of the accident had been approximately $6,000 a year. On that footing it may be that it is fair to guess that his Honour, who mentioned the future of ten years as a period during which he may have found that her future earning capacity was completely taken away, simply multiplied his ten-year estimate by the $6,000 a year loss which had been agreed as the loss up to the date of trial. If that was his method it would be wrong for him to make his calculation in that way. If that was not his method then this Court has no clue as to the method he did adopt. Another issue before the Court was the plaintiff's psychiatric condition. There were here two questions: one was whether all or part of her symptoms were fabricated. The other was any psychiatric condition under which she suffered had been caused by the accident. His Honour simply assumed that if there was a psychiatric condition, as he apparently found, and as he was entitled to find, it had been caused by the accident. But it does not seem to me that there was material before him to justify his concluding that the extent of the psychiatric condition which he was including in his assessment of damages, was attributable to the accident. She may well, on the evidence, have had some or all of the symptoms which she later displayed, prior to the accident. His Honour made no finding in this respect. The issues I have mentioned were important to the decision of the case before his Honour. A case of that kind is subject to a right of appeal to this Court. The parties are entitled to be able to come to this Court and argue the case on a set of facts apparent from the reasons of the trial judge sufficient to enable this Court to carry out a reasonable approach to its duty of hearing the appeal. No such findings either appear in his Honour's reasons or are reasonably deductible from those reasons. URJ POPA v JACKSON (McHugh JA) 3 From the time of the decision in Pettitt v Dunkley in this Court there have been a number of cases in which it has been said that when the reasons of the trial court judge are as deficient as the reasons are in the present case there has been an error of law in the Court below in its failure to produce proper reasons. That seems to me to be abundantly the position in the present case. On the material before the Court the Court cannot properly carry out its obligation to deal with the appeal as a rehearing. It cannot possibly itself assess the damages because vital findings concerning the credibility of the plaintiff are not available to it. The only way of dealing with the matter that I can see is that there should be a new trial. In speaking in the somewhat general way that I have done about the issues that were before his Honour, I have borne in mind that it is undesirable that the new trial be affected by what the trial judge might think were the views of this Court on factual matters. It is perhaps unnecessary to say it, but I add that I have not been able to form any satisfactory views on factual matters in my attempt to deal with the appeal papers in this case. The plaintiff may or may not have a case as good as that which the trial judge thought it was. I simply do not know. In my opinion the appeal should be upheld. There should be an order for a new trial limited to the issue of damages and the respondent should have a certificate under the Suitors Fund Act. Hope JA I agree. McHugh JA I agree. HOPE JA: The orders of the Court are that the appeal be upheld, the cross-appeal be struck out. Judgment below set aside. a new trial is ordered limited to damages. The costs of the first trial are to be costs in the new trial. The respondent is to pay the costs of the appeal and to have a certificate under the Suitors Fund act in respect of those costs. Although it is entirely a matter for the District Court, it does seem to be an appropriate case where the expedition of a new trial should be considered. Counsel for the Appellant: R. McLOUGHLIN Counsel for the Respondent: M. McAULEY Solicitors for the Appellant: J. MULDER Solicitors for the Respondent: RADIN and ASSOCIATES