ELDERING vy GOVERNMENT INSURANCE OFFICE NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and PRIESTLEY JJA 23 August 1989, 23 August 1989 [1989] NSWCA 74 QUANTUM APPEAL — trial Judge's assessment of plaintiff's condition arrived at apparently without sufficient consideration of significant medical evidence — possibility of too much weight being placed on other medical evidence — plaintiff's credibility to some extent in question — no alternative to new trial. ORDER Appeal allowed with costs; judgment set aside, save order for costs; new trial to be had, limited to damages. Priestley JA The principal ground of appeal in this case seems to me to be a good one and should lead to the setting aside of the judgment appealed against and to a new trial of the action in the district Court limited, of course, to damages. As none of the other grounds foreshadowed in the Notice of Appeal could, in the circumstances of this case, lead to any better result for the appellant when taken in association with this first ground than a new trial and as also the argument as it has developed has been almost entirely confined to what I regard as the principal ground of appeal, I will confine myself to that ground only. Also, because as it seems to me this case requires a new trial, I will limit what I have to say to the minimum necessary to explain why I think the appeal should be upheld. The appellant, the plaintiff in the proceedings below, was injured in a motor car accident on 28 May 1986 when she was twenty-eight. She was married with one child and working as a qualified nurse. Liability for the accident was contested at the trial and found in her favour. That matter is not in ques- tion in the appeal. The appeal is brought on the ground that the damages awarded to the plaintiff were too low. After the plaintiffs accident she had treatment from various doctors and it appears in June 1986 went to Dr Bentivoglio who is an orthopaedic specialist. He treated her, seeing her on a number of occasions. Towards the end of 1986 or at the beginning of 1987 he referred her to Dr Gleeson, an anaesthetist and specialist in the management of pain. When she first saw Dr Gleeson in February 1987 she was pregnant. One consequence of the pregnancy was that there was very little that could be done in the way of further medical investigation of the causes underlying her continuing pain and symptoms as she described them. Her second child was born on 11 September 1987. In her evidence she mentioned that during pregnancy there was exacerbation of a number of her symptoms but that that exacerbation resolved very shortly after the delivery of her second child. Following the birth of the child she returned to Dr Bentivoglio, seeing him on 26 October 1987. He said that she should again go to see Dr Gleeson which she did, the date of her first consultation with that doctor after the birth apparently being 30 November 1987. Thereafter he was in charge of various treatments which I will have to mention again later, he said that her next form of therapy would include diagnostic costo-vertebral 2 UNREPORTED JUDGMENTS blocks in the thoracic region and that "Her current condition is still of severe current unremitting pain in the thoracic spine". From her own evidence it appears that shortly after the writing of that report she went to Petersham Private Hospital where the treatment that the doctor had foreshadowed was carried out, this involving on her evidence considerable pain and not being particularly successful. The trial took place in March 1988. Judge Mitchelmore who heard the case formed an adverse view of the plaintiff in some respects. He accepted her in others as, for example, in regard to what were apparently some disputed factual issues in regard to liability. He said in several places in his reasons for judgment that he felt considerable weight should be placed on Dr Bentivoglio's assessment. In one passage he said that Dr Bentivoglio was the treating doctor and that it was unfortunate the court had not had an up-to-date report from him particularly one subsequent to October 1987. He then made a statement which is somewhat obscure to me so far as its meaning is concerned but which I think indicates that his earlier stated view that the plaintiff had exaggerated some of her experiences of pain led him to suspect that because the plaintiff was reported by Dr Gleeson as having spoken in stronger terms of certain symptoms than was recorded in Dr Bentivoglio's reports, that this is some way confirmed his feeling that the plaintiff was exaggerating her own symptoms. He then said that the doctors were not called and in the light of an assessment of the reports and his view of the plaintiff's evidence, he felt considerable weight should be placed on Dr Bentivoglio's assessment. When one turns to the latest report of Dr Bentivoglio it is notable that although the report was dated 18 February 1988 the doctor made it clear that he had last seen the plaintiff on 26 October 1987. It was in that report that he mentioned that he felt she should return to Dr Gleeson to carry out investigations of the kind that could not be carried out during her recently completed pregnancy. Without reciting the details of Dr Bentivoglio's report it is enough to say that it indicates an opinion formed necessarily as at 26 October 1987 showing a more optimistic prognosis for the plaintiff than that which was later expressed by Dr Gleeson. Indeed, when one turns to Dr Gleeson's report, the contrast between it and Dr Bentivoglio's is quite significant. Dr Gleeson recorded that, following the birth of her second child, the plaintiff's thoracic pain had worsened and that any exercise or movement could trigger off quite severe episodes of pain. He gave some other details and continued: "On examination at this visit" - that being a reference I think to 30 November 1987 - "she was extremely sensitive and had severe pain to palpation all the way along the right side of the thoracic spine, but particularly severe at T12 and T7" and after mentioning another symptom he said that he had no doubt %XS5 that the pain that she was suffering was totally due to the accident of May 1986. He said that her prognosis was, in his belief, one of quite severe pain for many years to come, and he went on to give some further detail of what was quite a gloomy view for her future. The problem is the present case is that there does not seem to me to be any indication in the trial Judge's reasons of his having considered the force and effect that he should give to Dr Gleeson's report. His reasons convey to me quite strongly that he thought that he should accept Dr Bentivoglio's view, but in saying this did not take into account that Dr Bentivoglio, to the extent that he could be called the plaintiff's treating doctor, had ceased to be such for any significant purpose, at the commencement of her pregnancy at the beginning of URDERING v GOVERNMENT INSURANCE OFFICE NEW SOUTH WALES (Priestley JAB 1987, had apparently seen her only once after her pregnancy, in October, and had not seen her at all between then and the trial; nor does he appear to have taken into account that Dr Gleeson's report dealt with the period after Dr Bentivoglio last saw the plaintiff during which, if anybody could be described as her treating doctor, Dr Gleeson would most aptly fill the description. This does not seem to me to be a case where it can be said that the trial Judge, being left in the position of having a number of medical reports before him, without any of the doctors being present for cross-examination, and doing the best he could in trying to assess the weight to be given to the differing opinions in the reports, has done substantially that, without any evidence of error being apparent in his method. Here primacy appears to have been given to medical opinion which was not up to date at the time of the hearing, without any apparent weighing of the effect of Dr Gleeson's later, and very relevant, evidence, as against Dr Bentivoglio's evidence concerning an earlier period. There was other medical opinion in the case which, when examined, may fortify the view that I am expressing, but I will not go to it because the contrast between both the evidence of Dr Bentivoglio and Dr Gleeson and the ways in which the trial Judge treated their evidence, seems to me to show sufficiently that the trial Judge did not do what he should have done in regard to Dr Gleeson's evidence and lost the advantage that he could and should have had by weighing that evidence in light of all the other evidence. The result of the view I have formed is that I do not think that the trial Judge's assessment of various aspects of damages was arrived at in light of a proper appreciation of the medical situation of the plaintiff. That being so it is necessary for his judgment, in my opinion, to be set aside. That would leave the question, if it were to be contested, whether this Court should itself embark upon a re-assessment of the damages aspect of the case or return it for hearing by way of new trial in the District Court. The Court, in the course of argument, indicated that it thought a retrial, in the particular circumstances of the case, was really the only appropriate course to follow. As I understood them, both counsel acquiesced in this view once it was indica- ted what was the basis for the Court's reason for thinking the judgment should be set aside. Nevertheless it is probably proper to mention very briefly the reason for the view that a new trial, rather than a re-assessment, is the appropriate result. The Judge's assessment of the damages was plainly affected by his assessment of the plaintiff's credibility. His assessment of credibility, upon a reading of the transcript, appears to have been affected both by evidence given by the plaintiff in respect of the period before the birth of her second child, and also the period following it. In regard to that latter period I do not think the trial Judge had reached a proper appreciation of the medical evidence. His assessment of the plaintiff's credibility, to the extent that it was influenced by an incomplete appreciation of the period from November 1987 to March 1988 may be flawed. Indeed, his not having considered the full effect of the evidence could also have flawed his final assessment of the plaintiff's credibility for the whole period. On the other hand his assessment may have been correct. It is impossible for this Court to know, and it is impossible for this Court, after setting aside the judgment, to form a view of its own simply on the record, of what weight should be given to the matters that affected the trial Judge. 4 UNREPORTED JUDGMENTS It follows that a new trial seems to be the only result of the appeal; in my opinion the Court ought to make orders accordingly. Samuels JA I agree. 5 Mahoney JA I also agree The order of the Court, therefore, is that the appeal is allowed with costs. The judgment below is set aside, save for the order for costs, and a new trial is ordered, limited to damages. Counsel for the Appellant: C Callaway QC and G Walsh Solicitors for the Appellant: Gulley, Helene and Bullock 15 Counsel for the Respondent: I Wales Solicitors for the Respondent: JM Crestani, Paramatta253545