WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, MAHONEY JA and ROGERS AJA 9 and 10 August 1989, 10 August 1989 [1989] NSWCA 234 Appeal from District Court — Assessment of Damages — Appeal upheld because trial judge acted on basis not appearing in evidence — General damages increased — No question of principle. ORDERS 1. Appeal allowed and judgment set aside. 2. Substituted judgment for the appellant for $15,000, such judgment to take effect from 9 November 1985. 3. Respondent to pay the costs of the appeal. Mahoney JA In 9 November 1985 the plaintiff was injured in a motor vehicle accident. He was then aged fourteen years. The defendant has not contested its liability to damages. On 18 May 1988, in the District Court at Forbes, his Honour Judge Mahoney awarded the plaintiff $7500 damages. The only claim was for general damages: the plaintiff made no other claim. The plaintiff has appealed to this Court on the ground that the damages are appealably low. The plaintiff's injuries were minor. In the report of Dr Laksito, which his Honour accepted, they were stated as: "Scalp laceration approximately 2 cm long in the left parietal area Puncture wound over the right patella Laceration of the left knee approximately 0.5 cm long Tender and bruised right 1st metacarpo-phalangeal joint Bruising and contusion over the left iliac crest." He did not lose consciousness. He was taken to Forbes District Hospital and steri-strips were applied to his head and knee. He was allowed to go home. The only injury of substance which has been in question in the appeal is that relating to the plaintiff's right knee. It is accepted that, prior to the accident, the plaintiff had hypermobile patellae. After the accident Dr Mutton, whose reports his Honour accepted, said that the plaintiff "seems to be suffering from bilateral chondromalacia of his patellae'". The plaintiff said that this had not prevented him engaging in his normal activities, including the playing of rugby football. But the result was that from time to time he suffered pain in the right knee. The length of the pain had been variously stated, by the plaintiff in evidence and to different doctors: his Honour adopted what had been told to Dr Mutton, namely, that it lasted about ten seconds. His Honour stated his relevant findings: "T find that plaintiff was affected, at the time of the mva, from an asymptomatic condition, which is renowned in orthopaedic circles to produce a condition of chondromalacia, that the mva probably induced the onset of symptoms from that condition, and that such onset came earlier in life than what it would have done without the intervention of any trauma. I also find, as Dr Mutton observed in Ex EI, that not only will plaintiff be free to continue with his chosen vocation but that it is unlikely he will require any specific treatment for this condition. I also accept his comment in Ex E1 that it 'is not possible to state the deleterious effect 2 UNREPORTED JUDGMENTS that the trauma' (of mva) 'has had on his patellofemoral chondromalacia'. At first blush this may appear to be a view inconsistent with the statement of attributability in Ex E3 but on more mature consideration I have taken Ex E3 to relate to the time of onset of symptoms and the extract from Ex El quoted immediately above, to relate to the level of pain and discomfort attributable to the mva, as opposed to the level of pain referable to the known consequences even without trauma, of hypermobility of the patellae." On this basis his Honour assessed the general damages as he did. The principles on which this Court must act have not been in contest. If the facts were as his Honour described them, then in my opinion his assessment would be within the bounds of a sound discretionary judgment and I would not interfere with it. His Honour acted on the basis that, before the accident, the plaintiff suffered pain from the condition of his right knee and that after the accident and because of it this pain had increased. His Honour did this because of, as he indicated it to be, the difficult process of construction of Dr Mutton's reports. And, in coming to his ultimate conclusion, his Honour changed what, I think, had been his first impression. However, Mr Greenwood for the plaintiff submitted that the facts are different. He submitted that there was no evidence that, before the accident, the plaintiff was suffering any pain from his condition. He submitted, in addition, that there was no evidence that the condition of the plaintiff's patellae was apt in fact to produce chondromalacia or what would or might be produced by that condition. If the assessment of the plaintiffs condition be approached strictly according to what appears in the material before the court, Mr Greenwood's submissions are substantially correct. There was no direct evidence that, before the accident, the plaintiff suffered pain from his condition. And there was no direct evidence that the plaintiff's patellae condition was apt to produce chondromalacia or when: Mr Greenwood pointed out that his Honour based his inferences from the reports upon what he saw as "renowned in orthopaedic circles". I suspect that the case was conducted before the learned judge on the basis that he was entitled to draw inferences, according to his own experience of these matters, as to what was likely to have been the condition of the plaintiff as to pain before the accident and as to what was apt to flow from the condition of the plaintiffs patellae had he not been injured. However, neither counsel before the court on appeal was at the trial and therefore this Court must act upon the basis that the appeal is to be determined strictly according to the evidence appearing in the appeal papers. In my opinion, therefore, the court must assess damages upon the basis that the plaintiff was free of any symptoms or "consequences" prior to the accident and that, as Dr Mutton ultimately opined, his present condition is the result of what happened to him in that accident. In addition, as Dr Mutton said, his condition will possibly deteriorate in years to come leading to the development of patellofemoral osteoarthritis. The court has been asked to reassess the damages. It is in my opinion in a position to do so. I would assess the damages, upon the basis of the facts as they are now accepted, at $15,000. In my opinion the appeal should be upheld, the judgment should be set aside, there should be substituted for it judgment for the plaintiff for $15,000, that judgment to take effect from 9 November 1985. The respondent should pay the costs of the appeal. Samuels AP I agree. URJ WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NSW (Rogers AJA) 3 Rogers AJA I agree. In my opinion the appeal should be upheld, the judgment should be set aside, there should be substituted for it judgment for the plaintiff for $15,000, that 5 judgment to take effect from 9 November 1985. The respondent should pay the costs of appeal. Counsel for the appellant: P H Greenwood. 10 Solicitor for the appellant: Palmer MacCallum and Akon, Forbes. Counsel for the respondent: Mr Barry. Solicitor for the respondent: Mr GJ Leeds, Parramatta.