ZENATI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLY and CLARKE JA 30 July 1991, 7 August 1991 [1991] NSWCA 294 MOTOR VEHICLE INJURY — LOWER BACK INJURY Appeal from District Court — Motor vehicle injury — Plaintiff suffered lower back injury — Appeal on several grounds — Held: (1) Judge had erred in finding as to what plaintiff had said in evidence as to extent of her recovery; (2) New trial necessary; and (3) Not necessary to deal with other grounds of appeal. Mahoney JA On 20 October 1985 Mrs Anna Zenati was injured in a motor vehicle accident when a vehicle ran into the back of the vehicle in which she was a passenger. She suffered minor injuries of various kinds. The major matter of which she complained with pain in her neck and her lower back and in her right leg. In March 1990 her claim against the Government Insurance Office of New South Wales came before his Honour Judge Downs. The defendant admitted liability. On 8 March 1990 his Honour awarded the plaintiff $11,517, made up of $10,000 for general damages and $1,517 for out-of-pocket expenses. Mrs Zenati has appealed to this Court against his Honour's judgment. The grounds of appeal, variously phrased, suggest three things: that the damages awarded were appealably inadequate; that his Honour erred in law in failing to give sufficient reasons for his judgment; and that the trial miscarried because of, as it is now conventionally described, apprehended bias on the part of the learned judge. In my opinion the judgment should be set aside and there should be a new trial upon the first ground. It is not necessary, in order to determine this issue, to detail the facts at length and, as a new trial is to be ordered, it is expedient that I not do so. It is sufficient to say that -the essential or one of the essential injuries which, on the plaintiff's case, she suffered in the accident was an injury to her lumbar spine. One of the medical witnesses, Dr Caspary, found that, as the learned judge said, she had "pre-existing degenerative condition of L3, L4, LS levels of her spine". And, it was suggested, the accident had exacerbated that condition or, at least, had caused her to have symptoms from the condition which previously she had not had. There was, at the trial, a contest as to the extent of the symptoms which she had as the result of the accident and the period for which she had had them. The defendant's case was, in substance, that such symptoms as she had were the result not of the accident but of the ordinary degenerative processes to which she would in any event have been subject and that, if and insofar as she had had symptoms which resulted from the accident, they had substantially ceased. The plaintiff's case was, more or less, to the contrary. 2 UNREPORTED JUDGMENTS The learned judge, in assessing general damages, favoured the submissions of the defendant. But, in the course of doing so, he said: "Following the incident she remained in bed at home for a few weeks and was given care and attention by her family and neighbours.... After a couple of months and some physiotherapy over a period of a few months, she was a lot better but she had an exacerbation of pain in September 1986. Following this exacerbation she was referred to Mr Caspary. She was found to have pre-existing degenerative condition of L3, L4, LS levels of her spine and he considered and I quote, 'She may have some pains in this area and some numbness from time to time but this should not cause her any major disability'. She said in evidence that sometimes she had had trouble or difficulty doing her housework but that she had been all right for the last six months." (Emphasis added). His Honour, in assessing general damages, acted, I think, upon that assessment of the plaintiff's condition. In my respectful opinion, this statement of what the plaintiff had said in evidence was not correct: the plaintiff did not say "that she had been all right for the last six months". In her evidence in chief she was asked "what the pain was like" since November 1986. She said that her back was "not very good", though "not all the time" and that she took "tablets for backache" "sometimes for a day, sometimes I take two. Sometimes I never take any". In a week, she said, she would average "maybe eight". She said that, since 1986, her neck "'is stiff, not really painful, just today you know it is stiff. The other way it is all right", "more stiff than painful now". She was then asked about the pain in her right leg. She said, "I can't tell really properly. Sometimes it might be two months. Sometimes it may be one week." She was then asked certain questions from which, it may be, the learned judge took that which he set forth in his judgment: "Q. The pain that you are now getting today, for how long has it been like that in respect of your back? Has it been the same for some time now? A. Now it is a couple of weeks. Q. You have had good days and bad days? A. Good days and bad days, yes. Q. For how long has it been like that? A. Now say maybe six months it is all right and now I don't know, maybe for six months it is really good and then after a couple of weeks it is bad. Q. Do you still have problems standing? A. Yes. Q. Going up stairs? A. Yes, up stairs. Q. The pain that you get, how would you describe it, in your back? A. Not very heavy but you know, just something. Q. Do you do work around your house now? A. Yes. Q. Do you have any trouble doing that work? A. Some-times, yes and sometimes no. Q. How often do you have trouble doing your housework? How often? A. I really don't do housework because I can't do heavy jobs. Q. Why not? A. Because I can't. Q. Why not? A. I can never put my hand up to do the dusting but before I did the washing and now I can't. Q. You don't do heavy housework now? A. No. Q. Why not? A. Because I can't. Q. What is the problem? A. The problem is I can't so on the top of a chair to go up, I can't do that because of my neck. UIENATI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB Q. What about your back? A. Maybe I'd want to take a chair and I can't. Q. What happens to your back? A. Because my back won't carry me. Q. Who does that work now? A. Sometimes my daughter-in-law once a month. It depends. Q. What about the washing? A. The washing I do myself. I do the washing and my daughter puts it out." In cross-examination, it was suggested to her that she had complained about the symptoms to which she referred "only because you want to make a claim for financial compensation". That suggestion she denied. The error which was, in my opinion, made as to what the plaintiff had said in her evidence was central to the assessment of damages. That assessment must, therefore, be set aside. It is desirable, if possible, that this Court assess the damages and that the cost and delay of a new trial be avoided. But I do not think that this Court can properly assess the damages. There was, as I have indicated, an attack upon the plaintiff's credibility as a witness and this Court cannot satisfactorily determine the issue of credibility from the material now before it. There was also a substantial difference between the parties as to the plaintiff's medical condition at the trial. Two medical witnesses, Dr Segelov and Dr Perrett, were called and, to an extent, their evidence differed in respects which bear upon the assessment of the plaintiff's medical condition. There is, I think, no alternative but to order a retrial. This conclusion makes it unnecessary to consider the other grounds of appeal which were raised. The conclusion which I have reached upon the first issue makes it unnecessary to express any opinions upon the second and third issues. In my opinion, therefore, the judgment should be set aside. The proceeding should be returned to the District Court for retrial of the issue of damages. The defendant should pay the costs of this appeal. The defendant should pay the costs Priestley JA I agree with Mahoney JA. Clarke JA I agree with Mahoney JA. 1. Appeal allowed; Judgment below set aside. 2. Proceeding returned to the District Court for retrial of the issue of damages. 3. Defendant to pay the costs of this appeal and the costs of the first trial. Counsel for Appellant: M JOSEPH Counsel for Respondent: C BARRY Solicitors for Appellant: TURNER FREEMAN Solicitors for Respondent: SOLICITOR FOR GIO