BRIDGES v GRANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 13, 26 November 1991 [1991] NSWCA 32 NEGLIGENCE — JUDICIAL KNOWLEDGE — INFERENCE — NO QUESTION OF PRINCIPLE Clarke JA. At the commencement of the hearing of this appeal counsel for the appellant sought leave to add two additional grounds of appeal. They were: 1. The trial judge erroneously took judicial notice of matters not within the common knowledge of members of the community. 2. The trial judge erroneously drew an inference from the fact that counsel for the respondent asked a question which was objected to and rejected. The respondent opposed the application essentially upon the basis that, as the submissions of counsel had not been recorded in the transcript and no additional evidence had been put before the court, the new grounds, which had been spelt out in more detail in the appellant's written submissions, were bound to fail. The court reserved its consideration of this question until delivery of the judgment. In my opinion the objection to the amendment means no more than that the grounds may fail for want of proof. It seems to me that properconsiderations of justice require that the appellant be permitted to raise these matters and I would grant the application. In essence these grounds do no more than direct attention to what are said to be specific errors which pervaded his Honour's reasoning process and led to the findings which were challenged in the original grounds of appeal. In those grounds the appellant contended that his Honour erred in finding that the respondent continued to suffer from injuries which he received in the accident, the subject of the claim, beyond 2 January 1976; that his Honour erred in finding that the respondent had suffered an impaired earning capacity in the future and, finally, awarded to the respondent excessive damages for impairment of earning capacity and general damages. The accident occurred on 17 December 1975 when the respondent was aged 9. At the time the respondent had been a back seat passenger who was restrained by a seat belt. Following the accident he was admitted to the Mona Vale District Hospital and on examination he had a graze/burn of the upper chest and the right neck that in the opinion of Dr Genevieve Cummins was consistent with seat belt trauma. She commented, in a report of 5 March 1976, that initially he had some pain on movement of the neck but this later settled and after being under observation for two days in hospital he was discharged. On review on 2 January 1976 he appeared to have no residual limitation of movement of his neck and his superficial graze was healed. This description of the respondent's early injuries suggest that they were unremarkable. Notwithstanding at the trial which took place nearly 15 years later the respondent complained of continuing problem involving his neck. The trial judge, Mahoney DCJ, accepted the respondent's evidence and awarded him $57,500 2 UNREPORTED JUDGMENTS damages which includedthe sum of $25,000 general damages and $25,000 in respect of the impairment of future earning capacity. His Honour did not, however, allow anything for past loss of wages. It is convenient to deal initially with the amended ground which raises questions concerning judicial knowledge. The lynch-pin of the appellant's submissions was the statement by Isaacs J in Holland v Jones, 23 CLR 149, at 153, to the following effect: The only guiding principle — apart from Statute — as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court "notices" it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not "general" but "particuar" facts. As to "particular" facts, event the judge's own personal knowledge is not to be imported into the case ... To import knowledge of a particular fact in issue would be to import evidence in the strict sense regarding a matter as to which the court is supposed to have no knowledge whatever of its own. This is an authoritative expression of the general principle and it has been applied in numerous subsequent cases, for example, Saul v Menon, (1980) 2 NSWLR 314, per Moffitt ACJ, at 324-5. However, as the latest Australian edition of Cross on Evidence makes clear at p 3038, the court will also recognise facts which are notorious to a small part of the community or to a particular profession or trade, such as, conveyancers. (Re Rosher, (1884) 26 ChD 801.) In the present context there is another factor to be taken into account in determining whether his Honour erred. That is, that claimsfor damages for personal injury suffered as a result of, for instance, a motor vehicle accident, occupy, and have for many years occupied, a great deal of the time of the courts in this State. The barristers and solicitors who are involved in these cases and the judges who hear them encounter particular medical witnesses who, because the treatment of accident victims constitutes a large proportion of their practise or because they are qualified on a regular basis to give evidence for plaintiffs or defendants, regularly appear in the courts. It would, as it seems to me, fly in the face of common sense to expect that the judges before whom those witnesses have given evidence on many occasions may not have preconceived notions about the reputation or reliability of particular medical experts. As the High Court pointed out in a different context in Vakauta v Kelly, 167 CLR 568, at 570: The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (eg members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (eg those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injury cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the URJ BRIDGES v GRANT (Clarke JA) 3 expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v New South Wales Bar Association, [1983] 151 CLR 228, at 300).""Once it is recognised that a trial judge may have views about the eminence or reliability of a particular witness it does not seem to me to matter that he articulates those views whether during the running of the case or in his judgment. It may be otherwise if the judge were, for instance, to prefer the evidence of one medical expert to that of another solely on the basis that he had always previously considered one reliable and had never encountered the other. I do not need to explore that question in this case. As will be seen the court is only concerned, insofar as medical experts are concerned, with the expression of views held by a judge as to the eminence and experience of two medical practitioners. quot; ... in saying that I am motivated not by any suggestion that not much happened to him in the accident but that there does not appear to be that level of restriction of locomotion which would warrant hospitalisation for a couple of days. Although that passage does suggest that his Honour was expressing a conclusion based on personal knowledge the fact is that his Honour used it to form a conclusion adverse to the respondent. Although, as the appellant's counsel pointed out, errors in the reasoning process which quite clearly do not lead to the formation of a final conclusion nonetheless require that the reasoning process be examined closely I do not think in this case that it matters whether hisHonour went slightly beyond permissible bounds in the expression to which I have referred. The view he expressed simply did not lead anywhere. Similar considerations apply to the second matter about which complaint was made and that was that his Honour expressed opinions as to the effect of a marriage break-up on a 9 year old child. I find it difficult to believe that a judge would be found to have erred if he concluded that a marriage break-up had affected the psychological make-up of a child. On the other hand, if a judge uses knowledge of his own experiences to attribute particular consequences of a marital break-up to a child then, in the absence of evidence, it may well be that he will have transgressed. Whatever view be taken of that question I do not think it can be said in this case that his Honour used particular knowledge to form a conclusion which bore any significance in the decision making process. The third complaint is that his Honour used his observations of the respondent in court and in the witness box without pointing out to the appellant's counsel the significance of those observations and allowing him to deal with them. Before dealing with this and the next complaint, which raise questions of substance, it is convenient to deal with the fifth matter. In this respect the appellant said his Honour erred in expressing the view that Dr Hugh Barry was 'one of Sydney's most experienced orthopaedic surgeons in terms of years, at the very least,' and Dr John Grant had skills and eminence enjoyed by few who practised medicine which, as his Honour noted, 'has been readily conceded in all of the courts I have been acquainted with'. This challenge is without foundation in my opinion. No doubt the trial judge, who had practised for many years in the particular field, had views consistent with those which he expressed but I do not think that that expression of his views, either generally or in the context of the facts of this case, was out of place for the reasons I have earlier given. The fourth and fifth matters, to which I now return, concerned the following statements by his Honour: 4 UNREPORTED JUDGMENTS I find it significant that when the plaintiff left his box in the body of the court to come up to the witness box and similarly when he left the witness box to resume his position in the court, there was a marked stooping and twisting of his carriage. That may well in part be explained by some form of rather inadequate physical self-disciplining but when I take it into account in the light of all the evidence, I am satisfied that in no small measure it is also as a result of the injuries which this young man sustained. ... I think it is realistic of me to apply the knowledge of the affairs of the world that tall, quite slim people perhaps do not have that body carriage that more robust members of the community usually have and that, all in all, and doing the best I can on all of the medical evidence, in no small measure that has been due to this seat belt injury .... These observations were not unimportant for they were considered by his Honour to be relevant on the question of his capacity to earn income as evidenced by his later statement: I have already commented upon the fact that the plaintiff seemed to be stooped and bent in his movement and in his posture in the witness box, and have indicated that there are limitations upon his general availability on the open labour market. Whatever significance was accorded by his Honour to the respondent's posture on the economic aspect of this case there is no doubt that his Honour regarded that posture, which he regarded asabnormal and accident caused, was of importance and to be taken into account in the assessment of damages. In reaching that conclusion I have understood the word "that" in the phrase "in no small measure that" to refer to the stooping and twisting of which his Honour earlier had spoken. This was the construction placed on the relevant passage of the judgment by counsel and it seems to me the only sensible one. By no stretch of imagination could his Honour properly have based a finding of a causal connection between injuries received in an accident in 1975 and a stooped and twisted posture in 1989 upon his judicial knowledge of the affairs of the world. Unless such a causal nexus be proved by evidence such a finding was simply not open to Judge Mahoney. Accordingly it is necessary to examine the medical evidence before the court. Bearing in mind the fact that the respondent's complaint was of a cervical disability Dr Barry's statement that he holds his head and neck normally would tend to be inconsistent with the judge's findings. Dr Grant found no relevant abnormality on examination and Dr Quain, whom his Honour seemed to accept, found that, 'in his cervical spine there was a normal posture'. Dr Black, who was called by the appellant and whose conclusion the judge rejected, did not advert expressly to posture but found no relevant abnormality. In summary there simply was no evidence of an abnormal posture or of a causal connection between the accident and such a posture. As I have earlier indicated his Honour was not entitled to reach the conclusion he did in the absence of such evidence and it follows that he was in error in this respect. I will leave for the moment the consequences of this conclusion. The second added ground of appeal related to a question asked by the respondent's counsel during the examination in chief of the respondent which was as follows: Q. I believe on 18 November 1985 you were admitted to Macquarie Hospital at North Ryde as an in patient? URJ BRIDGES v GRANT (Clarke JA) 5 That question was objected to, for obvious reasons, and rejected. Thereafter counsel for the respondent made no attempt to prove that the respondent had been admitted to the hospital at the time in question. It follows that there was simply no evidence on the issue and his Honour was bound to put it out of his mind. His Honour did not, however, do this. Instead he drew from the fact that the question had been asked the inference that the respondent had indeed been admitted to Macquarie Hospital at North Ryde as a patient on 18 November 1985. There was no basis for doing this. Once the question had been rejected his Honour ought to have proceeded as if it had never been asked. To decline to do this but to infer that the question had been answered 'Yes' is to disregard the rules pursuant to which litigation is conducted in this State. It was submitted that no consequences flowed from this error for his Honour did not draw any conclusions from the respondent's admission to hospital. That could well be so although I must confess that I have found his Honour's statements on this matter somewhat unclear. It is, however, unnecessary to explore this question further for the earlier error regarding the respondent's posture alone vitiates his Honour's assessment and requires that the judgment be set aside. Although there are a number of difficulties in this Court reassessing the damages that is the course which must be taken by the court. Itwould, I think, be wholly undesirable that a case of this size be referred back to the District Court for re-assessment. His Honour accepted the respondent as a witness of truth and, having regard to the advantaged position of a trial judge, this Court should accept that conclusion. The respondent's complaints were that he had continued to suffer from some discomfort or pain in the neck from the time of the accident and was still suffering from it at the time of trial. He said that during his school years he had mostly noticed the pain when playing sport and found it difficult to head the ball when playing soccer. It would appear, however, that he did not seek any medical treatment for his neck problems until 1981 when he saw a general practitioner, Dr Howell. His report, which was dated 26 February 1984 and which was held by the respondent's solicitor, was not tendered in evidence and I infer would not have assisted the respondent. Neither was the report of Dr McFadden who next saw him tendered in evidence. The earliest report which was tendered was that of Dr Barry who thought he had a mild disorder. Whatever, therefore, his problems in the ten years following the accident it is difficult to accept that they were significant. The medical evidence was tendered to the court in the form of the reports of doctors. The trial judge had no relevant advantage in regard to this evidence and the court should analyse it for the purpose of reaching its conclusions. The respondent tendered the reports of three doctors, Dr Grant, who was a treating doctor and Drs Barry and Quain, who were qualified for the purpose of giving evidence in the case. The appellant tendered the report of Dr Black. Dr Grant found, on the first examination on 2 July 1985, that the respondent showed limitation of neck movement with discomfort on the limits of his range of movement but no neurological abnormalities and clearx-rays of the cervical spine. The doctor thought that he may have aggravated an underlying arthritic tendency but did not feel that active treatment was indicated although his symptoms tended to be chronic. In his second report Dr Grant said: 6 UNREPORTED JUDGMENTS The only abnormal findings are the complaint of neck discomfort on neck movement and some hypersensitivity in the right side of the neck to light touch. The doctor thought that the latter finding was difficult to explain for reasons which he then gave. When asked as to the causal connection between the accident and the symptoms of which the respondent complained the doctor said: Whilst initially ... he may well have suffered injuries of a ligamentous nature the present symptoms could just as well now be related to mild spondylitic process of a generalised nature otherwise it is difficult to explain the full clinical story. In his third report the doctor concluded that most of the respondent's symptoms were probably of soft tissue nature and thought they would eventually settle down. He then had an x-ray taken which, in his view, supported the conclusion that the symptoms were mainly caused by soft tissue damage. Dr Barry thought that the symptoms of which the respondent complained when he saw him were consistent with some mild disorder to the cervical spine but noted 'the cause of this is impossible to determine'. He found no abnormal clinical signs, thought no treatment was indicated, and said that 'he is quite fit for all normal forms of work and recreations'. Dr Black, whose reports the appellant tendered, was not impressed by the respondent and thought that any symptoms which had been caused by the accident had long since subsided when he saw him in 1987. The strongest support for the respondent came from Dr Quain who, in 1987, thought that the accident had left him with some chronic restriction of movement and, secondary to this, pain in attempting such movements. He also believed that no further improvement was likely and that no treatment was available. Although there is considerable support for the view that the weight of medical opinion failed positively to support the causal nexus between accident and the symptoms of which complaint was made many years later I have concluded that Dr Grant's opinions should be accepted. He was the treating doctor, he saw the respondent on a number of occasions, he questioned whether there was a causal connection and ultimately, as it seems to me, tended to the conclusion that the accident had caused some soft tissue damage. By the same token the doctor clearly did not believe that anything other than the complaint of pain on the limits of range of movement were associated with the accident. Many of the other complaints could not, in the doctor's opinion, be explained on a neurological basis and it may be that the respondent's approach to life, which is the subject of some discussion in the trial judge's judgment, has led him to focus his attention on aches and pains in his body. Whether that be so or not the proper conclusion is, in accordance with Dr Grant's views, that the respondent has a mild disability which will duly clearly up. In my opinion, the general damages appropriate for this condition is $15,000. I should emphasise that I have, in reaching my conclusions, rejected the opinion of Dr Quain. In my view it is out of accord with the opinions of the three other doctors whose reports had been tendered and no reason appears why his evidence should be preferred to that of Drs Grant, Barry and Black. Turning to the claim for impaired earning capacity, I observe that the trial judge rejected the claim for economic loss to the date for trial. The reasons which led his Honour to take that course seem to me to be correct and I say no more in this judgment than that I agree with his conclusion which, after all, was not challenged. The only thing I would add is that it appears to me from the evidence that the respondent had no enthusiasm for work and was much more interested URJ BRIDGES v GRANT (Handley JA) 7 in finding himself by, as he said, 'exploring music and art and so forth'. The reason which led his Honour to award an amount for the impairment of future incapacity was that he considered that the respondent did suffer from a physical disability which might impact on his earning capacity in the future and he thought that a sum of money should be awarded as a buffer to take account of that contingency and he assessed it in the sum of $25,000. My major difficulty with this conclusion is that the medical evidence which I have found acceptable does not suggest that the respondent is restricted in the work which he could do and, in any event, it is clear that the mild accident-caused symptoms will abate in the future. Quite apart from that consideration the respondent did not suggest that he wished, or was likely, to work in any area in which his neck symptoms might prove a handicap. He did not, for instance, indicate what work he was likely to pursue in the future. On the contrary when asked a question concerning the reasons why he left his earlier jobs he said 'But as I said part of the whole relevance is that I am trying to find myself and that is why. I am trying to explore music and art.' Where the situation is that the acceptable medical evidence establishes a mild disability of a limited duration which the doctors whose evidence I prefer consider does not impair his work capacity, and where the respondent himself does not suggest that within the near future he wouldbe likely to engage in work with which he would find difficulty because of his neck symptoms there is, in reality, no basis upon which to conclude that the respondent had established a disability from which he 'would or may suffer pecuniary loss' (see Graham v Baker, 106 CLR 340, at 347). I would accordingly conclude that the respondent did not make good his claim for compensation for an impairment of earning capacity in the future. The respondent is entitled to interest on the past general damages which I assess at $10,000 which, calculated at 4 per cent (2 per cent over the whole period) for 14 years amounts to $2,800. Adding the general damages, the interest and the agreed out-of-pocket expenses of $1,064.60 together results in a judgment for the respondent of $18,864.60. I propose that the following orders be made: (1) Appeal allowed. (2) Judgment of Mahoney DCJ of 23 May 1989 be set aside except as to the order for costs and in lieu thereof judgment for the respondent in the sum of $18,864.60 to date from 23 May 1989. (3) The respondent to pay the costs of the appeal and to have a certificate under the Suitors Fund Act in respect of those costs. Meagher JA. I agree with Clarke JA. Handley JA. I agree with Mr Justice Clarke. (1) Appeal allowed. (2) Judgment of Mahoney DCJ of 23 May 1989 be set aside except as to the order for costs and in lieu thereof judgment for the respondent in the sum of $18,864.60 to date from 23 May 1989. (3) The respondent to pay the costs of the appeal and to have a certificate under the Suitors Fund Act in respect of those costs. Counsel for the appellant: C T BARRY 8 UNREPORTED JUDGMENTS Solicitors for the appellant: GOVERNMENT INSURANCE OFFICE Counsel for the respondent: P E BLACKET 5 Solicitors for the respondent: TURNER FREEMAN