GAY WEFNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 5 September 1991, 5 September 1991 [1991] NSWCA 283 DAMAGES — Motor vehicle collision — assessment of liability out of pockets agreed at $1470.00 — trial judge (Downs DCJ) disbelieves plaintiff — enters judgment for defendant appeal — Held: (Meagher JA; Kirby P and Mahoney JA agreeing) (1) Having regard to the recorded agreement to an assessment, the trial judge had erred in entering judgment for the defendant.. Wilton vy The Commonwealth, Court of Appeal, unreported 21 March 1990; (1990) NSW JB 28; Silvas v Government Insurance Office of New South Wales Court of Appeal, unreported 28 May 1990; (1990) NSWLR JB 71 applied; (2) It was not possible for the Court of Appeal to proceed to reassessment in the circumstances; (3) New trial ordered. COSTS — suggestion of consent to allowing appeal for grievous error and retrial — declined — indemnity costs refused comments by Mahoney, JA on the desirability of the course adopted. Meagher JA In this case the plaintiff, Mrs Werner, claimed damages for injuries she said she had sustained in a rear end motor vehicle collision which occurred in Randwick on | February 1985. Although no admissions were made in the pleadings, when the case came on for hearing counsel for the defendant (the Government Insurance Office) announced that liability was admitted, and the matter proceeded for assessment only. His Honour found a verdict for the defendant and in a carefully considered judgment found that the plaintiff's evidence was without value, that the plaintiff was a person whose word could not be believed. He based this on various grounds, all of them ultimately having to do with demeanour. His Honour also found that the alleged symptoms complained of by the plaintiff were all subjective. Unfortunately, his Honour fell into error, and counsel for the Government Insurance Office has conceded that. The error seems to me threefold: The first and most important error is that his Honour did not appreciate that once a defendant admits liability in a regligence case that admission necessitates a finding of some verdict in favour of the plaintiff, ie that there has been some damage caused by the admitted negligence. This has been held on several occasions by this Court, and I would refer to the judgments of Wilton v Commonwealth of Australia unreported 21 March 1990, and Sivas v Government Insurance Office unreported 28 May 1990. The second error was this his Honour found that the symptoms complained of by the appellant were merely subjective. The bulk of them no doubt were; however, there was unchallenged evidence that some of her complaints were objectively verifiable, and diagnosed as such by her doctors. I refer in particular to swelling and muscle spasms. The third error into which his Honour fell was completely disregarding an agreed sum for out of pocket expenses, that agreed sum being in the region of $1,400. 2 UNREPORTED JUDGMENTS Somewhat unusually, therefore, we are in a situation where both the appellant and the respondent are agreed that the appeal must succeed. The only question of real difficulty is what flows from that fact. For the appellant/plaintiff we are asked to order a new trial. That is a course with the Court is traditionally reluctant to take, and which the Supreme Court Act requires us to take only as a matter of last resort. The defendant/respondent on the other hand asks us to substitute our own assessment. The submission is this may easily be done simply by taking the agreed out of pockets figure together with such sum as would justly compensate the plaintiff for the symptoms which can be objectively discerned. In doing this, the respondent has pointed out to us, we would be giving credence to the trial judge's finding based on creditability. However, attractive though that may be, the great difficulty about accepting the defendant's submission in this regard is that we do not know to what matters the agreed out of pocket figures related. They may have related to the matters which are covered by the objective symptoms and nothing else; they may have related in whole or in part to those symptoms which are purely subjective. We are not; in a position to know, and indeed counsel before us are not in a position to tell us. If this be so we are then in a situation where the respondent has in effect conceded the validity of some subjective symptoms, but we are unable to say what they are or what their gravity is, and in order to determine both their existence and their gravity a new trial would be necessary. In the light of this I am very reluctantly of the view that there must be a new trial. One other matter was agitated before us, and that is the question of costs. It is clear enough that if the appellant wins the appeal - and it is inevitable that she will - an order of costs for the appeal must be made in her favour. Her counsel has, however, asked us to take the unusual course of ordering those costs on an indemnity basis. That is because the appellant's solicitor wrote to the respondent's solicitor some time ago asking them to consent to the appeal being upheld and a new trial being ordered. On 18 October 1990 the respondent's solicitor replied, saying that he did not agree to the appeal being upheld and a new trial being ordered. Counsel for the respondent has pointed out to us that whilst it may have been unreasonable not to agree that the appeal should be upheld there was nothing unreasonable about disputing the necessity of a new trial. I agree with that, and clearly enough counsel for the respondent was not being unreasonable in asking us to make an order for assessment rather than an order for a new trial. For those reasons I should have thought that the appellant's application for indemnity costs ought to be refused. In my view the following orders should be made: 1. That the appeal be allowed. 2. That the orders made by his Honour be set aside. 3. A new trial be ordered on the question of assessment only. 4. That the respondent pay the appellant's costs of this appeal, and have a certificate under the Suitors' Fund Act in that regard. 5. The costs of the trial to abide the costs of the new trial. Kirby P I agree. Mahoney JA I also agree. This is not a case in which the admission of liability was ambiguous so as to raise issues discussed, for example in Sivas v Government Insurance Office (28 May 1990, unreported). The Government Insurance Office accepted that there is no problem arising from the effect of its admission. The second matter I would refer to is the submission that there should be costs on a special basis. It is, if I may say so, appropriate that the solicitor for the appellant should have sought to have the appeal brought to a conclusion AY WEFNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) without unnecessary costs being incurred. It is obviously proper for a solicitor to seek out ways of reducing the costs payable by his client. The extent to which that is to be elevated into a positive duty of a solicitor is something which may in some appropriate case have to be considered, but certainly it was commendable that he did what he did. Unfortunately, I do not think this is a case in which failure to adopt his suggestion should produce the order for indemnity costs that he has sought. I agree with what is proposed by Meagher JA. 1. Appeal allowed; Set aside the judgment of His Honour Judge Downs dated 9 March 1990; In lieu thereof, order that the proceedings be returned to the District Court for retrial on the issue of damages only; Order the respondent to pay the appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951; and Order that the costs of the first trial abate the outcome of the second. Counsel for Appellant: LA Levy Solicitors for Appellant: TG Hartman and Associates Counsel for Respondent: K Rewell Solicitors for Respondent: Solicitor for the Government Insurance Office of New South Wales