GRHOVAC v GIO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and HANDLEY JJA 25 July 1991, 4 October 1991 [1991] NSWCA 129 APPEAL AND NEW TRIAL — Adverse comments of trial judge reflecting on plaintiff's credit — No evidence to support comments — Whether sufficient to disqualify judge on ground of apprehended bias — Whether failure by counsel to object waived plaintiff's right to new trial on ground of apprehended bias. held Appeal allowed and new trial ordered. The conduct of the trial judge disqualified him from hearing and determining the case. The evidence of ostensible bias in the reasons for judgment revived the plaintiff's right to challenge the judgment based on the judge's earlier conduct and also gave rise to a fresh basis for such a challenge. Jones v Dunkel (1959) 101 CLR 298 Vakauta v Kelly (1989) 167 CLR 568 Browne v Dunn (1894) 6 R67 Jones v National Coal Board [1957] 2 QB 55 Mahoney JA The facts are detailed in the judgment of Handley JA which I have had the opportunity of reading. In Hughes v Robert W Kirby and Ors (Court of Appeal, 27 September 1991, unreported) I expressed my view as to what, in circumstances here relevant, is the duty of a trial judge. I there said: "The defendant submitted that what his Honour said should lead to the conclusion that, in the mind of the postulated reasonable or fair-minded observer, his Honour was biased in the sense that he was influenced to decide against the defendant and to describe him as he did for reasons which had no basis in the evidence and has not been fairly put to him. To adapt the language of Toohey J in Vakauta v Kelly (1989) 167 CLR 568, '... his Honour's remarks would excite in the minds of the parties and in members of the public a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him...': at 584. See also Galea v Galea (1990) 19 NSWLR 263. The function of a trial judge is not limited to a colourless recitation of facts and conclusions. The form of a judgment is, within proper limits, for the individual judge: Martin v Green (1984) 1 NSWLR 148 at 157. He is entitled, in a proper case, to refer to facts or conduct which, in the public interest, require to be identified, categorised and, if necessary, criticised. The recent decisions dealing with what a judge may do do not suggest otherwise. His right to make observations in the public interest is a valuable one and should not be unnecessarily restricted. But it is, in my opinion, one to be exercised 'only on an occasion of sufficient moment, with considerable circumspection and with a proper sense of responsibility': Winters v Cross (1978) 1 NSWLR 616 at 624. See also McIntosh v Williams (1979) 2 NSWLR 543 at 552. If such a right is to be exercised, it should be exercised in respect of matters arising in the case before the judge and sustainable upon the evidence against the party to be criticised. And, in addition, a judge must not be, and what he says must not suggest to the 2 UNREPORTED JUDGMENTS reasonable bystander that he is, so affected by such matters and the criticisim of them that he is not able to "bring an unprejudiced mind to the resolution of the matter before him'. In the present case, the judge made observations concerning the plaintiff which indicated that he formed an adverse conclusion as to some aspects at least of what she had done. There was, it is accepted, little or no evidence to support those conclusions. Reference has been made to them in detail in the judgment of Handley JA. These matters were, in my opinion, matters of a kind apt to lead a judge to draw adverse conclusions as to the plaintiff's credit. The result therefore is that the reasonable bystander by whose reaction the matter is to be tested: Vakauta v Kelly (1989) 167 CLR 568; would apprehend that the judge had, or might well have, arrived at his conclusions as to the plaintiff's credit on the basis of matters which were not supported by the evidence. Her credit was of significance in his Honour's reasoning to the judgment which he gave. A judgment reached in this way should not, in the light of what was said in Vakauta v Kelly, be allowed to stand. I agree with the orders proposed by Handley JA. Meagher JA In this matter I have read in draft the judgment of Handley JA. I agree with it, and with the orders which he proposes. The plaintiff, Miss Grhovac, was involved in three motor car accidents in 1985-1986. She sued in respect of all three. Her action in respect of the first action was settled. In her action in respect of the second and third accidents his Honour Conomos DCJ awarded her verdicts consisting of her out-of-pockets and nominal damages. These appeals are from his Honour's judgment. In both the second and third accidents liability was virtually admitted. The sole ground of the plaintiff's appeal is the misconduct of his Honour in conducting the trial. In my view, this ground should be upheld. One example will suffice. In the course of her evidence Miss Grhovac said that after two of the three accidents she consulted her general practitioner, a Dr Bosniak. It was not suggested by the defendant that she had not done so, or that there was anything in the slightest suspect or improper in her so doing. Yet this elicited from his Honour the following comment: "She has been the recipient of compensation in days gone by and the same old doctors - I knew they'd never get a report out of Dr Bosniak either he and his wife... This is a brave Court. They used to live opposite me at Strathfield. I know them well. They both drive the latest Mercedes, they get them each year. I'm not blind... The latest, they way they live. My wife sometimes wondered what I was doing by comparison but I didn't tell her what goes on." In my view, these comments by his Honour are disgraceful, and display conduct which no plaintiff should have to endure. There was no evidence to support them; in any event, if there were, it would be irrelevant. Nor should a judge use his judicial office to make a public attack on an unrepresented person. What is worse, they suggest that the plaintiff should suffer detriment solely because a judge has a private conception of the inadequacies of her doctor. His Honour expressed a wish, which he suppressed, to send the papers to the Attorney-General. I think, for entirely different reasons from those which activated his Honour, that it is a pity he denied himself the opportunity. URJ GRHOVAC v GIO (Handley JA) 3 Handley JA This is an appeal by a plaintiff from a judgment of Conomos DCJ. The plaintiff sued to recover damages for personal injuries allegedly sustained in motor vehicle accidents on 28 July and 13 October 1986. His Honour found a verdict for the plaintiff in respect of both accidents and assessed general damages in each case at $500 and allowed a further $350 for out of pocket expenses. In the first accident the plaintiff was a passenger in a truck driven by a Mr Zarkovic Drago. The truck ran into the back of a Datsun car driven by a MrPetrovic Marko which had stopped to give way to a vehicle in a traffic round-about. The drivers of both vehicles were of Yugoslav descent. In the second accident the plaintiff was a passenger in the back seat of a Holden car driven by a Mr Mark Kalmnj which collided in an intersection with another car on its left driven by a Mr Ivan Spehar. Again both drivers were of Yugoslav descent. The plaintiff has appealed seeking a new trial limited to damages. The grounds of appeal were less than precise. However it quickly became clear that the appellant was submitting that the trial judge had so conducted himself as to give rise to a reasonable apprehension of bias. No objection was taken that this was outside the grounds of appeal. The appellant's submissions were based on the judge's remarks during the trial and the terms of his extempore judgment. The trial took place at Parramatta. The plaintiff had previously sued the GIO in the District Court at Sydney under her married name of Nada Curic claiming damages for injuries similar to those allegedly received in the later accidents. That action was settled before trial and the plaintiff received a significant sum of damages. The defendant ascertained these facts only a short time before the date originally fixed for the trial of the present proceedings before the same judge. It then applied for and secured an order vacating that hearing date with leave to arrange further medical examinations of the plaintiff. The case was again fixed for hearing, marked "part heard", on 12 December 1989. Despite this the transcript of the earlier proceedings and any documents then tendered were not included in the appeal book. It may have been to the advantage of the respondent for such material, if it existed, to be included. As it is the appeal must be disposed of on the materials before us. The defendant arranged further medical examinations during the adjournment but did not serve any medical reports on the plaintiff's solicitors as required by the rules of Court. The evidence commenced with a tender by counsel for the plaintiff, without objection, of the police reports of both accidents. The plaintiff then gave evidence. She arrived in Australia in 1971 having married in Croatia just prior to migrating. She separated from her husband in 1982. She gave evidence about her previous motor vehicle accident in 1985 and her resulting injuries. She then gave evidence about her second accident on 28 July 1986. Counsel for the defendant interposed at this stage saying: "This is all in the police report, I don't raise any objection here." The judge however indicated a wish that the evidence continue. She then gave further evidence about that accident, her injuries, and her treatment by Dr Bosniak. She then gave evidence about the third accident on 13 October and her subsequent treatment by or under the direction of Drs. Bosniak and Bannister. While the plaintiff was still being examined in chief his Honour cross-examined her about the two accidents asking her fifty-one consecutive questions. These w;re largely directed to the fact that the drivers involved in both accidents were of Yugoslav descent and the possibility of collusion. The plaintiff denied any prior knowledge of the other drivers. 4 UNREPORTED JUDGMENTS In cross-examination the plaintiff said that she stopped using her married name of Curic some four or five years before, following her divorce, and had then started to use the name of Grhovac. In the course of her cross-examination she said "I was pensioner. Self supporting pensioner. Yes I was." His Honour then intervened and said "No, taxpayer supporting pensioner madam. You are not supporting yourself, the taxpayer is supporting you. And has also provided you with a Housing Commission home as well... you are not self supporting. The taxpayer is supporting you." She was then further cross-examined about the injuries she sustained in the 1985 accident, the treatment she had received, and her symptoms. She was asked about the cost of her time at Westside Private Hospital, and her of treatment by Dr Bannister, and other medical practitioners. She said she returned to Yugoslavia for a visit in 1980, stayed about a year, and while there worked in a bookshop. On her return to Australia she had been unable to obtain employment and after her separation had gone on the supporting parents' pension. When her son attained sixteen she was no longer eligible for that pension and she had gone onto sickness benefits. In answer to questions from the judge she said she had settled her action arising from the 1985 accident for $16,000 clear. This happened after the second accident and before the second action was commenced. She said that in April 1986 three months before the second accident she had seen Dr Bannister and complained of sciatic pain, back pain and headaches. After the plaintiff had finished her evidence his Honour said: "Madam Interpreter, I want you to be interpreting everything now, because ''m going to have a few words to say. Housing Commission homes, supporting parents, straight onto sickness benefits, trips to Yugoslavia". Counsel for the plaintiff then tendered a bundle of medical reports relating to the 1985 accident, and three reports from Dr Bannister relating to the later accidents. The defendant called no evidence. His Honour then said: "Now [counsel for the defendant] this is what I'm going to do. There's a great deal of suspicion surrounds both these accidents but I can't act on suspicion alone... I cross-examined her and for me to come to the conclusion that she was fraudulent I would need you to satisfy me on the Helton v Allen onus. I don't think you' ve done that. So I will find negligence in relation to each of the two accidents, notwithstanding a great deal of suspicion... Now as far as I'm concerned she greatly exaggerates because she knows the system fairly well. She has been the recipient of compensation in days gone by and the same old doctors I knew they'd never get a report out of Dr Bosniak either he and his wife... This is a brave Court. They used to live opposite me at Strathfield. I know them well. They both drive the latest Mercedes, they get them each year. I'm not blind... The latest, the way they live. My wife sometimes wondered what I was doing by comparison but I didn't tell her what goes on. I know them well I'm going to give her her out of pockets for the first accident... she will get $500 for the first accident on top of that and she will get $500 for the second one.... and that's just for being in accidents which were highly suspicious. What do you say [counsel for the plaintiff]? Counsel: Your Honour - His Honour: Because I'm - you know I don't want to say any more but I was minded to send these papers to the Attorney General... Counsel: Just in relation to - URJ GRHOVAC v GIO (Handley JA) 5 His Honour: She waits until she settles the 1985 accident and then issues the proceedings and they are highly suspicious. Frankly I don't think they bear close investigation but it's not for me. I'm not that type of person." His Honour then delivered his reasons for judgment. He commenced by referring to the accidents as "very suspicious". He said: "She lives in Housing Commission accommodation at Waterloo. Until her son reached the age of sixteen years she was receiving the supporting parents' benefit. When her boy reached sixteen years of age she commenced on the sickness benefit. She had not worked in this country since at least 1980. In 1980 she returned to Yugoslavia for a year, where she worked in a book shop, but upon her return to this country she has not contributed one cent to the public coffers but has received the generous social service entitlements which this country has to offer." The plaintiff had given her address as 1212/249 George Street, Waterloo. His Honour may have known that this was Housing Commission accommodation but there was no evidence to that effect and the plaintiff was not asked about this matter. His Honour continued by referring to the 1985 accident and the earlier proceedings. He said: "She alleged in those proceedings injuries to the neck, her back, her head and her left shin. She listed as disabilities headaches, dizziness, pain in the neck, pain radiating into both arms and shoulders, pain radiating into her right leg and thighs, she claimed for a loss of earning capacity saying that she could not work even if she wanted to. She consulted that eminent specialist Dr Bannister who put her into one his private hospitals and an account was accrued to that doctor in the sum of $1,000. She went to physiotherapy and an account of $650 was produced. She had x-rays, she consulted Dr Buchanan, Dr Hu Yang, and she produced a substantial chemist account." There was no evidence before the judge that the Westside Private Hospital referred to by the plaintiff was one of Dr Bannister's private hospitals. There was also no evidence that Dr Bannister's account was $1,000. She had been asked questions by counsel for the defendant about her claim for out of pocket expenses in her first action but she could not remember what the amounts were, which is hardly surprising. They were not proved by the defendant. Accordingly a number of the statements made by his Honour in the above passage were not supported by evidence. His Honour continued: "As a result of those serious allegations made by her as to disabilities, her solicitors were able to compromise those proceedings for an amount of $16,000 clear to the plaintiff, after the payment of legal expenses and all associated medical and hospital expenses." There was no evidence before his Honour that the plaintiff's claim based on the 1985 accident was not genuine, and was not properly compromised on both sides by the payment to her of $16,000 plus out of pocket expenses and legal costs. She was never cross-examined to suggest that her symptoms following this accident were not genuine or that the accident itself or her claims were fraudulent. His Honour continued: "She did not institute the present proceedings until the settlement of that action, because the statement of claim issued out of this Court in December 1986." 6 UNREPORTED JUDGMENTS This was true. However it seems that his Honour thought there was something sinister about the order of events. She may have deliberately delayed the second action until the first was settled, but in the absence of appropriate cross-examination the trial judge was not entitled to find that this was so. After all the second accident only occurred on 13 October and proceedings were commenced a little less than two months later. In itself the lapse of time was not in the least suspicious. His Honour then said: "She claims in evidence and in documents filed in these proceedings, very much the same complaints, but with lesser exaggeration." There can be no doubt that there was considerable if not a total overlap between the plaintiff's complaints in her two actions. However there is no evidence that they were exaggerated. She was cross-examined about the overlap. She was never cross-examined to suggest that her complaints were exaggerated. Indeed having secured an adjournment to obtain further medical examinations of the plaintiff the defendant did not tender any medical reports or call any doctor. The appropriate inference in accordance with Jones v Dunkel is that the evidence of doctors who examined the plaintiff during the adjournment would not have assisted the defendant's case. In other words the defendant was not in a position to call evidence to establish that the plaintiff's complaints were exaggerated. Accordingly his Honour's findings that the plaintiff had exaggerated her complaints following the first accident and, to a lesser extent, following the later accidents were totally unsupported by evidence. His Honour might have held that the plaintiff had failed to satisfy him on the civil onus that she had suffered any significant aggravation of her condition following the later two accidents, but he was not entitled to find that she had exaggerated her complaints in either proceeding without appropriate cross-examination or evidence. His Honour then said: "Tt was patently clear to her that each of the two accidents in which she was involved... were suspect. In fact I cross-examined her in relation to each of those accidents because I was very suspicious as to their happenings. She has very little credit in this Court and her word cannot be taken when she swears on the bible." It may be that the plaintiff's demeanour in the witness box, especially while under cross-examination by his Honour, entitled him to form a provisional opinion to this effect. However in that event his Honour, in simple fairness in accordance with the rule in Browne v Dunn, should have put to her that she knew that there was something "suspect" about the two accidents and she was not telling the truth. However it would be unthinkable, under our system, that a judge should have to put questions to a witness of the kind required to satisfy the rule in Browne v Dunn. On the other hand it is equally unthinkable that a trial judge should make findings such as those made by his Honour based upon his own cross-examination without complying with the rule. This dilemma demonstrates that his Honour had stepped outside his proper judicial role by undertaking this cross-examination. If the defendant was challenging the genuineness of the accidents the police reports would have been objected to and the plaintiff would have been cross-examined by counsel for the defendant on that basis. The plaintiff may have been forced to call the drivers of the vehicles in which she had been a passenger and perhaps some of the passengers. This evidence may have demonstrated that both accidents were entirely genuine. URJ GRHOVAC v GIO (Handley JA) 7 However it was clear that the defendant did not intend to conduct its case on this basis. Counsel for the defendant sought throughout to cut down the plaintiff's damages by demonstrating that she had earlier made claims based on substantially the same symptoms and received substantial compensation for them. In these circumstances the trial judge should have put out of his mind the suspicions he entertained about the genuineness of the accidents and decided the case on the issues raised and litigated by the parties. His Honour continued his reasons for judgment by stating again "that each of these two accidents was very suspicious" and said "I have to make a finding in her favour. I do so with a great deal of hesitation because my own intuition tells me that these accidents were not genuine." Turning to the assessment of damages he said: "T find that the plaintiff was shaken up in each of these two accidents, but that no further injury or disability ensued to her. She has come to this Court in a valiant attempt to swell her own private bank balance by relying on the same tired symptoms and disabilities that dishonest plaintiffs have come to know like the poems of Dorothea Mackellar. That will not work in this Court. This plaintiff is not genuine and she will not be rewarded for hyperbole. " It is not altogether clear that his Honour intended to find that the plaintiff was dishonest, but his finding that she was not genuine probably means that this was his intention. This conclusion is reinforced by his concluding remarks in which he said that he had considered ordering the papers to be sent to the Attorney General: "\.. to investigate the fact that this plaintiff could make the similar allegations time and again, especially when she had compromised the 1985 proceedings before issuing a statement of claim in the present proceedings. The word must go out to all persons that the Courts will not sit idly by and allow this sort of deceitful conduct to continue." In my opinion the trial of this action miscarried and there must be a new trial limited to the issue of damages. Under our system of trial the Court sits to determine the issues raised by the parties. In the words of Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63-64: "Tn the system of trial which we have evolved in this country the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, in some foreign countries... if a judge... should himself conduct the examination of witnesses he... descends into the arena and is liable to have his vision clouded by the dust of conflict'... The judge's part... is to harken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure... and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well". It is clear that the defendant did not dispute the genuineness of these accidents. Possibly another underwriter would have done so but it is also at least theoretically possible that the defendant had investigated the claims and satisfied itself on this issue. It is also possible that the defendant decided that it would be sufficient if it cut down the plaintiff's damages by proving that similar claims had been made in the earlier proceedings and that in these circumstances a full scale investigation of the claims was not justified. 8 UNREPORTED JUDGMENTS However regardless of the reasons, or lack of them, for the defendant's election to conduct the case in the way it did, the fact is that it did not put in issue the genuineness of these accidents. In these circumstances, as I have said, the trial judge should have put his suspicions out of his mind and proceeded to determine the issues joined between the parties. The case was in substance an assessment, and should have been treated as such. Had his Honour confined himself to the issues and the evidence, the case could have been disposed of in less time without the necessity for an appeal and a new trial. I am also of the opinion that the conduct of the trial judge was such as to disqualify him, on the ground of apprehended bias, from hearing and determining the case. The effect of the recent High Court cases on this topic was summarised by Dawson J in Vakauta v Kelly (1989) 167 CLR 568 at 575 where his Honour said: "The relevant principle is that... a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The judge's cross-examination of the plaintiff as to the circumstances of the accidents, and his interest in whether the drivers of the vehicles were all Yugoslavs, together with his reference to her Housing Commission accommodation, and the receipt of social security benefits were sufficient in themselves to raise a concern as to whether his Honour would "bring an impartial and unprejudiced mind to the resolution of the question[s] involved in [the case]". Australians regardless of their ethnic origins are all equal before the law, and a litigant from a non-English speaking background is entitled to both the appearance and the reality of an impartial and unprejudiced consideration of his or her case. Our law and the judicial oath or affirmation require no less. Tenants of Housing Commission accommodation are not second class citizens and should not be treated as such. There was no evidence in the case that the plaintiff was such a tenant, but even if she was she may have always paid a proper rent. There was certainly no evidence that she had not done so. Her unwillingness or inability to find work after she separated from her husband might, in some circumstances, reflect on her credit but the matter was not explored at all in cross-examination and in the present case she was making no claim for economic loss. Ihave already referred in some detail to the discussion between the trial judge and counsel which followed the conclusion of the evidence. This discussion strengthens the conclusion I would have reached in any event on the basis of his Honour's earlier remarks and his cross-examination of the plaintiff. It is apparent, if I may say so, that his Honour allowed his suspicions about the accidents to affect his judgment. This is demonstrated by his Honour's statement that his awards of damages were: "\.. Just for being in accidents which were highly suspicious." It is also apparent that his Honour was taking into account preconceived conclusions derived from other cases involving either plaintiffs from non-English speaking backgrounds, Dr Bannister, his private hospital, or the Drs. Bosniak and that he was taking into account conclusions he had formed as to the latter when they had been his neighbours at Strathfield. During the trial counsel for the plaintiff did not object to his Honour's remarks or to his cross-examination of the plaintiff and did not ask that he disqualify himself. URJ GRHOVAC v GIO (Handley JA) 9 Vakauta v Kelly (above) may establish that the appellant thereby waived any right she then had to object, on the ground of the ostensible bias, to the judge continuing to hear the case. However the conduct of the trial judge also gave rise to a different ground of challenge. He undertook an _ inquisitorial cross-examination of the plaintiff in relation to a matter which was not in issue between the parties. It is not clear whether a litigant can waive the right to a civil trial conducted in accordance with the common law adversarial system. It is perhaps significant that in Jones v National Coal Board (above) neither counsel at the trial raised any objection to the excessive cross-examination by the trial judge. A new trial was nevertheless ordered but the judgments in the Court of Appeal contain no discussion of the possible effect of waiver in such a case. On the other hand the decision in Vakauta v Kelly on the waiver issue may be applicable. In that case the trial judge reserved his decision. His reasons for judgment when delivered still demonstrated ostensible bias and the High Court held that in these circumstances the defendant was not disentitled to relief on that ground by reason of his waiver during the trial. Brennan, Deane and Gaudron JJ said at 573-4: "The statements which the learned trial judge had made about his preconceived views... were however effectively revived by what his Honour said in his reserved judgment. The appellants failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made... in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer.... The comments in the judgment were such as to cause reasonable apprehension on the part of a lay observer that the judgment itself was in the end affected by bias." Dawson J said at 579: "That leads me to the remarks made by the learned trial judge in his judgment. I can see no reason why these remarks should not be considered in the context of the remarks made earlier in the trial. So considered it seems to me that the conclusion is inevitable that his Honour failed to consider the evidence in the case fairly and impartially, putting to one side his preconceived views.... Since the judgment was reserved there was no opportunity for the defendant to object to its contents. Consequently there can be no question of any waiver of the right to object." Finally at 588 Toohey J said: "Once it is accepted that there was bias, at any rate ostensible bias, in the judgment itself, no question of waiver or estoppel can then arise. What was delivered was a reserved judgment, without any opportunity for counsel to question what it contained." In the present case his Honour delivered an extempore judgment but he had previously indicated to the parties the decision at which he had arrived and the damages he proposed to award. Counsel for the plaintiff was therefore aware of the orders the judge proposed to make prior to the delivery of his reasons. Indeed his Honour had suggested that there was no need-for him to give reasons but counsel for the plaintiff requested him to do so. Counsel for the plaintiff was not bound to interrupt the judge while he was delivering his extempore reasons to ask him to disqualify himself. His failure to do so did not waive any right of challenge based on the ostensible bias disclosed 10 UNREPORTED JUDGMENTS in the reasons. Likewise - I do not consider that counsel for the plaintiff was obliged to rise after the reasons for judgment had been delivered, to object to the judge pronouncing his orders or to ask him to vacate those orders and disqualify himself. In my opinion the evidence of ostensible bias in his Honour's reasons for judgment revived the plaintiff's right to challenge his Honour's judgment on that ground based on his earlier conduct and also gave rise to a fresh basis for such a challenge. The following orders should be made: (1). Appeal allowed. (2) Set aside so much of his Honour's judgment as assessed the plaintiff's damages in the sum of $1350. (3) Order that there be a new trial of the action limited to the issue of damages. (4) The respondent to pay the appellant's costs of the appeal. (1) Appeal allowed. (2) Set aside so much of his Honour's judgment as assessed the plaintiff's damages in the sum of $1350. (3) Order that there be a new trial of the action limited to the issue of damages. (4) The respondent to pay the appellant's costs of the appeal. COUNSEL for the Appellant: D WHELLAHAN QC and COSTELLO Counsel for the Respondent: C Barry SOLICITORS for the Appellant: FLANNERY MURA and COSTELLO Solicitors for the Respondent. GOVERNMENT INSURANCE OFFICE