TVRDAK v MUCHITSCH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 16 SEPTEMBER 1992, 24 September 1992 [1992] NSWCA 255 APPEAL — NEW TRIAL — QUANTUM OF DAMAGES — INADEQUACY APPEAL and NEW TRIAL — quantum of damages — inadequacy. Plaintiff appealed from assessment of damages by a judge sitting alone — assessment based on acceptance of medical report — judge mistaken as to effect of report — no evidence directly and explicitly supported judge's assessment. Held: (1) The assessment being based on a mistaken view of the evidence must be set aside; (2) In the circumstances the Court could not reassess on the written materials and there must be a new trial limited to damages. Priestley JA I agree with Handley JA. Meagher JA I agree with Handley JA. Handley JA This is an appeal by the plaintiff from a judgment of his Honour Mitchelmore DCJ in proceedings arising out of a motor vehicle accident which occurred on 11 August 1983. The Judge found for the plaintiff on Liability and assessed his damages at $40,000. The plaintiff has sought from this Court a new trial of the proceedings limited to the issue of damages. As a result of the accident the plaintiff suffered injuries to his neck and back. On the following day he consulted Dr Jakovac and her first report dated 26 October 1983 was admitted in evidence. The plaintiff had six days off work immediately after the accident but then lost no further time from work until he was involved in a further motor vehicle accident on 19 September 1985. Although he lost no further time from work during this period he gave evidence that his neck and back symptoms continued. At the date of trial in August 1990 the plaintiff's complaints, according to the findings of the Judge, were that he had trouble and pain in his back. If he sat for more than forty five minutes his back got worse. Working overtime exacerbated the pain. Some days the pain in his back was better, other days it was not. He was taking a variety of drugs for his neck and back. The Judge found that the plaintiff had a preexisting condition of spondylolisthesis in his back which had been symptom free but was aggravated and became painful as a result of the 1983 accident. The existence of this preexisting condition and its aggravation for some time at least as a result of the 1983 accident were common ground in the appeal. The Judge found that the plaintiff suffered two further accidents during 1985, one in February and the other in September, and considered that the plaintiff's treating doctor regarded these two further accidents as significant. His ultimate findings were summarised in the following passage in his reasons for judgement: "T am not satisfied that the continued aggravation of the spondylolisthesis can be attributed to the first accident. It is incumbent upon the plaintiff to place material before me to delineate between the accident which is the subject of these proceedings and the other accident... This has not been done. I am not assisted 2 UNREPORTED JUDGMENTS greatly by the medical reports subsequent to 1985. Each doctor providing those reports was told only of the one accident which is the subject of the proceedings before me... Had they been aware of the treating doctor's view of later exacerbation by the subsequent accidents, the doctors who reported may well have reported differently. I cannot assume, and I am not satisfied that the aggravation of the spondylolisthesis continuing to date was due to the first accident. It may well have been, as was accepted by Dr Jakovac, attributable to the other accidents." Accordingly the Judge accepted the defendant's submission that the plaintiff was only entitled to damages for a closed period ending in September 1985. With respect to the Judge it is not at all clear that the plaintiff's evidence, when properly understood, supports a finding that he was involved in a motor vehicle accident during February 1985 or that if he was that this accident was of any significance in relation to the condition of his neck and back. However during argument it became clear that this appeal did not turn on whether the plaintiff had been involved in one or two accidents during 1985 and the appeal can be disposed of without deciding that question. The plaintiff was the only witness who gave oral evidence. The medical evidence on his behalf consisted of reports from a number of doctors including his original treating doctor, Dr Jakovac. The defendant was also content to rely upon the medical reports of doctors who were not called to give oral evidence. No doubt many personal injury cases can be satisfactorily disposed of by trial judges sitting alone on the basis of medical evidence given in writing without a single doctor being called as a witness. However in other cases, including a significant number which reach this Court, this practice gives rise to difficulties which sometimes must be resolved against the party who bears the legal onus of proof, and in others renders it necessary for this Court to order a new trial limited to damages. This is another such case. The trial Judge accepted the report of Dr Jakovac dated 24 September 1987 and based his assessment of the plaintiff's general damages on it. He discarded the rest of the plaintiff's medical evidence because of the incomplete history on which it was based. The judge did not refer to the defendant's medical evidence. Dr Bentivoglio who saw the plaintiff on 25 September 1985 in his report dated 28 September said that the plaintiff had sustained a musculo ligamentous strain to his neck and had aggravated his preexisting spondylolisthesis in his lumbar spine but that he had fully recovered from his neck injury, that any aggravation to his preexisting condition in his lumbar spine would have ceased after 3-6 months and that any ongoing disabilities were due to the underlying organic condition. He also thought that the plaintiff was exaggerating his symptoms. Sir Keith Jones in his report of 15 September 1987 also expressed the view that any aggravation to his underlying spondylolisthesis would long since have ceased and that the plaintiff was feigning his symptoms in the cervical spine and upper extremities. However as the trial Judge noted the plaintiff was not cross examined to suggest that he had exaggerated or lied about his symptoms. The Judge's actual assessment involved the rejection of this evidence from the defendant which would only have supported an assessment for a period ending early in 1984. As I have said the Judge accepted the evidence in the report of Dr Jakovac of 24 September 1987 and based his assessment on that evidence. However in my opinion, and with respect, it is clear that he misunderstood the effect of this evidence. In her report Dr Jakovac referred to motor vehicle accidents which URJ TVRDAK v MUCHITSCH (Handley JA) 3 occurred on 11 August 1983 and 19 September 1985. The doctor reported that following the second accident the plaintiff "has been complaining of headache, sometimes very bad, pain in the neck, both shoulders girdle, back and left leg. He has been quite nervous, anxious, depressed at times, poor sleep and poor concentration." In her conclusions she wrote: "Two accidents caused increasingly worsening of symptoms". It is clear both from this and other reports from this doctor that her written English is less than perfect. A doctor whose first language was English would not refer to two accidents causing "increasingly worsening of symptoms" when perhaps she meant that the first accident had caused certain symptoms and the second had aggravated them. The Judge understood the report as referring to successive aggravations to the original injuries as a result of further injuries in February and September 1985. I am satisfied that this is not what Dr Jakovac meant. She only referred to two accidents in her report, that of 11 August 1983 and a second one on 19 September 1985. In view of the complete absence of any reference to another accident in February 1985 I am satisfied that her reference to the two accidents causing "increasingly worsening of symptoms" should not be taken literally as referring to the effects of three accidents altogether but should be understood as referring to the combined effect on this plaintiff of the two accidents she specifically referred to. The problem facing the Judge therefore was not as complex as he thought because the doctor's opinion was based on the plaintiff having suffered from two accidents and not three. However the Judge's misunderstanding led him into further error. He said: "T cannot assume, and I am not satisfied, that the aggravation of the spondylolisthesis continuing to date was due to the first accident. It may well have been, as was accepted by Dr Jakovac, attributable to the other accidents." Thus the Judge appears to have considered that Dr Jakovac was expressing the opinion in her second report that the plaintiff's continuing symptoms after 19 September 1985 were solely due to the two accidents that he had suffered that year and inferentially that the accident of August 1983 had ceased to play any part. This in my view involved a fundamental misinterpretation of the report. The doctor's opinion was that after the second accident the plaintiff's continuing symptoms were due to the combined effects of the accident of August 1983 and the later accident of September 1985. There was in fact no evidence which directly and explicitly supported the Judge's finding that the first accident was not a contributing cause of the plaintiffs symptoms after the accident of September 1985. That was not the opinion of Dr Jakovac and no other doctor expressed such a view. The appellant has therefore established that the assessment under appeal was based on a mistaken view of the evidence and indeed was not supported by any medical evidence. The assessment must therefore be set aside. In the circumstances it is clear that this Court is in no position to undertake a reassessment of the plaintiff's damages on the written material. In fact neither counsel sought such a reassessment by this Court. In my opinion the following orders should be made: 1. Appeal allowed with costs. 2. Set aside the judgment for the plaintiff of 7 September 1990. 3. Order a new trial of the action limited to the issue of damages. 4 UNREPORTED JUDGMENTS 4. Costs of the first trial to abide the order of the Judge in the second trial. 5. The respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. COUNSEL 8 Counsel for the Appellant: P SEMMLER Counsel for the Respondent: R TONNER Solicitors Solicitors for the Appellant: KENCALO and RIMES Solicitors for the Respondent: GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES