ARCHER v SHUTE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL 5 MAHONEY JA, PRIESTLEY JA and CLARKE JA 9 October 1992 [1992] NSWCA 9 DAMAGES — MEDICAL EVIDENCE — CAUSATION — INTEREST ON PAST ECONOMIC LOSS — NO MATTER OF PRINCIPLE Clarke JA. This is an appeal from the judgment of Mr Acting Judge Patten, 15 as he then was, given on 15 March 1991. The claim before him was a claim by the respondent for damages in respect of injuries received by him in a motor vehicle accident on 28 February 1980. At the trial all issues were in contest. Negligence was denied and contributory negligence was asserted and, of course, damages were in issue. 20 His Honour found a verdict for the respondent and there is now no challenge to his Honour having done so. Damages were awarded in the sum of $261,471.70 and the appellant has claimed in this court that those damages are excessive. There are three grounds advanced in support of the appeal. The first is that his Honour erroneously found that an allergy suffered by the respondent was causally 25 related to the accident and therefore was in error when he included in his award of general damages and economicloss a component to ensure full compensation for all the effects of the accident including the allergies. The second ground is that the rate of interest used in relation to the award in respect of general damages was erroneous. That ground has been conceded by the 30 respondent with the result that the interest on past general damages should be reduced from $13,200 to $8,800. The third ground is that his Honour's discretion in awarding interest in respect of past economic loss miscarried insofar as he failed to take into account the unexplained delay by the respondent between the date of the accident and the 35 date of trial, a period in excess of eleven years. I will return to the first ground. It was developed in this way. In his reasons for judgment the trial judge expressed his acceptance of the respondent as a witness of truth and observed that the accident had a very serious impact upon the respondent's social, recreational and occupational life. His Honour proceeded to 40 say: I think on the probabilities that the medical evidence tendered in the plaintiffs case is to be preferred to the evidence tendered in the defendants" case and in my opinion the report of Dr E J Alam of 9 October 1989 accurately summarises the medical problems then suffered by the plaintiff which were causally related to the accident 45 _ including the development of a petrochemical allergy, headaches and neck problems. It seems to me on the probabilities that there was indeed a causal connection between the motor vehicle accident and the development of a petrochemical allergy. The opinion there expressed by his Honour was, clearly enough, based on the medical evidence tendered in the respondent's case and in particular a report 50 dated 27 November 1985 of Dr Peter Bass. Before dealing with that report I ought make specific mention of Dr Alam's report of 9 October 1989, because of 2 UNREPORTED JUDGMENTS the specific reference to that report by his Honour. In that report Dr Alam thanked the respondent's solicitors for the allergy, neurological, psychiatric andorthopaedic reports which he had received. He noted that when he last saw the respondent in 1982 headaches were his greatest problem and that he had to have injections of drugs. He recorded that the respondent's sinuses were investigated and he had an operation under Dr Joe Wadsworth. Dr Alam also noted the contents of the Allergist's report and in that respect it was said, and I accept, that he was clearly referring to Dr Bass" report. There is then reference under the heading 'Present Subjective Complaints' to severe headaches which had finally relented. In his assessment, Dr Alam includes the following: A marked to severe head injury with marked post-concussional state, characterised by headaches. Subsequent treatment and events point strongly to the development of a petrochemical allergy, which by his management and medical help has come under control. The conclusion reached by Dr Alam in respect of the allergy was, I think, undoubtedly based upon the opinion of Dr Bass, which is shortly stated in his report in these terms: From his progress and subsequent history I consider that he is suffering from nasal and sinus congestion associated with migraine type headaches caused by sensitivity to chemicals including petrochemicals. As the condition arose shortly after the motor vehicle accident it seems likely that there is a causal connection. The attack upon his Honour's conclusion depends firstly on the relationship between that conclusion and Dr Bass" opinion. It is submitted that the judge clearly was acting upon that opinion, as was Dr Alam. I would agree with both those propositions. It is then said that the doctor's opinion is not entitled to any weight for the reason that it was based on an incorrect history. I would agree that if the history on which the ultimate opinion was based is shown to be significantly in error then the report and opinion wouldbe entitled to very little weight indeed. That is the more so in the present case because of the clear reliance by the doctor on the history. The question then is whether the history was erroneous. Mr Barry, who appeared for the appellants, referred the court to a passage in the evidence of the respondent which he said conclusively established the error. That passage reads: JOBSON: Q. Can you remember when you first had trouble with allergies, approximately when? After the accident. How long after the accident? It was about four years after, three years, nearly four years. Do you still have trouble with that allergy? Yes. What is the allergy? The allergy is mainly to petrochemicals and it's an environmental problem. Did you have any problems with that before the accident? Nope. You said you had an allergy to petrochemicals? Yes. POPOPOHPOPOP URJ ARCHER v SHUTE (Clarke JA) 3 Read literally, that passage would convey the notion that the respondent had absolutely no allergy problems until at least three and possibly four years after the accident. If that is correct, then it is clear that Dr Bass had based on a false history. There are, however, some difficulties in accepting that that is indeed the true position, for Dr Bass is a specialist in allergic diseases and the respondent was referred to him less than three years after the accident and after he had sought much medical treatment to relieve the problems from which he was suffering. In addition, what I think emerges from a closer examination of Dr Bass" report is that when he spoke of the condition arising shortly after the accident he was speaking of the condition which he had identified, that is, nasal and sinus congestion associated with migraine type headaches. It was that condition which had arisen, as the doctor understood it, shortly after the motor vehicle accident and it was that condition which his Honour related to the effects of that accident. It is true that in 1982 when the doctor first saw the respondent he had not identified the relationship between that condition and exposure to petrochemicals, but the fact that the allergy was not diagnosed as such until years after the accident does not reflect upon the accuracy of the history taken by the doctor. In addition, in the earlier part of the report the doctor had said that after the back pain improved he was left with headaches as a severe problem and at the same time noticed blocking of his nose and swelling of his face. If one returns to the respondent's own evidence, one sees that he had a severe head injury in the accident and when asked what was the problem with his head he said: Ihad these headaches that were very severe headaches to the extent that I had swollen eyes and my face swell (sic) up and my neck swell up and even my vision at certain times was impaired. I was constantly wanting to sleep like I was totally fatigued. He attended Royal Prince Alfred Hospital in February 1980 immediately after the accident and on 10 March 1980 he attended Sydney Hospital, saying that he was not happy with what Royal Prince Alfred suggested was causing the headaches. At Sydney Hospital he submitted to neurological examination. From that evidence it is clear that the severe headaches and the swollen eyes and face were troubling the respondent almost, if not, immediately after the accident. It would seem to me from the totality of the respondent's evidence that he was seeking to convey to the court that he suffered from the problems which were eventually identified as an allergy from the time of the accident and that when he gave the evidence which I have set out about being troubled by the allergy three or four years after the accident, he was really seeking to convey that he had learned at that time that the problems from which he was suffering resulted from an allergy to petrochemicals. I find some support for this approach in the report of Dr Burke dated 5 July 1985 which was also tendered in the respondent's case. Dr Burke obtained a history from the time of the accident the respondent had headaches and the headaches persisted in spite of a rhinoplasty which, I interpose, was carried out in March 1981 and that after allergy tests in 1983 he began to avoid certain foodstuffs and the headaches then improved. The history taken by Dr Burke then records that in November 1984 he was found to be allergic to petrochemicals. 4 UNREPORTED JUDGMENTS dr Burke, who is a neurophysician or neurologist, expressed the ultimate opinion that the respondent's headaches: .. appear to be of extra cranial origin associated with allergies and this liability to allergy induced headaches has appeared since his concussive head injury. Having regard to those matters and giving full weight to the passage in the evidence to which we were referred, I have concluded that counsel is not correct in his submission that the history upon which Dr Bass based was erroneous. It seems to me that the historytaken accords substantially with the respondent's evidence and the history given to other doctors, including Dr Burke. Notwithstanding, it was submitted that his Honour should have found that the respondent failed to discharge the onus of proving the relationship between the accident and the allergy because the headaches were a likely result of the severe head injury quite apart from any allergic reaction. Counsel sought to support that submission by referring to a number of factors. The first was that the respondent was asthmatic as a child. The second was that he had not bee exposed to petrochemicals until six months after the accident when he returned to work and yet he complained of symptoms well before that time. The third was that there were reports from some relevant medical practitioners which had not been put into evidence; and the fourth was that there were contrary opinions expressed in reports tendered by the appellants. None of the first, third and fourth propositions provides any basis, in my opinion, for rejecting the clear opinion of Dr Bass. He was the only specialist in allergic diseases called. He saw the respondent on a number of occasions and he came to a clear opinion. He knew of the childhood asthma. The absence of other reports and the contrary evidence from other medical practitioners provides no reason to find error in the judge in accepting Dr Bass" report. The second matter, which was based on the six months period before the respondent returned to work, simply is wrong. What Dr Bass said was that the respondent suffered from a sensitivity to chemicals including petrochemicals. Even if the allergy was caused only by petrochemicals, it is clear from the evidence that the respondent would have been exposed to those when he ate certain foodstuffs. There was no investigation of the significance of a six months absencefrom work as a motor mechanic and in those circumstances I do not think that matter is entitled to any weight at all. Having regard to the fact that all the medical evidence was tendered in the form of reports, that there was no cross-examination upon them, that the only medical report by a specialist in the relevant area was that of Dr Bass and that his opinion was clearly expressed and based on a substantially accurate history and supported by Dr Burke, I am quite unable to agree that any error was shown in the conclusion reached by the trial judge. I would, therefore, reject this ground of appeal. The third ground of appeal challenged the award of interest on past economic loss. Counsel referred the court to the dictum of Moffitt JA in Bennett v Jones (1977) 2 NSWLR 355 at 371 and submitted that in order for the trial judge to exercise his discretion properly he had to give careful consideration to the fact that there was an unexplained delay between the date of the accident and the hearing of the action. Counsel recognised, however, that there was a degree of tension between what Moffitt JA said in Bennett and what has since been said by the High Court in MBPSA Pty Limited v Gogic (1979) 7 CLR 657 and this court in The Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 55 at 59. URJ ARCHER v SHUTE (Mahoney JA) 5 It seems to me those latter cases and a number of others to which it is unnecessary to refer place the award of interest upon the basis that it represents compensation for the respondent being kept out of his money until the time of the award. If that is right, while I would not seek to suggest that delay is irrelevant, it is of much less relevance than might otherwise have been thought. In this case there were submissions put to his Honour in clear terms relating to the delay and although his Honour did not advert expressly to those submissions I seen no reason for believing that hedisregarded them. The mere fact that he did not mention the submissions could not found in the circumstances of this case a successful submission that his discretion had miscarried. In the absence of any express reference to delay and having regard to the manner in which his Honour expressed his conclusion, I am unable to find any basis upon which this Court could say his Honour erred in the exercise of his discretion. I accordingly reject that ground of appeal. In the result, the only ground which has succeeded is the one which was conceded. In order to give effect to that concession it will be necessary to make the following orders: 1. Appeal allowed; 2. Judgment of Acting Judge Patten set aside except as to costs; 3. In lieu thereof enter judgment for the respondent in the sum of $154,243 to date from 15 March 1991; In all the circumstances I would order the appellants to pay the costs of the appeal notwithstanding its success on the interest and past general damages. Mahoney JA. I agree with the orders proposed by Clarke JA. The basis of interest is now established by the Gogic case, as his Honour indicated. I would add one comment. This case has turned on what is the proper understanding of what was said by the various doctors and by the judge. As the matter has turned upon such an issue, it was obviously desirable — I speak in the abstract and as a matter of principle — that the point at issue in the matter be identified and made the subject of appropriate contest at the trial. That, of course, was not done in the present case. I do not necessarily criticise the parties involved for this. But the comment may be made that, while theprocess of trial of medical cases of this kind merely by tender of reports without calling evidence has a number of practical advantages, it also may have disadvantages. It saves time and it no doubt saves cost to the party who ultimately has to bear the cost of the proceedings. This ordinarily will be the insurer and therefore cost is saved to the public interest. However, one of the difficulties that arises in such a case is that which arose here, namely, that at the end of the case there may be some issue of principle or fact which could have been cleared up if the relevant doctor had been available to be questioned and which cannot be cleared up because, of course, he has not been called. It is desirable that some method be evolved for identifying in advance any question of fact or principle arising from the medical report to be tendered which is to be in issue at the trial. In that event the parties could, if it be necessary, then arrange for the particular doctor to be called or otherwise the matter to be dealt with. It is not infrequent that a trial judge or this Court is faced with the difficulty that a matter which could have been cleared up in such a way is the subject of contest and the result is that the costs of appeal are incurred in order to determine 6 UNREPORTED JUDGMENTS something which would have been able to be determined had the matter been identified originally. It may mean that an appropriate amendment to the rules is necessary or, alternatively, that more strict enforcement of the rules will get rid of the difficulties. However, these general observations do not affect the result of the present case. I am, as I have indicated, in agreement with the judgment proposed by Clarke JA. Priestley JA. I agree with what has been said by Clarke JA and Mahoney JA. Mahoney JA. The orders will be as proposed by Clarke JA. Orders accordingly. Counsel for the appellant: C T BARRY Solicitors for the appellant: G M MEADOWS Counsel for the respondent: J JOBSON Solicitors for the respondent: WR DAVISON