RUDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, SHELLER and CRIPPS JJA 29 April 1992, 11 June 1992 [1992] NSWCA 218 Damages — quantum, personal injury Evidence — when an appellate court will interfere with a trial judge's findings. Costs — principles for interference with a trial judge's order. The plaintiff was injured in a motor accident caused by the defendant's negligence. The plaintiff claimed that she suffered additional damage to her spine and left leg which had previously been damaged in an accident. The trial judge concluded that the motor incident was minor in nature. The trial judge did not accept the plaintiff's case and concluded that the motor accident caused only a temporary exacerbation of her condition which soon returned to the same condition she would have been in had it not occurred. On appeal it is claimed that the trial judge erred in not finding that most of the disabilities suffered by the plaintiff were the result of this most recent accident. It is also claimed that the trial judge erred in firstly, allowing certain evidence pursuant to Pt33 r8A of the Supreme Court Rules and secondly, in ordering that the plaintiff pay three quarters of the defendant's costs and the defendant pay one quarter of the costs of the plaintiff. Held: (Mahoney, Sheller, Cripps JJA) There is nothing to suggest the trial judge had erred in his finding on the evidence or that he misunderstood the evidence. (Sheller, Cripps JJA) No error is demonstrated to the effect that his Honour erred in not allowing an amount of $2337 in out of pocket expenses. (Sheller, Cripps JJA) It is not necessary to determine whether his Honour was in error in admitting the statement of claim and particulars of injury furnished pursuant to Pt33 r8A and to draw inferences adverse to the plaintiff with respect thereto. (Sheller, Cripps JJA, Mahoney JA dissenting) The trial judge was in error in ordering the plaintiff to pay three quarters of the defendant's costs. Legislation Supreme Court Rules: Pt33 r8A, Pt52 R24(2) Supreme Court Act 1970; s76 Cases referred to Brunskill v Sovereign Marine and General Insurance Company Ltd (1985) 59 ALJR Abalos v Australian Postal Commission (1991) 171 CLR 167 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Donald CamPbell and Co Ltd v Pollak 1927 AC 732 Dawson v Westpac Banking Corp (1991) 66 ALJR 94 Voulisu v Kozary (1976) 50 ALJR 59 Chambers v Jobling (1986) 7 NSWLR 1 Ahmedi v Ahmedi (1991) 23 NSWLR 288 John Fairfax and Sons Ltd v Palmer (1987) 8 NSWLR 297 Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115 British and Outlook Ltd v Associated Newspapers Ltd 1933 2 KB 616 Mahoney JA On 8 July 1985 the plaintiff was involved in a minor motor vehicle accident for which the defendant accepted legal responsibility. She claimed that, as a result of the accident, she has had considerable problems with 2 UNREPORTED JUDGMENTS her back. She sued the defendant. The learned judge awarded her $6,000 general damages and, with interest, judgment of $8400. He ordered that she pay three-quarters of the defendant's costs of the proceedings and that the defendant pay one-quarter of the plaintiff's costs of the proceedings other than the costs of an application before a Master, such costs to be set off. The plaintiff has appealed to this Court against his Honour's judgment. The facts are detailed in the judgment of Cripps JA. I am in agreement in general with his Honour's conclusions on the issue of damages. However, if the trial judge had accepted the plaintiffs case, the damages would have been much greater. His Honour did not accept the case put forward by her and, in his judgment, put aside the evidence of Dr Weisz, her treating surgeon. Mr Semmler, for the plaintiff, has submitted that his Honour erred in what he did and has submitted to the court a careful and detailed analysis of the evidence. I shall therefore examine for myself what, in general terms, was the plaintiff's case and the basis on which it was rejected. Stated in general terms, the plaintiff's case was that she had, prior to the motor vehicle accident of 8 July 1985, had difficulties with her back and had pain and other symptoms from it in the lumbar sacral area. In 1969 she had had a laminectomy operation by Dr Bloch at the LS/S1 level. On 24 July 1984 she had suffered injury while working in a pharmacy at Double Bay. On 18 September 1984 a CT scan was performed on her and, in November 1984, she underwent a laminectomy and decompression operation by Dr Weisz. Dr Weisz's post accident report of 27 November 1984 referred to "a large disc protrusion compressing the first sacral nerve against a narrowed canal" and the achievement of "decompression" and the removal of "one large protruding disc". The report stated, "The L4,5 intervertebral disc was slightly bulging, and has been decompressed, but not excised". On 8 July 1985 the plaintiff suffered the motor vehicle accident in question. The accident was a minor one. However, the plaintiff said that her back symptoms were considerably accentuated. She came again under the care of Dr Weisz who, on or about 15 July 1985, admitted her to hospital for bed rest, injections and pain killing medication. She was discharged from hospital on 19 July 1985. She remained under Dr Weisz's care and was seen by him on a number of occasions. On 18 September 1985 a myelogram was performed; on 1 October 1985 a CT scan was performed. On 18-19 November 1985 she was seen on referral by Dr Segelov. On 12 February 1986 an MR imaging of her spine was undertaken showing, according to the report, a small central posterior bulge at L4/5 and LS/S1 positions. The plaintiff claimed in evidence that following her accident on 24 July 1984 and the operation of November 1984, she had improved and her back and symptoms were such that, had it not been for the motor vehicle accident, she would have been able to seek work as a pharmacist. Her claim was that the motor vehicle accident, though slight, caused damage which so accentuated her back condition that she was not able to do so. Had her case been accepted, her damages would no doubt have been substantial. But his Honour concluded, in substance, that the motor vehicle accident had caused only a temporary exacerbation of her condition and that, at the end of a short period, she had returned to the condition in which she would have been had it not occurred. He concluded that such continuing difficulties as she had were the result not of the motor vehicle accident but of her previous back condition and injuries. UWRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahone? JA) The plaintiff's case before the trial judge depended to a great extent upon the acceptance of her evidence and of the evidence given for her by Dr Weisz. It is the learned judge's refusal to accept the relevant aspects of the evidence of the plaintiff and of Dr Weisz which led him to arrive at the conclusions and give the judgment that he did. It is therefore necessary to examine what occurred in relation to the evidence of the plaintiff and of Dr Weisz. The learned judge found the plaintiff unacceptable as a witness of accuracy and, I think, of truth. He based his refusal to accept the relevant portions of her evidence at least partly on what he saw of her at the trial. Thus, his Honour concluded that, when confronted with the history she had given to doctors as to her recovery after the accident, "she prevaricated and tried to suggest that the doctors had misunderstood and that her statements were being taken out of context but she never distinctly denied having made the statements". His Honour said, "I found her attempts to evade the significance of those statements most unconvincing". His Honour said that he was "not satisfied that any deterioration after that period of time", that is, her discharge from hospital in August 1985, was "caused by the car accident". He concluded that it was more probable "that any such deterioration is to be accounted for by the abnormal condition of her back brought about by her previous injuries and operations". In the evidence, it appeared that, and I think his Honour accepted, the plaintiff had told three doctors, Dr Ireland, Dr Millons and Dr Segelov, that she had, following the accident, settled back to her usual, ie, pre-accident, state of discomfort within a few weeks. In these circumstances, Mr Semmler, for the plaintiff, accepted that prima facie the approach which this Court should take to the findings of the trial judge in relation to her evidence was governed by the principles referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Dawson v Westpac Banking Corporation (1991) 66 ALJR 94. He therefore endeavoured to show that, within the principles discussed in, eg, Voulis v Kozary (1976) 50 ALJR 59, his Honour's findings had been affected by such errors as warranted this Court putting them aside. For this purpose, Mr Semmler relied in the main upon the evidence of Dr Weisz and what, in his submission, were errors of the learned judge in relation to it. His submissions suggested that such errors showed that the judge had failed appropriately to use his advantage as trial judge and that therefore this Court could and should review and put aside his findings both as to the plaintiff and as to Dr Weisz. The learned judge said that, in respect of the relevant matters, he did not find Dr Weisz's evidence "at all satisfactory". And he preferred the evidence of the other medical witnesses, Dr Ireland and Dr Millons. Mr Semmler submitted that his Honour erred in this and that this Court could and should prefer the evidence of Dr Weisz and should accordingly find that the matters of which the plaintiff properly complained were due to the motor vehicle accident. Mr Mater, for the defendant, submitted that this Court could not and should not depart from his Honour's findings. There were, as Mr Semmler submitted, strong reasons why the trial judge should accept the evidence of Dr Weisz. It was not suggested, and it is proper to record, that either the competency or the honesty of Dr Weisz was in question. His Honour and this Court have been concerned only with the accuracy of the evidence given by him and whether the evidence given by other medical practitioners should be preferred to it. Dr Weisz had two advantages: he had been 4 UNREPORTED JUDGMENTS the operating surgeon who, in November 1984, had seen the condition of the plaintiff's spine and the relevant discs; and he had seen and treated her on a number of occasions both before and after the motor vehicle accident. These are, Mr Semmiler rightly submitted, matters which warranted preference being given to Dr Weisz's evidence over the evidence of doctors who had seen the plaintiff less frequently and for more limited purposes. There was, I think, some contest as to the effect of the first of these. Dr Ireland did not fully accept that his position as operating surgeon placed him in a position of advantage in relation to the present matter. But Dr Millons conceded that Dr Weisz had some advantage. It is therefore proper to consider the basis on which, as it has been submitted, this Court should accept the learned judge's conclusions. There are two main matters to be considered in this regard: the fact that the learned judge saw and had the opportunity to assess the main medical witnesses; and the reasons which the judge gave for concluding that Dr Weisz's evidence was not "satisfactory". The medical evidence (apart from reports of scans and the like) consisted of the oral evidence of Dr Weisz for the plaintiff and of Dr Ireland and Dr Millons for the defendant, written reports by these three doctors, and reports of Dr Segelov and Dr R Smith which were tendered for the plaintiff. The learned judge therefore had before him at the trial three medical witnesses. In relation to the plaintiff's condition and the cause of it, their evidence and their conclusions differed. Their conclusions depended as to part upon the accuracy of what they said they had seen and heard of and from the plaintiff and as to part upon the professional inferences which they drew from those matters. In circumstances such as these, a trial judge is, in my opinion, in a position of advantage in his assessment of the expert witnesses. His conclusions may be - although, of course, they need not be affected by the effect of those witnesses as well as by, eg, the logic or internal consistency of what they have said. The Abalos principles are, mutatis mutandis, applicable to the conclusions which are arrived at by a trial judge in relation to these matters: see Chambers v Jobling (1986) 7 NSWLR | at 25; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 291. In this case, the learned judge did not, in terms, indicate that he was affected by such matters. But it is, in my opinion, proper to proceed upon the basis that he was. The inference from the terms of the judgment is that the judge was influenced by having seen the medical witnesses before him. But, in addition, in the case of a non-expert witness, the Abalos principles are ordinarily applicable unless the learned judge indicates or it otherwise appears that he was not influenced by the effect of the witnesses or otherwise took no advantage of his opportunity to observe them: see the Abalos case at 178. I see no reason of principle why this should not be so in the case of expert witnesses: there are, I think, reasons why the position should be the same. Where, for example, expert witnesses differ in respect of matters dependent upon conclusions or inferences which depend upon their experience or judgment, it is not unusual for a court or for those who in other contexts do so to choose between them upon the basis that one and not the other has, by his effect, induced confidence in him as a witness of accuracy or a person whose judgment warrants respect. These considerations support the acceptance by this Court of the learned judge's preference for the other medical witnesses over Dr Weisz in the present case. However, his Honour based his rejection of Dr Weisz's conclusions also upon particular factual matters. Mr Semmler's submissions suggested, I think, that his Honour erred in respect of these matters and that those errors warrant this Court WRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) putting aside the conclusions which his Honour formed. It is therefore necessary to examine the issue to which the medical evidence was directed and the reasons given by the trial judge for finding Dr Weisz's evidence to be in relation to them unsatisfactory. The plaintiff's case was that she was suffering pain and disability by virtue of her back condition. It was not I think in contest but that she was. What was in contest was the degree of the pain and disability and the cause of it. Oversimplified, the competing claims of the parties were generally as follows. The plaintiff's claim was that, prior to the motor vehicle accident, she had a back condition which was causing her pain and incapacity; that following the operations upon her back, her condition had improved to the extent that, immediately before the motor vehicle accident of 8 July 1985, she was preparing to resume work as a pharmacist; that following the motor vehicle accident her pain and incapacity increased and remained such that she was unable to resume work; and that this was due to the motor vehicle accident. In general terms, the thrust of her case was that the motor vehicle accident had caused a bulging in one of the discs in her spine, at L4/5, and that it was this which substantially was the cause of her pain and incapacity. The defendant's case was in substance that the plaintiff had a back condition which was congenital or, at least, predated the motor vehicle accident; that that condition involved pressure upon nerves which caused her pain and incapacity; that her condition had been exacerbated by a previous work accident and, it may be, by the scars resulting from surgery then undertaken; that the motor vehicle accident caused only a temporary increase in her pain and incapacity which ceased a few weeks after the accident; and that therefore such pain and incapacity as she had thereafter - the extent of which was in contest - was not caused by that accident. Competing claims of this kind required a consideration of the condition of the plaintiff's spine both before and after the accident and the neurological incidents of the pain from which she was suffering. The relationship between what she was in fact suffering and the accident was, for the medical witnesses, to a substantial extent at least, a matter of medical judgment and that judgment was apt to be influenced by the truth and accuracy of the history of the plaintiff, as she reported it and as it otherwise appeared. In this context, the learned judge in his judgment referred to matters by reference to which he found Dr Weisz's evidence unsatisfactory. Dr Weisz had accepted the plaintiff's complaint of "severe low back pain" and, his Honour said, the doctor referred to a number of matters to support his opinion: progressive neurological changes indicating nerve compression in the spine not previously recorded, eg, sensory loss in the perineal area; CT and MRI evidence of disc damage at L4/5 level; instability at the lumbar sacral junction; and the fact that trivial events could produce pain. These matters were inter-related and to a degree overlapping. In relation to the sensory loss in the perineal area, Dr Weisz said that the plaintiff had developed a "fairly large area of sensory loss" in that area "roughly around the buttock area, not existent before July 1985 in any of the examinations". However, he was cross-examined ag to her condition and his records of it, then and generally. Critical questions were directed to him as to his lack of records of examinations made by him. He said, for example, that, before July 1985, he had seen and examined the plaintiff every month. In referring to the "progressive neurological changes", he described them as "never before 6 UNREPORTED JUDGMENTS recorded" and the learned judge, in his judgment, in relation to this sensory loss, said that "he said only that he had never previously recorded it in his notes". He was cross-examined as to the notes kept by him following the motor vehicle accident and his Honour, I think, may well have inferred that the notes kept were less than fully adequate. But Dr Weisz, in the course of the cross-examination, reiterated that the sensory losses in the buttock and the perineal area were "a very important part of the symptoms here" and "crucial". He was questioned as to whether those symptoms "subsided after she was admitted to hospital". And his evidence proceeded: "Q.... A. Sorry, please bear with me. The symptoms weren't there in July. You are asking me a question which is not there. The symptoms in the perineal area were noted the first time in August. I am sorry, I am not trying to antagonise you. Q. Those symptoms first became manifest some time in August? A. That is my record here, first time on 14 August. Q. 14 August? A. Yes. Might have been there before. This is a sensitive area which was perhaps not mentioned to me, but it was mentioned on 14 August. Q. But not any symptoms before that? A. Not July. Q. Is this an accurate summary of the position pre the motor vehicle accident - she had symptoms which improved to a degree following her surgery and then had plateaued or levelled off thereafter up until the motor vehicle accident? A. That's correct." There was some evidence which could be argued to support Dr Weisz's statement that after the motor vehicle accident there were signs of numbness and the like in the area of the buttock: at least, there are references in the reports of Dr Millons which might support that view. But essentially the question was whether those signs, if and insofar as they existed, were due to her pre-accident condition or to an extent may have been so. On this the evidence was not compelling, one way or the other. The critical assessment of Dr Weisz's evidence which the judge made in this regard was directed, I think, to matters at the margin of this question. I see no substantial error in the observations which the judge made. The main matter to which attention was directed was whether there had been abnormality in the L4/S disc prior to the motor vehicle accident. In his oral evidence, Dr Weisz said that that disc was "normal" prior to the motor vehicle accident. He was pressed in examination-in-chief upon the matter: "Q. Was there anything in the several examinations that you, or several consultations rather, that you had with her over that period up until the car accident which indicated that she (sic) problems caused by the L4/5 disc? A. She did not have any problems with the L4/S disc." But his post-operation report of 27 November 1984 recorded the disc was "slightly bulging": it "has been decompressed but not excised". This matter was, I think, of some significance in the learned judge's assessment of Dr Weisz's evidence. There was substantial evidence that, following the motor vehicle accident, the L4/5 disc bulged or protruded. The condition of the L4/5 disc was one possible explanation of the kind of pain of which the plaintiff complained after the accident. It and instability at the lumbar sacral junction were, I think, the main explanations relied on for the plaintiff. The defendant's medical witnesses were not opposed to the condition of that disc as one explanation of her post-accident condition, although Dr Millons at least saw WRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) scarring of the nerves in the previous operation as a cause or an additional cause. It was therefore important to determine whether the L4/5 disc had been affected prior to that accident. Dr Weisz's evidence was that that disc was normal before the accident. The judge could, in my opinion, properly conclude that the post-operation report of 27 November 1984 was inconsistent with what Dr Weisz said in oral evidence and that that cast doubt upon the general effect of his evidence. Mr Semmler urged that it was not open to the judge to find or to place such weight upon such an inconsistency. It was, it may be, possible that the doctor might have thought the bulging which, during the November 1984 operation, he saw in that disc to be within the range of "normal", although his subsequent answer to which I have referred raises further difficulty. But, Mr Semmler submitted, he was not cross- examined upon the matter and therefore it was not proper for his Honour to draw a conclusion, which he urged was a medical conclusion, that what was reported after the November 1984 operation was beyond the range of the normal. There is, I think, force in this. If the position were that counsel for the defendant had not cross-examined upon that matter, the weight which could be placed upon the contrast between the written report and the oral evidence would be less. However, Mr Mater submitted that the fact that there was no cross-examination of Dr Weisz on his post-operation report of November 1984 did not have such significance. Mr Mater pointed out that, in addition to the present proceeding, a proceeding had been brought by the plaintiff against her employer in respect of the injury of July 1984. Some of the medical reports had been obtained in relation to the former proceeding. The post-operation report of Dr Weisz had been obtained in relation to the first proceeding: it was produced by Dr Millons during his evidence, after Dr Weisz had completed his evidence. It was tendered after the evidence of Dr Weisz had been completed. Objection was taken to its tender and, as the transcript recorded, it was admitted by the judge upon the basis that it would be open to the plaintiff to recall Dr Weisz to deal with matters in the report. Dr Weisz was not recalled. Therefore, the fact that Dr Weisz was not cross-examined on what his post-operative report said as to the L4/S disc does not mean that the judge was wrong to say what he did in relation to it. There was other evidence in relation to the pre-accident condition of this disc. For example, in cross-examination Dr Millons was asked to assume that this area was "normal". He referred to Dr Weisz's report as saying the disc was "slightly bulging" and said, "We are talking about degrees of bulging on these x-rays". In these circumstances, it was, in my opinion, proper that the judge refer to and rely upon the apparent discrepancy between the description of the L4/5 disc in that report and Dr Weisz's description of it in his oral evidence as being normal. It was, in my opinion, proper for the learned judge to see this as a matter going to the accuracy and acceptability of the doctor's evidence. Dr Weisz referred to the instability of the plaintiffs back at the lumbar-sacral junction. The inference suggested was that instability had not been present before the accident and consequently it was due to the accident. There were, I think, at least two things suggested in this regard. First, there was criticism of a diagnostic method adopted by Dr Weisz. He saw the fact that the plaintiff lifted herself up from the chair as being an indication of instability and "quite a reliable one". Dr Millons had never heard of this as an indication of instability and his Honour, I think, preferred Dr Millons' view. 8 UNREPORTED JUDGMENTS Second, it was the significance of possible instability in her back after the accident that, in the end, was the important matter. Dr Weisz said: "She did not have any sign of instability before (the motor vehicle accident) otherwise I would have fused the area at the time of the operation. In other words she developed two problems following the car accident, a disc at the 4/5 level and unstable lumbar sacral junction". He spoke of the shearing effect of the accident and the relationship of that to the symptoms subsequently said to have been suffered by her. Dr Ireland gave evidence before Dr Weisz and the question of whether the plaintiff's back was unstable before the motor vehicle accident does not appear to have been significantly pursued with him. Dr Millons appeared prepared to accept that there was, or there was the possibility of, such instability in the spine and he saw instability as "one possible diagnosis of her current condition". However, he did not see that as related to the motor vehicle accident but rather to the background problem which she had prior to that accident. His Honour related this question to the fact that, as Dr Weisz said, trivial events could produce pain. The doctor saw the fact that, on sneezing, twisting the torso or the like, she complained of pain as another sign of instability. His Honour, in his judgment, noted that there had been a "coughing event" which had called for pain relieving injections in March and April 1985, that is, before the motor vehicle accident. Mr Semmler submitted that his Honour was wrong in placing significance upon this because, he submitted, the orthopaedic significance of it had never been pursued. But there was, I think, no error in his Honour referring to the "coughing events": the evidence was given in the course of Dr Weisz's cross-examination as to the position of the plaintiff and her treatment prior to the motor vehicle accident. The doctor, in his evidence-in-chief, had referred to the plaintiff having "had another similar episode, for instance, a sneezing, or a simple twist of the torso...". It was, in my opinion, open to the judge to refer to the "coughing events" as he did. I have referred to the matters to which the trial judge referred when he indicated his lack of satisfaction with Dr Weisz's evidence. His Honour did not pursue each of them in detail or demonstrate the precise significance of them. But, properly understood, what his Honour said bore upon the view which he formed of Dr Weisz's evidence. I have dealt with his Honour's conclusions as to Dr Weisz by reference to inadequacies in what the doctor said. But there was other material which could, in my opinion, properly support his Honour's decision not to adopt Dr Weisz's view of the plaintiff's condition. Dr Ireland was clear that the plaintiff's present symptoms resulted from her pre-accident condition. In his report of 22 June 1990, Dr Ireland said: "When one looks at the X-rays it is obvious that she has an abnormal lumbar canal in that there is an hypertrophied mass of bone on the right side which presses the spinal contents to the left and under those circumstances it would not take much of a disc bulge to bring about symptoms. The canal is stenotic, that is there is insufficient room for the neural contents and this is not due to any accident but it is an inbuilt problem in her spine. It would appear that the minor rear end bump could not have really done anything very significant to her. She states that her symptoms now flow on at a greater level since that rear end bump. My understanding of that incident was that it was of a very minor nature and it WRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahone9 JA) seems hardly likely that it could have stirred up what was already an existing problem. It may have stirred it up temporarily but I doubt that it could really be affecting her at a great level now in relationship to the problem that was in existence before. I have only her word for this." Dr Millons expressed the belief that she did not damage the L4/5 disc at all in the accident and that the accident was not severe enough, even in a back that was susceptible, to damage the disc. The plaintiff tendered a report by Dr RG Smith, said to specialise in low back pain. The report referred to diagnostic evidence on 18 September 1984 of "a fullness of L4/5" and on 15 October 1984, "'a bulging of the 4/5 disc in extension which... is more marked than normal". These, as was indicated during the proceeding, cast doubt upon what Dr Weisz said as to the plaintiff's pre-accident condition. Upon a review of the evidence, I am not satisfied that the observations made by the trial judge relating to Dr Weisz's evidence disclose error, or error of such a kind as to warrant this Court putting aside the advantage which his Honour had in the assessment of the competing expert witnesses. His Honour did not pursue in detail each of the matters to which he referred and draw out the precise significance of it for the purpose then in question. It was, in my respectful opinion, not necessary that he do so. He sufficiently indicated his view upon the relevant matters and I see nothing in what he said to lead to the conclusion that his assessment was affected by such error as would warrant it being put aside. However, in view inter alia of the significance of the matter to the plaintiff, I have examined afresh the evidence given by the plaintiff and by the expert witnesses. The evidence as to the motor vehicle accident, particularly that given by Mr Corne, indicates that it was such that "only negligible damage" resulted. It was, I shall assume, enough to cause some exacerbation of the plaintiff's condition. But I prefer the view of Dr Ireland and Dr Millons that, given her previous back condition, it was not likely to have caused more than a temporary exacerbation. This is supported by what the plaintiff told both Dr Ireland and Dr Millons and by what appears in the report of Dr Segalov. I think the balance of the evidence favours the view that, prior to the motor vehicle accident, the disc at L4/5 level was in fact not as Dr Weisz, in his oral evidence, said it was. There is, in my opinion, some significance in the fact that, though leave was reserved for the purpose, Dr Weisz was not recalled to speak as to his post-operation report produced by Dr Millons and no explanation was suggested for not recalling him. Had Dr Weisz been reminded of his post- operation report of November 1984, it is possible his oral evidence might have been different. Taking into account those matters, I would, were I deciding the issues of fact, find the essential facts in favour of the defendant. Mr Semmuler relied alternatively upon, as he submitted, error in the admission of the pleadings in the plaintiffs claim against her employer and the inferences drawn from them. The learned judge indicated that he had reached his conclusions "without resort to them". It is therefore in my opinion not necessary to pursue the issues raised in respect of them. It remains to deal with the plaintiff's appeal against his Honour's order as to costs. His Honour said: 10 UNREPORTED JUDGMENTS "The plaintiff failed to prove the real case for which the action was brought and, in my opinion, should pay three quarters of costs of the defendant who succeeded on that case. The defendant should pay only one quarter of the plaintiff's costs." Liability was not in issue: the only issue was the quantum of damages. His Honour was clearly correct in finding that the plaintiff had failed to prove "the real case" which she put forward. The question is whether the discretionary order which the judge made on that basis discloses an error of principle which, within the principle governing review of costs orders: see generally John Fairfax and Sons Ltd v Palmer (1987) 8 NSWLR 297 at 301; warrants the order being set aside. It is, in my respectful opinion, proper to have in mind that courts of high authority have long emphasised that costs orders are not to be set aside unless there is demonstrated error of jurisdiction or principle or such an injustice as evidences a clearly erroneous exercise of the discretion: see Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115; British and Outlook Ltd v Associated Newspapers Ltd (1933) 2 KB 616; Donald Campbell and Co Ltd v Pollack (1927) AC 732. Taxation of costs according to issues won and lost is apt to be a process consuming private costs and public resources. Judges should, I think, be conscious of the desirability of making a broad assessment of the merits in this regard and what they do should not be set aside except for demonstrated error. It was not suggested that the defendant had offered damages equivalent to those recovered by the plaintiff and accordingly it was open to the judge to award the plaintiff some costs. He did this by ordering the defendant to pay one quarter of the plaintiff's costs. The question is whether he should, in addition, have ordered that the plaintiff pay three quarters of the defendant's costs. It was, I think, within a sound exercise of the discretion as to costs to conclude that the plaintiff's case and the conduct of the case did not warrant that the defendant bear all of its costs and in addition one quarter of the plaintiff's costs. The judge could properly take the view that the great bulk of the evidence in the case and the costs of conducting it related to claims on which the plaintiff failed. The evidence of Drs Ireland and Millons and the cross-examination of Dr Weisz related to matters raised by the plaintiff on which she failed. It would have been open to the judge to order that so much of the costs, as were incurred by the defendant in meeting the claim that the plaintiffs difficulty extended beyond a few weeks after the accident, should be paid by the plaintiff. That would have left to the taxing officer the task of assessing such costs. It was open to the judge himself to make that assessment within the broad parameters permitted in this regard. I see no error in the judge assessing those costs at three quarters of the costs of the defendant. They might, I think, have been assessed at a greater proportion of those costs. The result of this was that the plaintiff was required to pay three quarters of her own costs, being the judge's assessment of her costs of the issues on which she failed, and three quarters of the defendant's costs, being its costs of the issues on which also she failed. I do not think there is error in such an order. In my opinion, therefore, the appeal should be dismissed with costs. Sheller JA I have had the benefit of reading the judgment of Cripps JA and agree with it and the orders therein proposed. WRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JA)I Cripps JA This is an appeal against the decision of Holland AJ published on 31 August 1990 awarding the plaintiff $8400.00 being damages assessed at $6000 and interest on the damages in the sum of $2400. The plaintiff sued the defendant in negligence alleging that by reason of the defendant's careless driving on 8 July 1985 the motor car being driven by the plaintiff was struck from behind. The accident occurred in a car park. The defendant admitted that he was careless in the manner of driving but denied any damage to the plaintiff resulted from the accident. The issue confronting the learned judge in the first instance was whether the severity of the impact was minor, as alleged by the plaintiff, or negligible, as alleged by the defendant. The trial judge found in favour of the plaintiff. As he said, the plaintiffs car received a "minor jolt". The plaintiff claimed that as a result of the accident she suffered what she described as "an aggravation of her lower back condition" resulting in certain disabilities including pain, back lesions, restriction and capacity to do any work requiring normal use of the back when standing or sitting for long periods etc. She alleged that the accident caused a 40 per cent disability of the lumbar spine and left leg. She claimed that her earning capacity, although already impaired by reason of an accident at work on 24 July 1984, was further reduced by the car accident on 8 July 1985. She was not working at the time of the accident because of the episode at work in 1984 and the subsequent operation on her back by Dr Weisz. She gave evidence that she hoped to be able to return to work some time towards the end of 1985. She did not return to any form of employment until 1987 except on a sporadic basis. Since September 1987 she has been regularly employed and her employment became permanent in or about August 1989. However, at the date of trial, she was working for about twenty two hours per week only and earning approximately $260 per week net. The grounds of appeal are that his Honour erred in failing to find the motor vehicle accident on 8 July caused many of the disabilities from which the plaintiff presently suffers. It was said, for example, that his Honour erred in failing to find that the motor vehicle had caused a disc prolapse at the L4/5 level with a significant increase in her back symptoms. It was also said that his Honour erred in failing to find that by reason of the disabilities caused by the 1985 accident she became thereafter totally incapacitated for work as a pharmacist. Criticism was made of the findings concerning Dr Weisz, the plaintiff's treating doctor, and of comments adverse to the plaintiff. It was also alleged that his Honour erred in permitting certain documents into evidence giving particulars of damage filed in the court pursuant to Pt33 of the Supreme Court Rules and in drawing inferences adverse to the plaintiff. Finally, it was alleged his Honour erred in ordering that the plaintiff pay three quarters of the defendant's costs of the proceedings and that the defendant pay one quarter of the costs of the plaintiff. Prior to a back injury in July 1984 the plaintiff worked as a pharmacist and was employed by Knox Street Pharmacy. She had not worked for some time before the accident the subject of the present proceedings. She alleged, however, that the car accident precluded her from returning to her work as a pharmacist and that she suffered a wage loss up to the date of trial and that her loss of earning capacity at the date of the trial was approximately $200 per week. The learned judge identified the issue between the parties at page 2 of the judgment. He said: 12 UNREPORTED JUDGMENTS "As will be seen, the central issue in the case arose out of the fact that the plaintiff had had two previous injuries and two operations performed upon her lumbar spine from the second of which she had not fully recovered at the time of the motor car incident. The issue is whether the disabilities for which she claims damages in these proceedings existed before the car incident and, if so, whether they were aggravated by the collision at all and, if so, to what degree." At 14 he said: "Given that the condition of her spine immediately prior to the accident made it very vulnerable to further injury by trauma, the question is whether the minor jolt she suffered in the car incident would have been sufficient to cause her further injury or aggravate her existing injury to such a degree as to cause only a temporary increase in symptomatology postulated by the defendant or the substantial and further incapacitating increase of symptoms asserted in the plaintiff's case." I do not propose to set out the plaintiffs evidence in detail. For present purposes, it is sufficient to note that she was born on 7 August 1952. She suffered a back injury when she was 17 resulting in a laminectomy being performed at the LS/S1 level. In July 1984 she injured her back at work in circumstances demonstrating the vulnerability of her back to trauma. After the symptoms of pain increased, she underwent another operation in November 1984. The operation was performed by Dr Weisz, who gave evidence in the proceedings on her behalf. Dr Weisz's post-operation report was as follows: "Exploration of the last two levels has been performed. A large disc protrusion compressing the first sacral nerve against a narrowed canal has been found. Decompression has been achieved. Severe fibrosis from previous operation has been slowly and tediously relieved. A free pulsating dural sac was achieved. The last two nerves at the left side have been decompressed at the outlet level. A large piece of free fat graft was covering in the dural sac. L4, 5 intervertebral disk was slightly bulging, and has been decompressed, but not excised. Therefore, one large protruding disc has been, of course, removed". The plaintiff said she improved progressively after the operation in November 1984 and expected to be back at work later in 1985. As I have said, she was not able to work at the time of the car accident by reason of the work episode in 1984 and the consequent back operation. The defendant alleged that the impact caused by his vehicle was not capable of injuring the plaintiff at all notwithstanding her vulnerable back. Alternatively, and at the worst from his point of view, he submitted that the impact caused only a short term aggravation of symptoms for a few weeks and that her inability to work as a pharmacist was not the result of the car accident because she was disabled for that occupation before July 1985. There was a conflict of medical evidence. However, all the doctors agreed that the plaintiffs back was weakened by previous operations and was vulnerable to injury. Dr Weisz gave evidence and was cross examined. The trial judge made a finding that he "did not find Dr Weisz's evidence as to each of these alleged changes at all satisfactory". He referred to the doctor's failure to record certain notes and, in particular, he referred to the doctor's oral evidence that in November 1984 "the L4/5 disc was normal" which, his Honour found, contradicted Dr Weisz's own post-operative report in November 1984 when he said that the L4/5 was "slightly bulging". Notwithstanding the appellant's submission, I do not think the Court is entitled to assume that the demeanour of UWRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB Dr Weisz was irrelevant to the finding made by his Honour. It is clear, in my opinion, that his Honour formed an adverse view of the witness' credit. That is made plain by that part of the judgment in which his Honour dealt with what were apparently inconsistent findings by the doctor and his method of diagnosis. Another obstacle in the path of the plaintiff is that his Honour did not accept her evidence concerning her denial that she had told a number of doctors that a short time after the car accident in 1985 she felt she had recovered from its effects. At 21 of the judgment his Honour found: "When confronted with the histories she had given to these three doctors as to her recovery after the car incident to her former condition, she prevaricated and tried to suggest that the doctors had misunderstood and that her statements were being taken out of context but she never distinctly denied having made the statements. I found her attempts to evade the significance of those statements most unconvincing. I am satisfied that the doctors' reports and evidence as to her level of recovery after the car incident, that is, to her previous condition, are true and accurate and I find that following her discharge from hospital in August 1985 she did improve and the condition of her back reverted to what it had been prior to the car accident". Before making the above-mentioned findings, the learned judge said he relied upon and accepted the evidence of Dr Millons and Dr Ireland. It is said on behalf of the plaintiff that his Honour erred in his finding as to what was said by the plaintiff to Dr Ireland and that, because he acted on the erroneous understanding of that evidence, his findings as to the plaintiff's credit could not stand. It is to be noted, of course, that no such submission was or could have been made with respect to the evidence given by Dr Millons who examined the plaintiff on behalf of her employer's insurer for the purpose of expressing an opinion concerning her condition in July 1987 and the relevance of that condition to her back injury at work in July 1984. Dr Millons concluded that her then disabilities related to the work incident in July 1984 and that on the history given the incident in July 1985, the subject of these proceedings, "does not appear to have done anything more than cause minor aggravation of an underlying problem which settled within a few weeks". Dr Ireland's evidence was in the form of a report and he was cross examined. He said he saw her in June 1990. He said that the plaintiff had said to him after her car accident that she had settled back to her usual state of discomfort within a few weeks. She said with respect to her present complaints ie the complaints at the time of the examination in June 1990 that although her symptoms were better, they: " A re continuing at a greater level of discomfort since... the rear end bump than they had been before." Later in the same report under the heading "Conclusions" he said: "Tt would appear that the minor rear end bump could not have really done anything very significant to her. She states that her symptoms now flow on at a greater level since that rear end bump. My understanding of that incident was that it was of a very minor nature and seems hardly likely that could have stirred it up what was already an existing problem." I am not persuaded that the learned judge erred in his appreciation of Dr Treland's evidence. Dr Ireland was cross examined. The learned judge accepted his evidence. In evidence he agreed that the plaintiff told him that although she had said that after the rear end bump the symptoms settled back to the level of her earlier state of discomfort, there had been occasions up to June 1990 when they had been worse. I do not think the learned judge misunderstood his evidence. However, to the extent that it might be thought that there was some 14 UNREPORTED JUDGMENTS ambiguity about the matter, it would not, in my respectful opinion, justify disturbing the findings and conclusions of the trial judge. He formed an adverse opinion about the plaintiff's credit. He saw her in the witness box and he had before him the evidence of Dr Millons together with the examination in chief and cross examination. He accepted Dr Millons' evidence. The circumstance, if it be true (and I do not think it is), that there was some inconsistency with respect to the history taken by Dr Ireland and the conclusions of the trial judge with respect to that history would not, in my opinion, warrant intervention by the appellate court. There were, on any view of the matter, ample grounds entitling the trial judge to form the opinion he did about the plaintiff's credit. It was also submitted that his Honour's findings with respect to Dr Weisz's credibility were flawed by the circumstance that Dr Weisz was not cross examined concerning the inconsistent oral evidence he gave with respect to the findings he said he made in 1984 and the report which he furnished in November 1984. It is to be recalled that Dr Weisz said in evidence that in November 1984 the L4/5 was "normal" whereas in an earlier report prepared in November 1984 and to which I have referred, he referred to "bulging". I am not persuaded that, in the circumstances of this case, there was any error by the learned judge. Dr Weisz was cross examined concerning the relationship between the accident in 1985 and the plaintiffs condition thereafter. In my opinion, it must not be overlooked that the report with respect to the finding of "bulging" was tendered in circumstances that made it plain that there was an issue between the parties whether Dr Weisz's evidence that the disc was "normal" should be accepted. We were told that the report was admitted subject to the parties' right to recall Dr Weisz. He was not recalled. It was always the defendant's case that the impact caused no damage to the plaintiff at all but that if it did its effects were for a short time only. At page 17 of the judgment the learned trial judge found that although it was theoretically possible for the minor impact to produce such a severe injury as that claimed by the plaintiff because of her vulnerable spine. He said: "T am not convinced that the jolt to her body described by the plaintiff was caused by the degree of force suggested by Dr Weisz's description of the mechanism by which instability could be caused to the plaintiff's lumbar sacral junction and I am not persuaded that the force was great enough to cause the disc prolapse that Dr Weisz suggested appeared at the L4/5 level for the first time after the car accident". In my opinion, the conclusions of the trial judge were open. He heard and saw the witnesses. His conclusions were supported by medical evidence from Drs Millons, Segelov and Ireland. The learned judge formed certain impressions concerning the credibility of witnesses. For reasons which I have given, I do not think it is open to this Court to interfere with those findings (see Brunskill v Sovereign Marine and General Insurance Company Ltd (1985) 59 ALJR 842 and Abalos v Australian Postal Commission (1991) 171 CLR 167). In the written submissions it was said that his Honour erred in law in not allowing the amount of $2337 by way of out of pocket expenses. In my opinion, no error has been demonstrated. The circumstance that it was not disputed that the expenses were incurred does not assist the submissions. As I have said, it was the defendant's case that the impact caused no damage to the plaintiff at all. There was no breakdown of the out of pocket expenses to show what they were during the three month period of aggravation caused by the injuries. UWRIDNER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB On the above findings, it is unnecessary for me to determine whether the learned judge was correct in admitting the statement of claim and the particulars of injury furnished pursuant to Pt33 r8A with respect to the plaintiff's work injury in 1984 and to draw inferences adverse to the plaintiff with respect thereto. In 1986 the plaintiff alleged that the disabilities she now says were caused by the car accident were caused by an incident at work in 1984. It was submitted on her behalf that the allegations and particulars could not be attributed to the plaintiff or used against her. The learned judge observed that this submission overlooked the principle that: "In court proceedings her legal advisers are not only to be regarded as her agents as they are, but also as acting upon their client's instructions". It is submitted by Mr Semmler, on behalf of the plaintiff that conformably with the observations of members of the High Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 the documents were not admissible. It was also submitted that if the documents were admissible, the learned judge erred in drawing inferences adverse to the plaintiff from them. Mr Semmler pointed to the circumstance that the two sets of particulars under Pt33 r8A were filed on the same day and in circumstances where it should be assumed it was not intended by the plaintiff or her legal advisers to mislead but rather to ensure that the issues that the plaintiff wished to raise could be properly litigated. It is unnecessary for me to express an opinion concerning whether the documents filed pursuant to Pt33 r8A could properly be described as a "pleading" as submitted for the very good reason that the learned judge held that his conclusions did not depend upon inferences arising out of those documents. Mr Semmler then submitted that the Court should not accept the statement of the learned judge. I reject that submission. Finally, it was submitted that the learned trial judge erred with respect to the order he made that the plaintiff pay three quarters of the defendant's costs and the defendant pay one quarter of the plaintiff's costs. Costs are in the discretion of the Court (s76 of the Supreme Court Act (NSW) 1970). Ordinarily costs follow the event. A trial judge has discretion to deprive a successful party of costs in special circumstances which must be on grounds connected with the litigation (see Donald Campbell and Co Ltd v Pollak 1927 AC 732). An appeal court is slow to interfere with the exercise of discretion of the trial judge. The learned judge said that the plaintiff failed to prove the "real case" for which the action was brought and for that reason made the orders referred to above. I have come to the conclusion that the learned judge's discretion miscarried with respect to the order for costs. There was no payment made into the Court and no offer of compromise. The defendant denied liability to the plaintiff. Its case was that the impact was so slight it could not have aggravated the plaintiff's condition at all. It called the park attendant, Mrs Britten, to say that there had been no damage done to the plaintiff's car. That evidence was rejected by the trial judge who accepted the evidence of the plaintiff and the plaintiff's husband on this issue. Mr Mater has submitted that the Court should have regard to the provisions of Pt52 R24 for the evident purpose of discouraging cases being brought in the Supreme Court which should have been brought in the District Court. Pt52 R24(2) relevantly provides that the plaintiff was not entitled to an award of costs unless the Court otherwise ordered. Holland AJ ordered that the defendant pay the plaintiff one quarter of her costs. I can detect no error in that order. 16 UNREPORTED JUDGMENTS However, the learned judge went further and ordered that the plaintiff pay the defendant three quarters of its costs notwithstanding that the plaintiff was successful in establishing that she suffered injury by reason of the negligent driving of Mr Corne. The practical result of his Honour's order is that, although successful in the action, the plaintiff will be required to pay half of the defendant's costs. I do not think that it can be said that the plaintiff's back condition one or two years after the accident was truly a severable issue. It must be remembered that the starting point for the defendant was that the accident caused no problems at all for the plaintiff. I would therefore set aside so much of his Honour's order with respect to costs as requires the plaintiff to pay three quarters of the defendant's costs. I would make the following orders: 1. Appeal dismissed except as to costs. 2. So much of the costs order as obliges the plaintiff to pay three quarters of the defendant's costs set aside. The plaintiff to receive one half of her costs of the appeal. Counsel for Appellant: PCB Semmler / T Boyd Instructed by: Geoffrey Edwards and Co Counsel for Respondent: HJ Mater Instructed by: GM Meadows - Solicitor for GIO