RUKIYE DOGAN v AKIF DOGAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P CLARKE JA and Hope AJA 27 March 1992, 27 March 1992 [1992] NSWCA 59 NEGLIGENCE — ERROR IN TRIAL JUDGMENT — TRIAL JUDGE OVERLOOKING EVIDENCE — ERRONEOUS REASONING CASE REMITTED FOR NEW TRIAL — NO QUESTION OF PRINCIPLE Kirby P I shall ask Clarke JA to deliver the first judgment. Clarke JA The trial judge in this case was placed, through the exigencies of his work, in a difficult position. The trial was not an unduly complicated one, but he was required to give judgment at 3.50 pm on a Friday afternoon, which meant that he had no time to deliberate and reflect upon the serious issues which had been thrown up. I shall emphasise that when I say, "was placed" I do not intend any criticism against anyone. The position was that his Honour was leaving Sydney for five weeks following the conclusion of this trial and any judgment would have been much delayed if it had been reserved. The unfortunate consequence of his Honour's inability to reflect upon the matter is that a number of what seemed to me to be patent mistakes were made. At any early stage in his Honour's judgment his Honour stated that he was satisfied that the plaintiff had established a causal nexus between all of the treatments to which she had been subjected as a result of the negligence of the defendant, yet when he came to consider what out-of-pocket expenses should be allowed, he rejected all but one. This stand is understandable in the light of other comments in the judgment but it is quite inconsistent with the earlier statement which I have set out. The suggestion was put to the court that there may have been a typographical error and the word "not" might have been left out, so the passage should have read, "I am not satisfied". Certainly the judgment would read more happily if the word "not" were there. Even though this court must proceed on the basis that his Honour saw the judgment and corrected obvious errors in it, I would be hesitant to set aside the judgment on this apparent error alone. My hesitance would result from the possibility that there had been a typographical error and it may be, if that had been the only possible error, that it would be appropriate to have clarification from his Honour. However, there are other problems which are significant and which cannot be regarded as in the area of typographical error or other slip. His Honour made specific reference to an item which was tendered as Exhibit G12 in the hearing. This was an account from IIkin Kender, physiotherapist, in which a charge was made for five treatments for upper back pain prior to October 1985. His Honour concluded from this account that by that date, or at least September 1985, the low back pain about which the plaintiff complained had not commenced to manifest itself. What his Honour said was: "So, as of September 1985 it is reasonable to assume that no low back pain had commenced to manifest itself." 2 UNREPORTED JUDGMENTS Unfortunately, his Honour overlooked other evidence in the trial. In the first place there was a statement in the Mildura Base Hospital report that immediately following the accident, x-rays were taken of: "Skull, cervical spine, lumbar spine and thoracic spine". The possibility does exist that x-ray of the lumbar spine was merely taken as a precautionary matter and that in view of the terms of the letter, no specific complaint of pain in that region was made. Even if that be right, there is the clear evidence of the history given by Dr Bannister on 1 July 1985, which includes reference to an injury to the low back with radiation down into the right leg. Although the plaintiff said in evidence that at that time her left leg was involved and that she doubted she told Dr Bannister it was her right leg, there nevertheless exists clear evidence of a complaint by her of low back pain well before September 1985. His Honour's conclusion was based on portion only of the evidence and was undoubtedly wrong. This was an important error, because in his ultimate conclusion his Honour was satisfied that complaints of low back pain had nothing whatsoever to do with the motor vehicle accident. There can be no doubt that that conclusion resulted, in part, from the earlier assumption that no low back pain had commenced to manifest itself as at September 1985. Accordingly, the conclusion, which was an important one, was based on erroneous reasoning, and cannot stand. Another complaint was made by counsel for the plaintiff that his Honour's process of reasoning was erroneous insofar as his Honour indicated that he was not satisfied as to the causal relationship between low back pain, left shoulder complaints, lower arm complaints and leg complaints and the motor vehicle accident, while at the same time indicating that for that reason he did not have to consider whether they were genuine complaints or whether they found their origin in some other cause. It seems to me that there is some force in this submission in the sense that unless the conclusion is reached that the complaints are genuine there could be no question of examining their origin or aetiology. It is possible to assume that they are genuine complaints and, nevertheless, to decide that the causal nexus between those complaints and the accident has not been made out. If one took that approach it would be necessary, as I see it, to examine the possible other sources of the complaints. His Honour simply has not done that. Without explaining why, he has determined that the causal nexus has not been made out. In the face of these errors, it seems to me that the judgment under appeal cannot stand. Both the reasoning and the conclusions which led to the ultimate award were flawed by serious errors of fact. The question then arises whether this Court is in a position to re-assess the damages. There was, it seems clear from his Honour's judgment, a very serious credit issue which fell for determination. Counsel for the defendant at the trial sought, to use his Honour's words, "to deflate the whole of the plaintiffs claims particularly by pointing to the inconsistencies in the history". If that credit issue had been clearly resolved, this Court may have been in a position to proceed upon the basis that his Honour's conclusion as to credit should be accepted. I say "may" because in the light of the terms of this judgment, even if there had been a finding of credit, the possibility remained that the court would, nevertheless, be unable to carry out a re-assessment. However, there is no clearly spelt out finding of credit and although it might be thought that his Honour took an adverse view of the plaintiff's credibility, there may be, as URJ RUKIYE DOGAN v AKIF DOGAN (Hope AJA) 3 counsel has pointed out, some statements which indicate that his Honour accepted the plaintiff, in part at least, as a reliable witness. Where, therefore, there has been no clear adjudication on this critical question of credit, it seems to me that the conclusion should follow that the court should remit the case to the District Court for a new trial. In the circumstances I would propose that the judgment of his Honour Judge Mahoney be set aside, except as to costs; that a new trial be ordered; that the respondents pay the appellant's costs of the appeal and, if qualified, have a certificate under the Suitors Fund Act. Kirby P I agree. Hope AJA I agree. Kirby P: The orders of the Court are that the appeal be allowed and the other orders as indicated by Clarke JA are made. To the orders that the Court has made, we will add the following additional order: That the appellant have liberty to apply to the Court, which may be constituted differently, for an indemnity certificate in respect of the costs of the appeal, having regard to an offer of compromise which is said to have been made by the appellant to the respondents before the hearing of the appeal. Counsel for the appellant: R Goodrich Solicitors for the appellant: Stacks Counsel for the respondent: GR Petty Solicitors for the respondent: GW Meadows