GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ANDREW THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 13 August 1992, 13 August 1992 [1992] NSWCA 77 DAMAGES — quantum — no question of principle. Handley JA This is an appeal by the defendant from a judgment of Lloyd-Jones DCJ given at the District Court Lismore on 31 May 1991. There was no dispute as to liability at the trial and the sole issue before his Honour was the assessment of the plaintiff's damages. The trial judge awarded the plaintiff general damages amounting to $40,000, $22,500 for the past, $17,500 for the future and a cushion against possible future economic loss of $7,500. The plaintiff sustained injuries in a motor vehicle accident which occurred on 8 May 1987 when she was sixteen years of age. She was taken by her father, who was the driver, to the Lismore Base Hospital and her condition on admission is clearly established by the terms of the hospital report. Her general condition on presentation was satisfactory but tenderness and bruising over the right knee were noted and minor abrasions and tenderness to the left upper chest wall. The plaintiffs case at the trial was that as a result of the accident she had suffered an injury to her neck and to her right knee. So far as the neck is concerned there was no complaint of neck problems on presentation at the hospital and the neck injury was in the nature of a whiplash type. The plaintiff's evidence in chief established an unpromising start for a case claiming substantial damages for neck and knee injuries following the accident. Having given evidence that she was taken by ambulance to Lismore Base Hospital and then allowed to go home the following evidence was given:- "... Q. When you got home from hospital, did you notice anything about, first of all, your head or your neck? A. No. Q. Did you notice anything about your knee? A. No. Q. In the next couple of days, after the accident, did you notice anything about yourself in terms of pain; have any pain anywhere? A. No. Q. No pain at all? A. No. Q. In your leg at that stage? A. No. Q. When did you first notice something wrong with your head and your neck? A. Six months after the injury - after the accident. Q. Iam sorry? A. Six months after the accident. Q. When you say six months after the accident, what is it you noticed about yourself? A. My leg started really hurting, my knee. HIS HONOUR: Q. Any other part of you starting hurting? A. The back part of my neck as well... " 2 UNREPORTED JUDGMENTS Other evidence established that the plaintiff went back to school, inferentially the day after the accident, and remained at school until the end of the year. She did commence taking painkilling tablets in November/December after she began to experience pain and about the same time she purchased a set of crutches from the local chemist which she used in order to mitigate the effects of pain in her knee. For understandable reasons the plaintiff was not in any position to prove what moneys had been spent by her or on her behalf on medical treatment following the injury in May 1987. Such expenses as were incurred were paid through Medicare and there was no evidence at the trial of when she had medical attention for her condition and from which doctors. Accordingly, the extent of any medical treatment she received was left entirely unproven. She did, however, say that she had never been to a physiotherapist at any stage. The first record in the material of medical attention prior to the commencement of proceedings was when her local doctor referred her to Dr Ashwell in August 1989. The trial judge said that he was quite satisfied on the totality of the evidence, especially the medical reports including the report from Lismore Base Hospital, that her problems to her neck and knee were in fact caused in the collision. He said that there was no suggestion of any other possible cause. He noted the plaintiff's evidence in chief that it was some six months before symptoms of any significance in the neck and knee emerged but his Honour put this evidence to one side because he found her a very vague witness who was indefinite in her mind and at the time had only been sixteen years of age. He said that he had no difficulty in concluding that the origin of her difficulties was in the accident and the problems tended, as it were, to develop to the point where they became quite serious for her. Later in his reasons for judgment he said that when the pain to the head and neck area became more severe than it had been immediately after the accident the pain would last about half an hour and be of a severe kind and it came every two weeks on average. Here again his Honour has disregarded the plaintiff's evidence in chief that she had no pain in her head and neck area immediately after the accident. With all respect to his Honour I cannot accept that he was entitled to disregard the plaintiffs evidence in this way. Her evidence which I have referred to as the absence of symptoms between the accident and the period some six months later was not vague. It was clear and specific. There was nothing indefinite about it. It established, in my opinion, in a manner which could not be explained away in the fashion attempted by the trial judge, that there was a total absence of appreciable discomfort or symptoms for a period of some six months between the accident and some point of time in November/December six months later. The judge said that there was no suggestion of any possible cause of the plaintiff's symptoms which emerged six months after the accident other than the accident itself. Here again, with respect, his Honour failed to properly absorb or understand the very clear statements in the report of Dr Thompson of 17 August 1990, which were tendered on behalf of the defendant at an early point in the trial before the plaintiff was called to give oral evidence. Dr Thompson recorded, consistently with the evidence of the plaintiff herself at the trial, that the plaintiff had told him that her neck did not become sore until six months after the accident when she was working in a video shop and that she did not know why her neck discomfort then started. Dr Thompson was not given \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ANDREW (Handle? JA) a history of the plaintiff's complaints of pain in the right knee which was consistent with her evidence at the trial. Nevertheless, alone of the doctors who examined her, he observed or at all events reported, that the plaintiff had a laterally subluxing patella in the right knee which was associated with crepitus during movement. A similar condition was present in the asymptomatic left knee. He further reported that the plaintiff had a constitutional variation on normal bone alignment in both knees due to inturning of the femur and that people in her age group often have symptoms from the patella in their teenage years as a result of this condition which generally ultimately resolved. He also reported that there was no abnormality, either clinical or radiological, in the right knee which could be attributed to the accident. This evidence that her right knee was clinically and radiologically the same as her left knee which was substantially the only evidence called for the defendant, was not referred to in any way in his Honour's reasons for judgment. However, its existence on the record demonstrates that his Honour mistook the facts and the evidence when he said that there was no suggestion of any other possible cause of the plaintiff's symptoms in her right knee. In these circumstances I am of the opinion that this Court can be satisfied that his Honour fell into error in the matters that I have referred to and that his Honour's assessment must, therefore, be set aside. The question then arises as to whether this Court is in a position to re-assess the plaintiff's damages or must order a new trial. No question of credibility arises. Mr Christie relied upon the plaintiff's evidence that some six months after the accident: - "... A. My leg started really hurting, my knee... " and that this evidence was consistent with the view found by his Honour and reported in the history by Dr Hefner that there had been continuing low level symptoms of pain and discomfort which for some reason became considerably worse some six months after the accident. However, I do not think that it is possible to read the plaintiff's evidence in chief in this way. She had earlier said that there was no pain and no pain at all in her knee immediately after the accident and the evidence in this respect is clear. The plaintiffs evidence in this respect should be read as a whole. In these circumstances I am satisfied that no question of credibility really arises and that this Court is in a position to re-assess so far as the evidence of the plaintiff herself is concerned. So far as the medical issues are concerned the plaintiff, or should I say the plaintiff's legal advisers, were content to allow this action to proceed to an assessment without any medical witness being called in the plaintiff's case. There is every reason to accept that Dr Thompson's report on behalf of the defendant of 17 August 1990 had been served on the solicitors for the plaintiff well in advance of the trial and in accordance with the provisions in the District Court Rules. The plaintiff's legal advisers were, therefore, on notice that Dr Thompson was of the view that no causal link existed between the plaintiffs neck and knee conditions and the accident and, furthermore, that Dr Thompson had found on examination abnormal conditions of a constitutional nature in both knees which could not be attributed to the accident. No attempt was made to meet Dr Thompson's report either by requalifying some doctor on behalf of the plaintiff to deal with it and tendering that doctor's report, by calling any of the doctors who had seen the plaintiff or by calling Dr Thompson for cross-examination. The matter, therefore, was left on the basis of conflicting medical reports. The plaintiff has the disadvantage that the medical reports which are in her favour are based, to a significant extent in my opinion, " 4 UNREPORTED JUDGMENTS on a medical history from the plaintiff which was not supported by her evidence at the trial and was inconsistent with her evidence at the trial. There is some room for debate as to the nature of the history taken by Dr Hefner, but it seems to me that it is not consistent with the plaintiff's own evidence at the trial. This necessarily deprives the medical evidence given in report form for the plaintiff of a great deal of its weight. There is also the fact that the report of Dr Thompson was not answered and the other doctors had not even become aware of the presence of this constitutional condition in the plaintiffs knees. I do not see any reason in this state of the evidence why this court should be unable to assess the plaintiff's damages. It must do so bearing in mind that the onus is on the plaintiff to prove the damages to which she is entitled as a result of the injuries she received. Where the medical evidence for a plaintiff is left in the unsatisfactory state in which this medical evidence was left, it necessarily means, in my view, that the plaintiff has failed to discharge the civil onus of proof. I conclude in all the circumstances that this Court is in a position to re-assess the plaintiff's damages. On this basis it seems to me the court cannot be satisfied that the neck or knee conditions which the plaintiff first noticed were painful some six months after the accident are causally related to that accident. This means that the plaintiff is only entitled, in my opinion, to be compensated for the injuries reported when she presented at the Lismore Base Hospital as set out in the report of 18 April 1990. Necessarily the compensation for those injuries must be modest indeed. Doing the best I can I would award the plaintiff $2,000 damages. The orders I would therefore propose are: 1. Appeal allowed. 2. Set aside the judgment of the trial judge. In lieu thereof substitute judgment for the plaintiff for $2,000 with effect from 31 May 1991. 3. The plaintiff is to have the costs of the trial on the scale appropriate to an award of $2,000 and the plaintiff must pay the costs of this appeal but is to have a certificate under the Suitors Fund Act. Clarke JA I agree with the orders proposed by Handley JA. I also agree with his Honour's reasons except to the extent that his Honour would not find the history given to Dr Hefner was consistent with the evidence of the respondent in the witness box. To my mind it is reasonable to read that history as in accord with what she said in the witness box to the extent that the doctor worked upon the premise that there were no serious complaints of knee problems until six months after the accident. Even, however, on that basis I am unable to accept on a re-assessment that the respondent established a causal nexus between her disabilities after November in 1987 and the accident in question. Because the respondent's legal advisers were prepared to allow the matter to proceed on the basis of medical reports without oral evidence, the situation developed that there was a clear conflict between the opinions of Dr Hefner and Dr Thompson. Nothing in the evidentiary material which was led at the trial would persuade me there was any reason for accepting one opinion in preference to the other and for this reason I would conclude that the respondent failed to establish the causal nexus which is necessary to an order of the kind made by the judge. Accordingly, I agree with Handley JA. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ANDREW (SamuelS AJA) Samuels AJA I agree the appeal should be allowed for the reasons given by Handley JA. I would add one thing more. I do understand the problems which affect the availability of doctors to give evidence, particularly sometimes in country courts, and I would not say anything to limit the application of the rules which permit the tender of medical reports. But, nonetheless, during the course of this week we have seen cases where there appears to be an irreconcilable conflict between medical opinions in reports tendered for the plaintiff on the one hand and for the defendant on the other. This presents great problems for trial judges and which may then present problems for this Court as well. I think, therefore, that perhaps the rule to which I have referred is running away with itself a little, and that practitioners need to consider with more care, if I may respectfully say so, whether they will summon medical witnesses for cross-examination. I agree with the orders proposed. Clarke JA: The orders of the court will be as Handley JA has indicated. 1. Appeal allowed. 2. Judgment of the trial judge is set aside. In lieu thereof judgment for the plaintiff for $2,000 with effect from 31 May 1991 is substituted. 3. The plaintiff is to have the costs of the trial on the scale appropriate to an award of $2,000 and the plaintiff must pay the costs of this appeal but is to have a certificate under the Suitors Fund Act. Counsel for the Appellant: G R PETTY Counsel for the Respondent: T J CHRISTIE QC/P M MOYLAN Solicitors for the Appellant: MR STEPHEN MILLS, NEWCASTLE Solicitors for the Respondent: TRENCHES, LISMORE