LEWKOVITZ v RICH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and Cripps JA 25 June 1993, 25 June 1993 [1993] NSWCA 161 NEGLIGENCE — medical practitioner — ENT specialist — whether breach of duty of care — whether failure to give adequate warning to patient to avoid exposure to noise — judge prefers patient's version — appeal dismissed. COSTS — recovery of judgment less than $50,000 — judge orders full costs — declines indemnity costs following compromise offer — held: consider costs globally — appeal and cross-appeal dismissed. NEGLIGENCE — medical practitioner — specialist ENT — whether failed to fulfil duty of care to patient — whether failed to provide warning to the patient concerning avoidance of exposure to high noise levels — patient alleges no warning given — claims serious noise loss follows attendance for 4 hours at discotheque — seeks and recovers damages of $43,000 (including $18,000 interest) for acceleration of constitutional condition of deafness — factual issue at trial concerning what was said by medical practitioner to patient — judge prefers patient's version that no relevant warning given — held: (Cripps JA: Gleeson CJ and Kirby P concurring): On the factual findings of the trial judge, there was ample evidence that no sufficient positive warning was given to the patient — this, on the evidence, constituted negligence — appeal dismissed. COSTS — level of recovery — appeal and cross-appeal — recovery of judgment of less than $50,000 — judge orders costs on highest scale — offer of compromise made — judge refuses indemnity costs — held: Discretionary order — no ground for interference — matter considered globally — appeal and crocs-appeal dismissed. Cripps JA This is an appeal from a decision of Sharpe J awarding damages to the respondent in respect of the negligent conduct of her treating specialist doctor. When the appeal was lodged there were three issues for determination. The first was whether the appellant had a duty to warn the respondent in her vulnerable condition of the dangers of exposing herself to excessive noise. The second was, if he did, did he fail to fulfil this duty either at all or adequately, and involved in this was a question whether any information which he passed to her at the appropriate time was adequately communicated. A third was whether or not the respondent suffered damage as a result of the appellant's breach of duty. The learned trial judge found that, by reason of no proper warning, the respondent's progression towards deafness was accelerated by two years and compensated her for that accordingly. Upon the appeal being opened, Mr Higgs abandoned challenges to the first and third of the matters I have mentioned and, thereupon, this Court is concerned only with the question whether the respondent failed adequately to fulfil the admitted duty. The outcome of this appeal depends upon what the learned trial judge meant when he said during the course of his judgment that the appellant had given no positive warning to the respondent to avoid situations of excessive noise. The respondent's version at trial was that, at the relevant time, being February 1983, she consulted her doctor because she had 2 UNREPORTED JUDGMENTS noticed (or it had been pointed out to her) that she may be having hearing difficulties. At the consultation she was given no warning of any kind at all concerning the need for her to avoid excessive noise. She went back to the doctor in May 1983. In the interim her hearing had further deteriorated and no warnings were given. She went to a discotheque in July 1983 and, immediately upon coming out about four hours later, she thought she had gone deaf. She had not gone totally deaf, but her condition had deteriorated rapidly. She was viewed by her doctor, whom she consulted immediately, as a medical emergency. The appellant's version was that when he first examined the respondent in February he did advise her to avoid excessive noise. He said he referred to the need to avoid things like lawn mowers and motor bikes. In his evidence he said that he actually questioned her to ensure that she understood what it was that he was warning her about. The learned trial judge rejected the appellant's version. And he did so for a number of reasons, not the least of which was that he rejected his credit. This Court, in the circumstances of this case, could not possibly interfere with his findings in that regard. There were grounds for his conclusion. First, there was what appeared to be an inconsistency between what was said in evidence under oath and what was said in the interrogatories under oath. There was also potential inconsistency between his evidence and what was said in a letter he wrote at a time when he thought he was not the person being targeted as a defendant. There was also a statement he made on 4 July after the respondent consulted him immediately after her alarming loss of hearing at the discotheque in which he made a comment capable of the construction that at least he recognised that anything that had been said could not amount to an adequate warning of the dangers. The trial judge made two findings which Mr Higgs has concentrated upon. The trial judge said: "T am persuaded on the balance of probabilities that the defendant may have said something about motor bikes or lawn mowers, but I am more persuaded that he failed to communicate definite warnings that the plaintiff should avoid excessive noise." Later, at 245 of the appeal book, he said: "Whilst I have already indicated the plaintiff was not a most satisfactory witness, I prefer her version to that of the defendant. He may have made flippant remarks about keeping away from lawn mowers and motor cycles but he certainly gave the plaintiff no positive warning to avoid situations of excessive noise." To my way of thinking and, notwithstanding Mr Higgs' careful submissions as to why his credit should not have been damaged as much as the learned trial judge said and why there was insufficient evidence to support the finding he made, there really is no ambiguity in what the learned trial judge was saying. He was prepared to accept, for the purpose of his findings, that there may have been some reference, in the way the learned trial judge characterised it, to the avoidance of lawn mowers and motor bikes. But he, without any ambiguity, rejected any suggestion that what was said amounted to a warning that the respondent should avoid excessive noise. Of course, the Court does not have its own specialised medical knowledge. But it does seem to me that there is an ocean of difference between telling a person who has a hearing problem to avoid something like a motor bike or a lawn mower URJ LEWKOVITZ v RICH (Kirby P) 3 and positively warning that person that not only might that lead to discomfort, but it could cause serious diminution in hearing as a result. lam of the opinion that there was ample evidence available to the judge for the conclusion he came to, namely, that there was no positive warning given to the respondent. That being so, and on the only ground raised in the appeal, the appeal must be dismissed. There is also an appeal and cross appeal on the question of costs. The learned trial judge awarded costs on the nighest scale. The judgment was for the sum of $43,000 and the relevant amount below which prima facie a plaintiff was entitled only to receive a proportion of the full costs was then $50,000. It was apparently brought to his Honour's attention that the appellant had offered to accept by way of compromise a sum of money less than the amount which she received but the details of the amount offered were not made known either to the trial judge or to this Court. It is my inclination that we should not interfere with the learned trial judge's order. I think the matter should be looked at globally. The appellant was awarded costs on a scale higher than that to which she was prima facie entitled and she did not get indemnity costs to which she was prima facie entitled. I think the one probably sets off the other. I would not interfere. I would also propose that the appellant pay the respondent's costs of this appeal. Gleeson CJ I agree. Kirby P I also agree. Gleeson CJ: The orders of the Court are as proposed by Cripps JA. The orders of the Court will be the appeal and cross appeal are dismissed and the appellant should pay the respondent's costs of the appeal 1. Appeal and cross-appeal dismissed; and 2. The appellant to pay the respondent's costs of the appeal. Representation: Counsel for the Appellant: D J Higgs/G R Waugh Solicitors for the Appellant: Tress Cocks and Maddox Counsel for the Respondent: M B Williams Solicitors for the Respondent: Garland Hawthorn and Brahe