CHARSLEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and CRIPPS JJA 22 March 1993, 22 March 1993 [1993] NSWCA 57 DAMAGES — quantum — no question of principle. Handley J This is an appeal from a decision of Master Malpass in a motor vehicle case. The learned Master was hearing an assessment of the plaintiff's damages arising from an accident which took place on 4 November 1986 after the plaintiff, who was a tradesman tiler employed by his own company, had ceased work for the day. In a long and generally careful judgment the learned Master gave reasons for rejecting the substance of the plaintiff's case in which he concluded the plaintiff had not persuaded him on the balance of probabilities that his back condition was causally related to the motor vehicle accident. On this basis the plaintiff's case was a modest one only and attracted only a modest assessment of damages at $19,500. In support of the appeal Mr Harris has isolated two matters which, in his submission, demonstrate errors on the part of the learned Master of such a kind as to warrant this Court ordering a new trial of the proceedings. I should explain that the plaintiff had been at work in his occupation as a tradesman tiler on the day in question. At some stage he lifted a full bag of cement and the Master found he thereby injured his lower back. The plaintiff remained at work until the ordinary closing time and then arranged at short notice to attend at his normal chiropractor to have a manipulation of his lower back to relieve the pain and discomfort that he was then experiencing. The plaintiff did so and then either went home again, having previously gone home from work and changed, or continued on his way home. He suffered the motor vehicle accident on the journey from the chiropractor's premises to his home. The impact was a severe one and the steering wheel was forced against the plaintiff's chest, breaking his breastbone. The plaintiff was taken by ambulance to the rooms of his general practitioner, Dr Sartori, where he was seen by the doctor who arranged for x-rays of his chest and back. Those x-rays confirmed the fracture of the breastbone and disclosed no evidence of recent trauma to the back. In dealing with the cross examination of the plaintiff the Master said this: "He was then cross examined, in relation to the contents of various documents, including notes from his chiropractor and documents relating to workers ' compensation claims. The latter documents consisted of a Report of Injury, a Claim by Injured Worker to be served upon Employer and a Claim for Injury on the Journey. He had made no mention of any injury, from a car accident, to his chiropractor. He agreed that s16 of the Report made no mention of the motor vehicle accident causing him any injury. It recorded the receiving of back strain as the result of the lifting of a bag of cement. That section had been completed 2 UNREPORTED JUDGMENTS by his accountant, who had recorded what the plaintiff had told him. The form had been signed by his wife. The Claim for Injury form records that he went to the chiropractor to have a back strain manipulation because of work done during the day. The material had also been written on the form by his accountant, who had been given that information by the plaintiff." It will be seen that at 188U the learned Master said, "He made no mention of any injury from a car accident to his chiropractor". Taking this statement literally, it is clear that the learned Master misunderstood the evidence because the car accident occurred after the plaintiff had left his chiropractor to go home. However, at two other places in the judgment the learned Master correctly noted the true position, which was that the accident had occurred after the plaintiff had left his chiropractor. Mr St John has submitted that the reference in this sentence to "chiropractor" is an obvious mistake for "accountant"; that what the learned Master intended to say, which is apparent, in his submission, from the context, is that the plaintiff made no mention of any injury from a car accident to his accountant. This is a correct statement and it is consistent with the context in which the learned Master made the statement in question. He had earlier referred to the claim forms which the plaintiff had signed following the accident in which he had been assisted by his wife and his accountant, as is apparent from the fact that the handwriting of all three of them is to be found on most, if not all, the claim forms. The immediately following sentence in the judgment states that the plaintiff agreed that s16 of the report made no mention of the motor vehicle accident having caused him any injury. This would be appropriate in the context if the reference to his chiropractor had been to his accountant because the plaintiff did say that s16 was filled in by his accountant and referred to this subject matter. In view of the correct statements made by the learned Master in two other places in his judgment I have been persuaded by Mr St John's submissions that the reference in the critical sentence to "chiropractor" is an obvious slip for "accountant". Accordingly the appellant has failed to make good his first challenge to the Master's decision. The second challenge is based upon the way the learned Master dealt with the evidence of Dr Voss, who was called by the defendant to give oral evidence in relation to the causation of the plaintiff's injuries. The question which the learned Master had to decide was whether the admitted back condition of the plaintiff had been caused wholly or in part by the motor vehicle accident, or had been caused by earlier trauma to the plaintiff's back, including the injury at work lifting the bag of cement earlier on the same day. As I have said, the Master concluded that he could not be satisfied on the civil onus that the plaintiff had discharged the onus of showing that the motor vehicle accident was the cause, or a contributing cause of his back disabilities. Mr Harris submitted that the Master misunderstood the true effect of Dr Voss' evidence and the Court was referred, in appropriate detail, to Dr Voss' evidence in his first and second reports and in cross examination and re-examination. In particular, Mr Harris relied upon the cross examination of Dr Voss at or about p 91 of the appeal papers. At this point in the cross examination the doctor was invited by senior counsel for the plaintiff to make a number of assumptions and Dr Voss indicated that he was prepared to make those assumptions. \WRWARSLEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JA) On this basis he gave some evidence which on its face appears to support the plaintiff's general position in the litigation and which at first glance appears to be inconsistent with the treatment of Dr Voss ' evidence by the learned Master. However, the difficulty in the way of the plaintiff in this part of the case is that Dr Voss was never invited to make any assumption about the injury at work earlier on the day in question. In the result the evidence in question is based upon an incomplete set of assumptions which is inconsistent with other undisputed evidence in the case. Dr Voss was never asked to express an opinion as to what his opinion would be if the plaintiff had suffered two injuries on the day in question, an injury involving strain to his lower back and neck followed by a crushing injury to his chest in the motor vehicle accident causing the fracture of the breastbone. In view of the incomplete history put to Dr Voss I have been persuaded that the evidence that Mr Harris relied upon, and which he submitted was inconsistent with the Master's treatment of Dr Voss ' evidence, does not really have any persuasive weight. That evidence is based upon an incomplete history which is contrary to the rest of the evidence. In those circumstances both challenges to the decision of the learned Master fail. Accordingly, in my view the appeal fails and should be dismissed with costs. Meagher JA I agree. Cripps JA I agree. Meagher JA: The order of the Court, therefore, is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: I HARRIS Instructed by: BARRETT EDMUNDS and Co, NELSON BAY Counsel for the Respondent: RJB ST JOHN QC/GR PETTY Instructed by: GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES