WBH INVESTMENTS PTY LTD (TRADING AS BIG ROOSTER) v NASSIF [1993] NSWCA 284

WBH INVESTMENTS PTY LID (TRADING AS BIG ROOSTER) v NASSIF

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA

14 December 1993, 14 December 1993

[1993] NSWCA 284

Damages — Assessment based upon expert evidence

Clarke JA This is an appeal against an award of damages in the amount of $85,000 by a jury. The trial was conducted before Judge Cooper and the jury in February 1991. Liability was admitted and the jury were required only to assess the damages. The injuries sustained by the respondent followed from a slipping incident in a retail fast food outlet conducted by the appellant and known as The Big Rooster. That incident occurred on 1 July 1986. The out of pocket expenses were agreed at $1,462.55. There was no claim for economic loss and consequently the balance of $83,500 approximately was awarded as general damages.

The appellant has submitted that this award is beyond all reasonable bounds and it should be set aside. The appellant also, however, raises three distinct and discrete points which senior counsel, Mr Maconachie, described as errors, and it is convenient to deal with those matters first. Before coming to the detail of the points let me say that in my opinion they are utterly without substance.

The first point is that expert evidence was given that was not based on proved facts. Accordingly, it was of no value and could not properly be relied upon. Ramsay v Watson (1961) 108 CLR 642 and Paric v John Holland (1985) 62 ALR 85 at 87 were relied upon. There is no doubt that an expert opinion based on a wrong factual basis or absent any foundation is of no probative value and cannot properly be relied upon but, on examination, the fundamental point is found wanting of support.

The expert witness concerned was Dr P M Segelov, an orthopaedic surgeon who treated the respondent. He said that the respondent had ligamentous damage as a result of her accident in the left ankle. According to the submission made by Mr Maconachie the essential reason which led the doctor to that view was that the respondent gave a history that she was going over on her ankle and, the submission continued, the history was not borne out by her evidence. To the extent that the respondent did not say expressly that she went over on her ankle the submission is reasonably accurate but from thereon it loses all support. The doctor's evidence, which was given initially in examination, was subjected to some closer enquiry during cross-examination. In examination in chief the doctor said that the respondent's major problem was the ankle which showed some instability on the outer side. In the doctor's opinion it was more mobile because there was less support from the outer ligaments than there should have been. The doctor advised the respondent that she had torn the ligament structures of the ankle, that operative treatment was indicated if she continued to have problems, and the doctor discussed the nature of the operation with her. In cross-examination he was asked what led him to that view and he initially said,