MILITAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and CRIPPS JJA 25 March 1993, 25 March 1993 [1993] NSWCA 180 DAMAGES — quantum — no question of principle. Meagher JA I will ask Mr Justice Handley to give the first judgment. Handley JA This is an appeal by a plaintiff from an assessment of damages by his Honour Judge McLachlan. The case arose out of a motor vehicle accident which occurred in August 1982 as the plaintiff was being driven by her husband and other relatives from Mascot to her home on the very day she arrived in this country. The proceedings were not commenced until 1986. His Honour awarded the plaintiff the sum of $22,500 by way of damages. Mr McGovern who has appeared for the appellant has submitted that his Honour failed to make primary findings of fact and hat the judgment is such that the matter has to go back for a retrial. I regret that this result inevitably flows from a comparison between his Honour's reasons and the evidence in the proceedings. It is understandable with the pressure of twenty-five actions in the list that in this matter his Honour's reasons on the day he gave judgment should be less than satisfactory but that has been the result and in my view there must be a new trial on the issue of damages. There is no evidence that the plaintiff consulted any medical practitioner for any purpose at all whether in relation to her post accident symptoms or otherwise until she saw Dr Strinich in December 1982. At that stage her only complaint was of chest discomfort and she apparently did not mention to the doctor that she had been injured in a motor vehicle accident. The clinical notes of Dr Strinich are in evidence and indicate regular attendances on him up to and including an attendance on 12 July 1987 when for the first time the doctor's clinical notes refer to the fact that the patient had mentioned her involvement in a motor vehicle accident. That was, of course, just a little under five years after the accident. However, at some stage, about August 1983, a year after the accident, she had consulted Dr Jacovac who referred her for x-rays and proceeded to give her treatment for a range of orthopaedic type complaints related to the injuries that she complained of in the proceedings. It is quite clear that Dr Jacovac was informed of the occurrence of the road accident and was of the view from August 1983 onwards that the accident had caused the plaintiff's symptoms. There was a marked acceleration in the plaintiff's treatment including referrals to specialists such as Dr Bannister in 1986 about the time that these proceedings were commenced. The plaintiff's claim contained an orthopaedic component related to the effect of a whiplash type injury with associated soft tissue damage and an aggravation of a well established pre-existing degenerative condition in her spine. She had, in addition, a claim for psychiatric damage which was supported at the trial by the report of Dr Murugesan. This report contained a list of fourteen complaints and 2 UNREPORTED JUDGMENTS symptoms said to be related to the motor vehicle accident but perhaps significantly included a statement: "No doubt the intensity and variety of her symptoms are out of proportion to the severity of the injuries sustained". On the other hand the defendant relied upon a report from a Dr Lennon who took the view that any orthopaedic or musculo ligamentous problems associated with the accident had long since ceased and the doctor also expressed the view that it would be difficult to state if the associated anxiety depressive reaction had any relationship to the motor vehicle accident. His opinion on this issue is therefore at best equivocal. It is apparent from the cross-examination of the plaintiff that the defendant was challenging the existence in reality of the plaintiff's symptoms. His Honour found that the impact from the motor vehicle accident was a severe one and there has been no challenge to this finding from Mr Petty for the respondent. In these circumstances it is only to be expected that the plaintiff would have suffered some aggravation of the well established degenerative condition in her spine. Nevertheless beyond this point it was very unclear from the written material in the appeal papers just what findings could properly be made. The only witness called to give oral evidence was the plaintiff herself. In my view the case presented to the learned trial Judge a stark challenge or contrast between acceptance of the plaintiff's reliability and honesty as an historian of her complaints and their association with the car accident or the rejection or very substantial discounting of her story leading to a very modest assessment. In that case her loss would be referable to a mere temporary aggravation of the underlying degenerative condition. His Honour had to face up to the necessity of making findings which involved either an acceptance or a rejection of the plaintiff. Unfortunately his Honour failed to make the necessary findings either in favour of the plaintiff or against her. He said that he had considerable doubt as to the claim. He found that any aggravation had ceased a long time ago but he accepted to a degree Dr Murugesan's report that there was some reactive depression and anxiety flowing from the accident. Nevertheless, without any psychiatric evidence from the defendant and in the face of Dr Murugesan's report his Honour found that any reactive depression and anxiety had ceased a long time ago. When it came to out-of-pocket expenses his Honour allowed all the medical and associated expenses for a period of four years after the accident up to and including 1986. It seems, with respect to his Honour, that his Honour has failed to make the necessary findings of fact which if they had been in favour of the plaintiff's case would have led to a substantial verdict and if they had been against the plaintiff's case would have led to an extremely modest verdict. His Honour found a verdict for some $22,000 which is inconsistent either with the acceptance of the plaintiff's case or its substantial rejection. In these circumstances I am regretfully driven to the conclusion that the case has not been properly tried and must be sent back for a new trial on the issue of damages. Meagher JA I agree. Cripps JA I agree. Meagher JA The order of the Court therefore will be the appeal is allowed. The judgment appealed from is set aside. In lieu thereof there will be a new trial on the issue of damages. The respondent is to pay the appellant's costs of the appeal. Costs of the first trial to abide the result of the second trial. Respondent to have a certificate under the Suitors' Fund Act. WRUITAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meagher JAB Appeal allowed. The judgment below is set aside and in lieu thereof there will be a new trial on the issue of damages. The respondent is to pay the appellant's costs of the appeal. Costs of the first trial are to abide the result of the second trial. The respondent is to have a certificate under the Suitors Fund Act. 8 Counsel for the Appellant: DB McGOVERN Instructed by: GAJIC and Co Counsel for the Respondent: GR PETTY Instructed by: GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES