NURTHERN v GALLO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA, HANDLEY and Cripps JJA 23 March 1993, 23 March 1993 [1993] NSWCA 202 The appeal raised the issue of what component in an award related to non-economic loss, whether the judge erred in making allowance for increased anxiety, quantum and adequacy of reasons. Motor Accidents Act Meagher JA I will ask Cripps JA to deliver the first judgment. Cripps JA This is an appeal from a decision of Judge Barbour QC of the District Court published on 26 June 1992 entering judgment for the respondent/plaintiff for $66,746.40. The only issue in this appeal relates to so much of that award as related to non-economic loss. His Honour awarded $58,300 for that component, being 30 per cent of the maximum for a most extreme case referred to in s79 of the Motor Accidents Act. The plaintiff was injured on 21 September 1989. His injuries are set out in Barbour DCJ's judgment and also in the written submissions handed to us by the parties. He suffered a head injury, an injury to his cervical spine, a fracture of the neck of the left fibula undisplaced and multiple superficial abrasions and bruising to his leg. He was admitted to hospital and shortly afterwards discharged. Later on he was admitted again. He had crutches for a period of time and he had to attend out-patients with respect to the injury to his leg. The amended grounds of appeal are, first, that the learned judge erred in making an allowance for increased anxiety, it being submitted that the plaintiff, having an advanced anxiety state before the accident, had not called any evidence which would have entitled the judge to conclude that that state had been exacerbated by the injury that he suffered. The judge found that the injury the plaintiff suffered was moderately severe. He also presumably accepted the plaintiff who said that his anxiety had doubled as a result of the accident. I was originally somewhat attracted to the submission by Mr Maconachie QC in this regard because the plaintiff had asserted that the car accident had also exacerbated his heart condition and therefore exacerbated his anxiety whereas the judge was not satisfied that the condition of the heart at the time he heard the matter was the result of the car accident. I should also mention that the judge rejected a number of claims made by the plaintiff, including the hearing, that he said were the result of the accident. The second ground of appeal was that 30 per cent was too high. The third was that the judge failed to give reasons. The fourth was that he failed to give weight to the respondent's pre-accident medical condition which I think is more or less a re-run of the first and, possibly, the second grounds. Before dealing with the reasons that the judge gave, it is not unimportant to note that although the case went on for four days or more, no doctors were called and the judge was required to make his assessment of the disputed medical 2 UNREPORTED JUDGMENTS evidence without seeing or hearing from the doctors. This depended upon his assessment of the plaintiff because the medical reports were based, largely, on the history given by the plaintiff. At 16 of the judgment, the judge found that - and this is the subject of complaint: "While it may be said that there will be some improvement when the strain of the litigation is removed, nevertheless I consider that there has been a genuine anxiety situation which constitutes a lifting of the level of his pre-existing anxiety." For my part, I do not understand how it can be said that the judge was not entitled to come to that conclusion. The plaintiff told him his anxiety had doubled and there was medical evidence from a Dr Garrick to the effect that the plaintiff's complaints were consistent with the cause of the exacerbation, being the accident. The circumstance that Dr Garrick was not a psychiatrist, but a neurophysician, does not, I think, Personally, I would have thought that one could have made the finding the judge did without any medical evidence beyond knowing that this man had an anxiety state before the accident and that the car accident was sufficiently serious to cause him to become more anxious than he was before. lam of the opinion, therefore, that the first ground of appeal fails. Before I turn to the next three grounds of appeal, I should mention that it must be very difficult for a judge faced with the task Barbour J was faced with to determine complicated medical issues bearing in mind that he has not had the advantage of seeing or hearing any of the doctors. As to the second ground of appeal, what this comes down to is whether or not the 30 per cent was beyond the range. It would seem to me on the findings that have been made by the judge that the finding was at the top of the range but I do not think it has been established that it was beyond the top of the range. It has been suggested in argument that perhaps the figure should have been 20 per cent rather than 30 per cent. The judge had to make an assessment. It is essentially, I think, a discretionary assessment and I am not satisfied it has been shown that he made the wrong assessment. The third ground of appeal is that his Honour failed to give reasons for the conclusions he came to. This relates to the first ground of appeal. We were taken to a number of medical reports which were tendered which the defendant hoped would establish that whatever the plaintiff's anxiety state at trial, the accident had nothing to do with it or, perhaps, the plaintiff had not proved the accident had anything to do with it. The function of giving reasons is to allow the reader of the judgment, being a person presumably that had knowledge of the material before the judge, to understand why the judge came to the conclusion he did. In this case, and with respect to Mr Maconachie QC's argument, it is clear he came to the conclusion he did because he believed the plaintiff and he accepted the evidence of Dr Garrick concerning the consistency of the plaintiff's complaint and obviously he must have rejected the defendant's medical experts. The circumstance that he did not say that does not gainsay the proposition that it is easy to determine why he concluded as he did that the plaintiff was entitled to succeed. Finally, it is said that the judge failed to give any adequate weight to the pre-existing medical condition. I think I have dealt with this in the first ground of appeal. URJ NURTHERN v GALLO (Handley JA) 3 I am of the opinion that the appeal should be dismissed and the appellant should pay the respondent's costs. Meagher JA: I entirely agree with the reasons and orders so eloquently suggested. Handley JA I also agree. I agree in particular that the award of 30 per cent of a most extreme case for this plaintiff as a result of the 1989 accident is at the upper end of the range. However, under s79(2) of the Motor Accidents Act there is not only one correct figure for the damages for non-economic loss. In the circumstances, despite the plaintiffs substantial level of pre-existing incapacity, I have not been persuaded that this award was beyond the range of his Honour's discretionary judgment. I agree with the orders proposed. Meagher JA: The orders are the orders proposed by Cripps JA. 1. Appeal dismissed. 2. Respondent to pay costs. Counsel for the Appellant: J Maconachie QC/W Reynolds Instructed by: Caruana Kay and Barry Counsel for the Respondent: C Sandrasagara Instructed by: Morgan Ardino and Co