ASHWORTH v GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, HANDLEY and POWELL JJA 22 November 1994, 22 November 1994 [1994] NSWCA 7 PERSONAL INJURY — DAMAGES — APPEAL AND NEW TRIAL — minor motor vehicle collision — alleged whiplash injury — pre-existing injury — conflicting medical evidence — results open on evidence were either substantial or only small verdict for appellant — verdict for defendant — reasons for trial judge's decision affected by error — new trial ordered. DAMAGES — NEW TRIAL The appellant was involved in a very minor motor vehicle collision as a result of which she claimed to have suffered a whiplash injury. The matter was complicated by the fact that she had a pre-existing repetitive strain injury. There was no dispute about the fact that the collision was the fault of the other driver. There was competing medical evidence at the trial. One doctor expressed the opinion that the appellant, as a result of the accident, had suffered a significant and continuing disability. The other doctor expressed the opinion that, as a result of the accident, the appellant had suffered mild soft tissue injury which would have settled down after a few months. On the evidence, therefore, the issue was whether there should be a substantial verdict for the appellant or only a small verdict. In those circumstances the trial judge entered a verdict for the defendant — HELD — the reasoning of the trial judge, who said that he accepted the evidence of the second doctor, was internally inconsistent and effected bv error and there should be a new trial. ORDERS 1. Appeal allowed. 2. Orders made by McDevitt DCJ set aside. 3. Order for a new trial. 4. The respondent to pay the appellant's costs of the appeal and if entitled to a certificate under the Suitors Fund Act to have one. 5. Costs of hearing at first instance to await determination of the judge at the new trial. Gleeson CJ This is an appeal against a decision given by McDevitt DCJ in the District Court at Gosford. The appellant, who was born in July 1957, was involved in what, on any view of the matter, was a very minor motor vehicle collision on 18 August 1986. At 8.30 in the morning, while she was on her way to work, a motor vehicle that was driving behind her, collided, at low speed, with her car. There was no material damage to either vehicle. A bumper bar was somewhat displaced in the collision but this was corrected manually. The police were not called, and the appellant continued on her way to work. It was common ground in the proceedings before McDevitt DCJ that the collision was the result of a negligent driving of the vehicle which bumped the rear of the appellant's vehicle. It seems that the vehicle was uninsured. When the appellant came to sue for damages for what she says were personal injuries arising out of the accident, she sued the respondent Government Insurance Office of New South Wales. 2 UNREPORTED JUDGMENTS We were told that the respondent commenced third party proceedings against the driver of the uninsured vehicle and those proceedings were before McDevitt DCJ. However, his Honour made no formal order in those proceedings and it seems that technically they have never been formally determined. The evidence of the appellant concerning the circumstances of the collision and its consequences may be conveniently summarised as follows. She told Judge McDevitt that her vehicle was stationary at the time the other vehicle bumped into it. She gave the following evidence: "Q And what happened to you when you felt the jolt? A Well my head was hit back on the headrest. Q And did you feel anything at that particular time? A I wasn't conscious of noticing - I was just surprised by the jolt." She said that she and the other driver attended to the problem of the slight displacement of her bumper bar. It did not appear to be cracked or otherwise broken. She saw no damage to the other car. She had a brief conversation with the other driver about whether the police should be called and it was decided the police would not be called. She had no consciousness of suffering any pain at the time. She drove to her workplace at Gosford and there she parked the car. It seems that the appellant told people at her workplace what had happened and on their advice she filled out an injury report. At the time she filled out the report she was not feeling any pain but the report made reference to suffering muscular discomfort in the neck and shoulders. The appellant, in her evidence, told McDevitt DCJ that by lunchtime she started to feel very stiff and sore in the shoulders and neck. By the end of the day she was very tired and sore in the shoulders and neck. She remained at her work for the rest of the week and continued to experience pain. She said she felt a lot of back pain and pain in her shoulders. On the following Monday she consulted a doctor because of the pain and told him what had happened. The doctor was her general practitioner, Dr Low. He referred her to a chiropractor, Dr Nelson. She was off work for about a fortnight because of the pain in her back and shoulders. She had no further time off work after the accident. However, she gave evidence of continuing to see a chiropractor and of the condition of the pain in her back and shoulders varying from time to time. At the time of the hearing she said that her pain in her shoulders had never subsided, that she lost sleep over the pain every night. The pain in her neck had significantly improved. It was not anything like it was at the time of the accident. She said that she received relief by way of chiropractic treatment for the pain in her neck. She was still undergoing such treatment from time to time. The position was somewhat complicated by the fact that in August 1985 the appellant had had about two weeks off from work because of a repetitive strain injury which resulted in neck pain. The appellant's case was conducted before McDevitt DCJ upon the basis that as a result of the accident she had suffered, and was still, at the time of the trial, suffering, from a significant and continuing disability. Her counsel relied principally upon two medical reports by Dr Rockman. Dr Rockman had evidently been given a history which led him to understand that the appellant's neck had been violently jolted in the collision. He expressed the opinion that she was suffering substantial and ongoing disabilities as a result of the collision. I should interpolate that in the course of her cross examination the appellant gave the following evidence: "Q Well it was not much of an impact was it? A It was a jolting impact. URJ ASHWORTH v GOVERNMENT INSURANCE OFFICE OF NSW (Gleeson Cu) 3 Q But it was not, you would not describe it as severe jolting impact would you? A I wouldn't have said it was severe. Q You would not have said it was severe? A No." The respondent, the Government Insurance Office, relied at the trial upon the written report of Dr Leigh. Neither Dr Rockman nor Dr Leigh were called to give evidence. Dr Leigh, in his report, said as follows: "Miss Ashworth gives a history of being involved in a motor vehicle accident on 18/8/86. She was the driver of a vehicle, wearing a seatbelt, when she was hit from behind. There were no other passengers in her vehicle at the time. She states she was thrown about in her seatbelt and her head hit the headrest fitted to the back of her seat." That history, as recounted by Dr Leigh, was not inconsistent with the evidence given by the appellant at the trial. In particular, there is nothing in Dr Leigh's report to indicate that he was given a history of a severe jolting at the time of impact. Dr Leigh concluded his report as follows: "OPINION I am of the opinion that this woman merely sustained a mild soft tissue musculo-ligamentous injury which would have settled within a few months. She is fit for work and, in fact, is currently working in a clerical position at the council. However; she should avoid undue stresses and strains on her cervical and lumbar spine." A reading of the medical reports of Dr Rockman and Dr Leigh indicates that the principal issue that was fought at the trial was whether the appellant was entitled to substantial damages upon the basis that as a result of the accident she suffered significant injury and ongoing disabilities or whether, on the other hand, the appellant was entitled to a relatively modest award of damages on the basis that she sustained, in the accident, a mild soft tissue injury which probably settled down within a few months after the collision. The former view would have been open on the basis of the evidence of Dr Rockman; the latter view would have been open on the basis of the evidence of Dr Leigh. A reading of the whole of the evidence in the case and the medical reports to which reference has been made indicates to me that if McDevitt DCJ had preferred the latter view and had decided to award the appellant a relatively modest sum by way of damages, any appeal against such a decision would have been unlikely to succeed. However, in the circumstances which I have described, his Honour decided that there should be a verdict for the defendant. That has given rise to the present appeal. His Honour's reasoning begins with an account of the motor vehicle collision. It then refers to the notification of the injury which was filled out by the appellant and to the somewhat surprising circumstance that at a time when she said she was feeling no pain, she referred to muscular discomfort in the neck and shoulders. His Honour then referred to the fact that the police had not been called to the accident and he referred to the repetitive strain injury to the appellant's neck that had been suffered in 1985. The remainder of his Honour's reasoning, which was obviously critical to his decision of the case is as follows: "Several medical reports were tendered. Of them, the most persuasive was that of Dr Boyd Leigh. His opinion is that the plaintiff merely sustained a mild soft tissue musculo-ligamentous injury which would have settled down within a few months. This doctor is careful to explain that his report is based on evaluation of objective findings on 13 October 1988 and what the plaintiff had told him. I 4 UNREPORTED JUDGMENTS accept his report and findings and where they conflict with other medical opinions, I accept Dr Leigh. I am not persuaded that the symptoms of which she complains are causally related to the accident. Dr Leigh's report is to the effect that she now has no physical abnormality and x-rays of her cervical spine show no defect. In any event, I am of the opinion that a minor bump such as she describes would not, on the balance of probabilities, have caused any injury. In fact, it would be most improbable to have caused any injury to any occupant but particularly to the plaintiff sitting in the driver's seat and being restrained by a seatbelt. There was no evidence of any bruising or contusions, likely to be present if the plaintiff had been violently jolted or pushed forward or backward in the fashion necessary to cause whiplash injury. THERE WILL BE A VERDICT FOR THE DEFENDANT. " Counsel for the appellant has rightly pointed out that there appears to be an internal inconsistency in that process of reasoning. Dr Leigh was not of the opinion that a minor bump, such as that described by the appellant, would not have caused any injury. Nor was Dr Leigh of the opinion that it was improbable, by reason of the fact that the appellant was restrained by a seatbelt, that any injury would have occurred. One of the passages quoted above from the report of Dr Leigh indicates that he knew perfectly well that she was restrained by a seatbelt. He refers to the fact that she was wearing a seatbelt. Furthermore, nothing in Dr Leigh's report suggests that he had been given to understand that the jolting in question was severe. Nothing in Dr Leigh's report says that he had been given to understand that there was bruising or contusion present as a result of the injury or that only violent jolting would cause whiplash injury of any kind. McDevitt DCJ said that he accepted the report and findings of Dr Leigh. Dr Leigh's findings were that in his opinion the appellant had sustained a mild soft tissue injury that would have settled down within a few months. Counsel for the respondent has argued that his Honour cannot possibly have meant, when he said that he accepted Dr Leigh's findings, that he accepted Dr Leigh's findings. After all, what might be called the bottom line of Dr Leigh's findings is contained in the expression of opinion to which I have just made reference. The only explanation that counsel for the respondent has been able to give for the reasoning of McDevitt DCJ in that respect is that his Honour was intending to say that he accepted certain other parts of Dr Leigh's report but not the critical part under the heading "Opinion". Neither counsel has been able to point to any evidence in the proceedings before McDevitt DCJ that would have justified his Honour in his view that bruising and contusions would have been likely to be present or that violent jolting would necessarily have occurred if the appellant had suffered any whiplash injury to any degree entitling her to claim damages. The fundamental difficulty with his Honour's process of reasoning is that, confronted with an issue on the medical evidence as to whether the appellant was entitled to a substantial award for damages or only a modest award of damages, his Honour resolved the issue by concluding that she was entitled to no damages at all. As I have earlier indicated, on the evidence, if his Honour had come to the conclusion that she was only entitled to a modest award of damages it would have been impossible to quarrel with that conclusion. However, the process of reasoning which led his Honour to the conclusion that the appellant had suffered no injury of any kind or degree resulting from the collision described to him, is reasoning that is internally inconsistent and in my view affected by error. URJ ASHWORTH v GOVERNMENT INSURANCE OFFICE OF NSW (Powell JA) 5 In particular, it appears to involve a misapprehension of the evidence of Dr Leigh, which his Honour said he accepted, and upon which he was prepared to rely. Both counsel before us agreed, with regret, that if the court decides to allow this appeal it is necessary that there be a new trial. The reason for this is that a good deal, relevant to the assessment of damages to which the appellant would be entitled, would necessarily turn upon an assessment of her as a witness. McDevitt DCJ, in his reasons for judgment, did not say that he disbelieved the evidence of the appellant as to her pain and suffering and her on-going disabilities. The matter was complicated by the circumstance that she had had a previous injury that might have been taken to account, at least to some extent, for what she suffered following the accident the subject of this litigation. In my view counsel were right to agree that, if the court allows the appeal, the case is a proper one for a new trial and this Court should not embark upon the task of endeavouring to assess the appellant's damages for itself. I would propose that the court should make the following orders. The appeal should be allowed. The orders made by McDevitt DCJ should be set aside and there should be a new trial. The respondent should pay the appellant's costs of the appeal and if entitled to a certificate under the Suitor's Fund Act, should have one. The question of the costs of the hearing before McDevitt DCJ should await the determination of the judge at the new trial. Handley JA I agree. In my opinion an order for a new trial in this case is inevitable. Powell JA I also agree. Appeal allowed. Orders made by McDevitt DCJ set aside. Order for a new trial. The respondent to pay the appellant's costs of the appeal and if entitled to a certificate under the Suitors Fund Act to have one. 5. Costs of hearing at first instance to await determination of the judge at the new trial. RYN Counsel for the Appellant: RE Quickenden Instructed by: Patrick McHugh and Co Counsel for the Respondent: GR Petty Instructed by: Solicitor for Government Insurance Office of NSW