KOTEVSKI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 14 October 1994, 14 October 1994 [1994] NSWCA 171 DAMAGES — FACTUAL MISUNDERSTANDING UNFAIRNESS — QUANTUM FACTUAL MISUNDERSTANDING BY TRIAL JUDGE — unfairness — quantum of damages affected — new trial ordered. Held: both factual misunderstandings and elements of unfairness were closely connected with the formation of the trial judge's opinion of the appellant's credit, which was critical to the decision on the quantum of the appellant's damages. In these circumstances the judgment must be set aside and a new trial ordered. ORDERS 1. Appeal upheld. 2. Judgment below set aside except as to costs. 3. New trial limited to damages. 4. Respondent to pay the appellant's costs of the appeal. Priestley JA In this appeal the Court is firmly of the view that there shouldbe a new trial. Because of that it is not only possible but probably desirable to keep the comments on the happenings at the earlier trial to a minimum. It seems quite clear from the trial Judge's reasons both simply on reading them and after hearing the submissions of both counsel that in dealing with medical reports from which the Judge extracted material clearly relevant to the opinion he formed about the credit of the appellant, he fell into some confusion as to those reports and in fact appears to have relied significantly on a report in regard to which he was mistaken as to its date and its provenance. Not only that but in regard to a matter of some significance in the trial, namely, whether the appellant had suffered injury in the L4-5 region of his back at the time of the accident from which the proceedings arose, he appears to have overlooked some highly significant evidence. It may not be the fact that it was because of those errors and others we need not now identify that he arrived at the opinion he did of the appellant's credit, but equally it seems to the Court that it is quite possible that he did. Indeed, it seems rather probable that these errors were part of the formation of the opinion so adverse to the appellant. That opinion was stated in rather extravagant terms. Judge Conomos said that it was apparent to him "that this plaintiff has fooled his doctors and that he is attempting to fool me". The Judge may have been right in his assessment of the appellant but for the trial to have been a fair one the appellant should have been given an opportunity to deal directly with such a disadvantageous view. Nothing so severe as what the Judge said in the statement just quoted was ever put to the appellant in the course of his cross-examination. Similarly, the Judge said that the appellant had stated that he was looking for work and would have found work in the foreseeable future at the time of the accident. He went on, "I do not believe him. I am satisfied that he was not looking 2 UNREPORTED JUDGMENTS for work at the time and that he would have remained - at least for some years - on unemployment benefit". Once again it is possible that the Judge was right in his assessment of the appellant but it was never put to the appellant that he intended to remain on unemployment benefit for some years past the date at which he said he was looking for work. Again, it seems to me that it was not fair for the Judge to express himself in such terms in view of the way the appellant had been examined and cross-examined. Both the factual misunderstandings and the elements of unfairness were closely connected with the formation of the trial judge's opinion of the appellant's credit, which was critical to the decision on the quantum of the appellant's damages. In the circumstances the judgment must be set aside. This is an old case and it seems to the Court to be desirable from the point of view not only of the appellant but of the public interest generally that it should be disposed of at the earliest possible time. Unfortunately, this Court cannot embark on assessment of the appellant's damages. Only a tribunal which has the opportunity of seeing and hearing the appellant can make that assessment. The Court is left in the position that the only order it can make is for a new trial. The formal orders that I propose therefore are that the appeal be upheld, the judgment below be set aside except as to costs, that a new trial be ordered limited to damages and that the respondent pay the appellant's costs of the appeal. Meagher JA I agree but resist the opportunity of saying anything further. Handley JA I also agree and also resist the temptation. Priestly JA The respondent seeks an order under the Suitors Fund Act. That order for a certificate is granted subject to the respondent being qualified to apply. The orders of the Court are otherwise as I proposed. Appeal allowed. Judgment below set aside except as to costs. New trial limited to damages. Respondent to pay the appellant's costs of the appeal. RYN Representation: Counsel for the appellant: P Biggins Solicitors for the appellant: D Stanefska and Associates Counsel for the respondent: M Elkaim Solicitors for the respondent: Solicitor for GIO - GM Meadows