MANASSEH v DAVID SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 15 August 1995, 18 August 1995, [1995] NSWCA 268 POSSIBLE FUTURE ECONOMIC LOSS Priestley and Cole JJA Judgment in this matter was delivered on 6 April 1995. The matter was restored to the list for further submissions at the request of the appellant it being suggested the Court had omitted to deal in the judgment with ground 3 of the notice of appeal. That was so in circumstances in which the parties and the Court concentrated upon the major issues of economic loss. By consent of the parties, and in accordance with the slip rule, ground 3 has been further argued before us. Ground 3 contended that: "His Honour erred in awarding no damages for the possibility that the appellant will require a revision fusion at spinal levels L4/5 and L5/S1 in the future." There was evidence tendered to the trial judge in the form of a report by Dr Kohan dated 5 January 1994 in respect of an examination conducted on 23 June 1993 that: "As well, a bone scan with single photon emission computerised tomography, may be helpful in assessing or confirming the level of fusion at L4/5 and LS/S 1. It is possible that he may require revision fusion for those 2 levels with instrumentation, and I enclose an assessment of the costs involved in such a procedure."! Those costs were assessed at $10.360.2 Doctor Weisz gave oral evidence and two medical reports of his were tendered. The first dated 25 October 1993 suggested that further surgery may be required, but only for the purpose of removing a metallic plate and screws. By the date of his second report, 3 May 1994, it was noted that procedure had occurred. It concluded: "The fixation achieved its goal namely a radiologically identifiable fusion and clinically detectable stability at the lumbar spine level. He recovered from the operation with slight delay, because of a prolonged wound healing, but eventually settled. He was followed up till 17.12.93. His condition remained satisfactory, and the visualised bony fusion seen during the exploration assured future stability."3 His view was thus that a further revision fusion would be unnecessary. Doctor Weisz was not cross-examined to suggest error in this conclusion, nor was the suggestion put to him that a revision fusion might be required. 1. Appeal Book, at 186H. 2. Appeal book, at 187. 3. Appeal Book, at 206Q-T. 2 UNREPORTED JUDGMENTS The trial judge noted the opposing medical views, including the views of Dr Donaldson who had also expressed the view that the appellant's back had not been stabilised. The trial judge thought Dr Weisz in the best position to give an opinion on the plaintiff and expressed his preference for his reports and evidence to that of the other medical practitioners. In those circumstances it is clear his Honour would have rejected the claim for the additional costs of a possible future operation The trial judge omitted to deal with this claim Having regard to the evidence to which we have referred there is no reason for this Court to disturb the trial judge's preference for Dr Weisz's opinion. In those circumstances ground 3 of the notice of appeal fails. The orders previously made by the Court on 6 April 1995 are not varied. There will be no order as to costs of the additional hearing COUNSEL Appellant: LT GREY Respondent: R SUTHERLAND SOLICITORS: Appellant: CARROLL AND O'DEA Respondent: GM MEADOWS