IVARS v SABAG MANAGEMENT PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and COLE JJA 6 March 1995, 6 March 1995 [1995] NSWCA 212 No question of principle. Sheller JA The Court is in a position to deliver judgment in this matter. Mr Justice Cole will deliver the first judgment. Cole JA This is an appeal from a decision of a jury which in December 1993 awarded a verdict in favour of the appellant in the sum of $3,265. That sum was, omitting a few cents, the amount of out-of-pocket expenses which had been incurred by her in consequence of a injury which she said she suffered whilst working for the respondent on 24 October 1985. On that day she lifted a carpet, which apparently was heavy, and suffered some injury to her back. From that date until the date of a subsequent injury suffered in a motor vehicle accident on 28 February 1987, the appellant did not lose any time from work. Nonetheless she was seen by a significant number of doctors including Doctor Kiardi, Doctor Irani and Dr White. She suffered some back injury, the nature of which may be thought to have been shown in a CAT scan which was carried out on 28 January 1987, a month before she suffered a second injury in the motor vehicle accident on 28 February 1987. After the second injury in the motor vehicle accident she commenced proceedings in respect of that injury against others and those proceedings were settled. At about the same time these proceedings were commenced. It seems clear that by awarding the appellant only the amount of her out-of-pocket expenses the verdict of the jury is perverse. The jury was instructed that they should, if they found for the plaintiff, award her a sum which took into account out-of-pocket expenses. It is obvious from both her evidence and the evidence of the doctors to whom I referred that she did suffer some pain in consequence of the injury suffered in October 1985 and prior to the motor vehicle accident in February 1987. Her case was that the motor vehicle accident caused additional trauma to her but that trauma subsided and thereafter she continued to suffer injuries and pain and suffering in consequence of the initial incident in October 1985. To award her the sum for out-of-pocket expenses incurred during a period of time spanning some years must necessarily mean that the jury accepted that during that time it was appropriate for her to expend amounts on medical, physiotherapy and other treatment. It follows necessarily that she was entitled at least to some other damages in respect of the injuries suffered from the events of October 1985. The appeal accordingly must be upheld. The question then arises as to whether the matter should be remitted for further trial or whether this Court can exercise the powers conferred upon it by s107 of the Supreme Court Act. That provision entitles this Court to assess damages in 2 UNREPORTED JUDGMENTS circumstances where it is satisfied that without seeing or hearing a plaintiff or other witnesses or the Court feels itself able to fully assess properly the amount of damages. In my opinion this is not a case in which the Court can or should exercise that power for a number of reasons. Firstly, the finding of the jury awarding the appellant only out-of-pocket expenses may indicate that the jury were not disposed to accept the appellant's account as to the extent of her injuries or pain and suffering that she suffered in this accident. That is principally a jury question and we could not, in my opinion, resolve that issue of acceptance of the extent of the appellant's injuries without seeing her and hearing her evidence. Secondly, there is a conflict in the medical evidence between Dr Collins and Dr Selby-Brown on the one hand and Dr Lorentz on the other. All of those doctors were called and cross-examined, and the medical conflict which arises between them which reflects upon the extent and nature of the injuries suffered by the appellant from the events of October 1985 needs to be resolved. That is not a matter which, in my opinion, can be resolved by this Court without seeing or hearing those medical practitioners. There is a third issue and that is the extent to which the pain and suffering for which the plaintiff appellant seeks compensation in these proceedings was in truth a consequence of the intervening motor vehicle accident. That is a factual issue which needs to be resolved by a tribunal of fact. That is a matter which, in my opinion, could not be satisfactorily dealt with without making an assessment of the plaintiff and her veracity. For those reasons, in my opinion, this Court should not exercise the power under s107 and the matter must be remitted for trial in the District Court. I would propose that the appeal be upheld; that the matter be remitted for a new trial limited to the question of damages, such trial to be conducted before a judge and a jury; and that the respondent should pay the appellant's costs but if qualified should have a certificate pursuant to the Suitors Fund Act. The costs of the first trial before Judge Bell and jury are to be at the discretion of the judge hearing the second trial. Sheller JA: I agree. The orders of the Court will be those proposed by Mr Justice Cole. Representation: Counsel for the appellant: CR Hoeben Solicitors for the appellant: TD Khouri Counsel for the respondent: P Sweeney Solicitors for the respondent: William K Chambers