KOZUL v GIO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, COLE and ROLFE AJA 27 March 1995, 27 March 1995 [1995] NSWCA 249 DAMAGES — NO QUESTION OF PRINCIPLE Priestley JA Mr Justice Cole will deliver the reasons. Cole JA This is an appeal from a decision of Judge Rummery sitting in the District Court, which was delivered on 29 November 1991. I should refer to the chronology in this matter as it is important for a number of reasons. The appellant was injured in an accident on 30 July 1984. He issued a Statement of Claim seeking damages for injuries suffered in that accident on 26 November 1985. The hearing occurred between 26 February and 12 September 1990 over a period of some six days. Judgment was delivered on 29 November 1991. A notice of appeal was filed on 20 December 1991 and the matter comes on for hearing today. It is thus almost eleven years since the accident. The appellant saw Dr Strinich three days after the accident, that is on 3 August 1984. The learned trial judge found that on that occasion the appellant made no complaint to Dr Strinich regarding his neck, his lumbar spine or his right knee. The trial judge found that the appellant first made complaint regarding those three matters some eight months later when he saw Dr Strinich on 10 August 1985. That finding was clearly wrong, as appears both from Dr Strinich's oral evidence and from his report dated 28 May 1985 which appears at Appeal Book at 217. This is one of those occasions where there are inconsistent facts incontrovertibly established contrary to a finding of fact made by the trial judge [See Devries and Another v Australian National Railways Commission and Another [1]] [1. (1993) 177 CLR 472 at 479] The trial judge's finding of fact in this respect was important in two regards. First, his Honour approached the consideration of the nature and extent of the appellant's injuries in assessing the appellant's credit upon the basis that he had made no complaint regarding them for some eight months after the accident. Secondly, the finding was important in relation to the question of causation and the medical issues associated with that. The question which arose for his Honour was whether the injuries from which the appellant suffered constituted an aggravation of a pre-existing degenerative condition, at least in relation to the knee and the back, or whether they were in truth initially caused by the accident. The finding was important because the trial judge found that the effects of the accident had resolved by July 1988 in all three areas of neck, lumbar spine and right knee. In reaching the conclusion that he did regarding both the causation issue and the ceasing of the effects of the accident within four years, it is not possible for this Court to determine the extent to which erroneous findings of the trial judge played a part. It is clear, however, from his Honour's reasons that it did play some part in each of his Honour's findings in those respects. 2 UNREPORTED JUDGMENTS The trial judge found that the appellant was fit for work at some indeterminate time prior to February 1988. In considering the claim for past economic loss the trial judge allowed a period of fifteen months loss of earnings between August 1986, which was the date upon which the appellant suffered a collapse of his back and consequential hospitalisation, and February 1988. The trial judge thus treated the claim for past loss of earning capacity as if it were a closed period claim not continuing up to the date of the trial which, as I have said, occurred in 1990. The trial judge's finding in relation to what I have called the closed period claim, and the cessation of the effects of the accident by February 1988, depended firstly upon the assessment of the credit of the appellant, particularly in relation to his asserted incapacity to work and, secondly, upon a weighing of the evidence of a great number of doctors whose views in part depended upon histories taken from the appellant which in some cases the trial judge found to be inaccurate. The trial Judge based his assessment of the medical evidence in part upon the basis that the histories were so inaccurate. The basis upon which the trial judge found that the past work incapacity had ceased by February 1988 is not clear. Notwithstanding his Honour's finding that there was a closed period claim for work incapacity, there was a significant body of medical evidence that the appellant suffered some sequelae after the end of that closed period. Implicitly the trial judge must have found that those disabilities then suffered were not causally due to the accident but due to a pre-accident condition. Notwithstanding awarding damages for past loss of earning capacity only for a closed period terminating in February 1988, the trial judge nonetheless awarded the appellant the sum of $6,900 for a future back fusion operation. Allowing that sum in his judgment delivered in 1991 must have involved the finding that the back condition then required that operation and that it was necessary because of the accident. Such a finding is inconsistent with the finding of a lack of income earning capacity terminating in February 1988. The matters to which I have referred make it clear, in my view, that the appeal must be upheld. There are other matters on which senior counsel for the appellant addressed submissions but in light of the acceptance by counsel for the respondent that the appeal must be upheld, it is unnecessary to say anything further in that regard. The question then arises as to whether this Court is in a position to reassess the damages or whether there must be a new trial. It will be obvious from the chronology to which I have previously referred that the prospect of now ordering a new trial in relation to an accident which occurred almost eleven years ago is not an attractive one. Nonetheless, it seems to me to be a necessary consequence of the errors in the judgment to which I have referred. I say that for at least three reasons. First, although the trial judge's basis, at least in part, for finding adversely against the appellant's credit was in error, that does not mean the appellant's credit is re-established. This Court has no means of properly determining the appellant's credit and his credit may be a critical issue in determining the extent and duration of any asserted incapacity to work. Second, where there is, as here, a conflict between an incapacity for work said to exist only within a closed period ending in February 1988 on the one hand, and the allowance of costs of a future operation on the other, this Court is not in a position to determine which of those two alternative positions is the correct assessment of the appellant's condition. Third, if the Court were, because of an error in the trial judge's finding regarding credit, to disturb the trial judge's finding regarding the extent of the closed period claim for economic loss, this URJ KOZUL v GIO (Rolfe J) 3 Court has no adequate means of determining whether the past loss of earning capacity continued to the date of the trial in 1990, or beyond, and whether it still continues and if so, to what extent. It follows, in my view, that the appeal should be upheld, the judgment of the trial judge below set aside; there should be ordered a new trial restricted to the question of damages and the respondent should be ordered to pay the appellant's costs of the appeal. Before leaving this matter I would also make the comment that it is desirable that this matter be afforded as early a rehearing as is possible. The accident happened almost eleven years ago. The writ was issued almost ten years ago. Such delay is, in my view, quite unacceptable. Priestley JA. I agree with Mr Justice Cole. The only addition I would make is that in setting aside the judgment below I do not think the Court should set aside the order for costs, in the plaintiff's favour, of the trial and after we hear from Justice Rolfe we will make orders accordingly. Rolfe J I agree with the reasons of Mr Justice Cole and, subject to the matter raised by Mr Justice Priestley, with the orders his Honour has proposed. Priestley JA: The orders of the Court will therefore be: Appeal upheld, judgment below and orders below set aside except as to costs; new trial ordered limited to damages and the appellant to have the costs of the appeal. Counsel for the Appellant: WF JACKSON QC / LA LEVY Solicitors for the Appellant: BESTON AND CO Counsel for the Respondent: RC TONNER Solicitors for the Respondent: GM MEADOWS GIO