THOMPSON v CRAIGIE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, COLE JJA and Simos AJA 27 August 1996, 27 August 1996 [1996] NSWCA 530 INADEQUATE reasons for judgment — judgment set aside. Cole JA On 12 December 1995 Judge Karpin published reasons for awarding certain damages to the appellant on an assessment, liability not being in issue. Her Honour assessed the appellant's non-economic loss under s79 Motor Accidents Act 1988 at 12%, awarded the sum calculated in consequence together with a cushion of $2,000 for past economic loss and $8,000 for future economic loss. On appeal the appellant complains that inadequate reasons have been given by the trial Judge. It is contended that a major medical issue raised at the trial was not resolved, and the basis for the assessment of 12% can thus not be adequately reviewed. The obligation upon a trial judge to give adequate reasons is well recognised. ! As [have come to the view that this ground appeal should be upheld and a new trial ordered, it is inappropriate that I make any comment regarding the quantum of damages. At the trial there was a significant medical contest. The appellant's case was that in the motor accident she suffered a significant back injury. Doctor Deveridge called on her behalf attributed a chronic back condition to the motor vehicle accident assessing permanent impairment of her back at 12%. He expressed that view after seeing a CT scan which he thought disclosed disc protrusion. He thought the injury would have a long term impact on her capacity to perform physical work. His view was supported by an orthopaedic surgeon, Mr Graham Mowbray who, after viewing the CT scan found a permanent disability in her spine amounting to 20% loss of the efficient use of her back permanently, and attributed the injury to the motor vehicle accident. In contrast the respondent called Dr Schnier who expressed the view that the CT scan did not disclose disc protrusions. Further, Dr Bornstein, after examining x- rays, found no objective sign of disability and no incapacity to work. Whilst this medical conflict was recited by her Honour, it was left unresolved. In my opinion resolution of that issue is central to a fair determination of the appellant's case. As it has not been resolved the appeal must be upheld and a new trial ordered limited to damages. Both doctors qualified by the defendant were called before the trial judge and thus this Court is not in a position equivalent to that of the trial judge to resolve the medical issue. It was argued by Mr Webb QC on behalf of the appellant that this Court could in essence distil by some process of reasoning the view of her Honour that she must have accepted at its highest the plaintiff's case and then applied some 1. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242. 2 UNREPORTED JUDGMENTS mitigating factor to reduce the 12% that she determined. In my view that is not an appropriate process for this appellate court to undertake. It is not the function of this Court to try to work out the manner in which the trial judge has reached the conclusion where that conclusion is not adequately expressed so that both the parties and this Court can understand the process of reasoning. I would propose that the appeal be upheld; the verdict in favour of the plaintiff dated 12 December 1995 be set aside and that the matter be returned to the District Court for a further trial limited to the question of damages. The respondent to pay the appellant's costs of appeal but it should have a certificate under the Suitors Fund Act if qualified in respect of the appeal. The costs of the first trial should abide the result of the second trial. Sheller JA I agree Simos AJA I also agree. Appeal upheld; the verdict in favour of the plaintiff dated 12 December 1995 be set aside and that the matter be returned to the District Court for a further trial limited to the question of damages. The respondent to pay the appellant's costs of appeal but it should have a certificate under the Suitors Fund Act if qualified in respect of the appeal. The costs of the first trial should abide the result of the second trial. Representation: Counsel for the appellant: RM Sweet Solicitors for the appellant: Kell Heard McEwan Counsel for the respondent: P Webb QC and S Fonti Solicitors for the respondent: Stewart Cuddy and Mockler