McIlwraith v The State of New South Wales [2001] NSWCA 250

New South Wales Court of Appeal

CITATION : McIlwraith v The State of New South Wales [2001] NSWCA 250 FILE NUMBER(S) : CA 40528/00 HEARING DATE(S) : 27 July 2001 JUDGMENT DATE : 27 July 2001

PAUL McILWRAITH PARTIES : v THE STATE OF NEW SOUTH WALES JUDGMENT OF : Handley JA at 1; Heydon JA at 23

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 12089/89 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

COUNSEL : J D Hislop QC/E G Romaniuk (Appellant) A D M Hewitt SC/B G Smith (Respondent) SOLICITORS : Geoffrey Edwards & Co (Appellant) Moray & Agnew (Respondent) CATCHWORDS : NEGLIGENCE - damages - no question of principle CASES CITED: Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40528/00 CLD 12089/89 HANDLEY JA HEYDON JA

27 July 2001

PAUL McILWRAITH v THE STATE OF NEW SOUTH WALES

JUDGMENT

1 HANDLEY JA: This is an appeal from the decision of Master Malpass given on 15 June 2000 in which he assessed the plaintiff 's damages arising from an industrial accident on 7 November 1986 while he was working for the Department of Youth and Community Services. 2 The Master assessed the plaintiff 's damages at $583,250.50 and, after deduction of the workers' compensation payments, he entered judgment for $400,000. The plaintiff has appealed and the only relief sought is an order for a new trial. That is important because some of the submissions by Mr Hislop QC for the appellant might have supported some adjustments to the verdict and judgment. I will not express any view on the merits of those submissions if reassessment by this Court had been sought. The submissions in terms were advanced only in support of the application for a new trial. 3 The Court has had the benefit of extensive written submissions from the appellant over 22 pages and from the respondent over 37 pages. The first of the submissions on behalf of the appellant was that the learned Master failed to give adequate reasons for his findings on damages. He expressed reservations about the plaintiff 's credibility and reliability and clearly these affected his assessment. The submission, made in writing and orally by Mr Hislop, was that the Master's findings on the plaintiff 's credibility in para 55 of his reasons failed to meet the required legal standards established by Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247. 4 In para 55 of his reasons the Master said: "There has been a strong attack on the plaintiff 's credibility. He is an intelligent man (this is common ground). The defendant says that he is not articulate. He took great care with the evidence given by him. Often, answers were of considerable length. He was at pains to ensure that the answers were phrased in terms with which he was happy. At times, he seemed to be engaged in semantic exercises. He gave the impression of a plaintiff who felt that he had the advocacy skills to sell his case and explain away any perceived problems. There are unusual features about the case and the evidence given by him. His evidence throws up inconsistencies and confusion. Some of it was not plausible. There are inconsistencies between his evidence and the history given to doctors. There is conflicting history. His complaints and assessment of problems is not consistent with the opinions expressed by the doctors (including his own medical advisers). Generally speaking, where there is inconsistency, I prefer what has been said by the medical experts. It has been said that some of his evidence has been less than frank. In my view, there is substance in that contention. I do not accept part of his evidence". 5 In this part of his reasons the Master does not give chapter and verse for the particular parts of the plaintiff 's evidence which in his view showed that he engaged in semantic exercises. He does not set out in detail what are the unusual features of the case, he does not refer to specific passages in the evidence of the plaintiff which threw up inconsistencies and confusions or which were not plausible, nor does he refer to particular parts of the written medical evidence and the plaintiff 's oral evidence which gave rise to inconsistencies, nor does he refer to the particular medical reports which contain conflicting history. He does not refer to the inconsistencies between the plaintiff 's assessment of his difficulties and the views expressed by his own medical advisers. 6 Mr Hislop submitted that a number of the matters referred to in this paragraph, for example the plaintiff 's intelligence, that he was not inarticulate, that he took care with his evidence and gave long answers, were not matters which on any reasonable view could affect the plaintiff 's credibility. I respectfully agree with that submission but I do not understand from the Master's reasons that he was treating those matters as damaging to the plaintiff 's credit. He was merely giving a short description of the plaintiff 's personality as it manifested itself in the witness box. 7 While the Master did not give chapter and verse in para 55 for his criticisms of the plaintiff 's evidence, examples which support those criticisms are to be found elsewhere in his reasons. For example his statement that the plaintiff seemed to be engaged in semantic exercises is developed in para 61 of his reasons where he refers to the plaintiff 's evidence while being cross-examined about the report of Dr Evans. The Master said there: "Later he engaged in the semantic exercise in relation to the word 'from'". He referred in para 55 to unusual features about the case. This might fairly be said to refer back to his findings in para 23 about the plaintiff 's attempt to work for a Mr Korsche in October 1999. The Master said that this evidence had some curious features. That last comment may have been directed to the evidence of Mr Korsche, but even so that was an unusual feature about the case. 8 When the Master said that some of the plaintiff 's evidence was not plausible, this might foreshadow his findings in para 76. He said there that the explanations advanced by the plaintiff for not seeking employment during the long period between 1986 when the accident occurred and 2000 when the trial took place were "largely lacking in plausibility". 9 There is conflicting history in the medical reports including those by the plaintiff 's own experts in relation to the condition of his lower back and I will again refer to this matter. One example of the inconsistency between the medical reports and the plaintiff 's own evidence had been referred to by the Master in para 29 of his judgment where he said that: "At least by 1990 his assessment of his capacity for employment was not consistent with the medical advice he was receiving inter alia from his own experts". The view of the doctors was that he was fit for light work including work of an administrative or clerical nature. They said that he could do a clerk's job without any difficulty. 10 Read fairly in its context in the reasons of the Master as a whole I am satisfied that para 55 of his reasons contained adequate reasons for his decision. The Master said that he did not accept some of the plaintiff 's evidence. The extent to which he did not and the reasons why he did not sufficiently appeared elsewhere in his reasons as step by step he made further findings and assessed particular components of the plaintiff 's damages. I reject this ground for ordering a new trial. 11 The next matter on which Mr Hislop and the written submissions placed emphasis was the question of the plaintiff 's back injury. The Master dealt with this at some length in paras 58 to 70 of his reasons. He concluded by saying that he was not satisfied that the accident was responsible for any significant low back problem. 12 There could be little doubt on the basis of the medical evidence, including evidence of radiographic findings, that the plaintiff had a significant lower back problem by the time of the trial. However the Master said that in para 62 that an examination of the medical reports revealed that "there is no history of low backache in any of the reports prior to July 1998. A back problem is first recorded in a report from Dr Claxton following the fall he had in 1998." The appellant sought to demonstrate error in this finding by referring to two reports dated prior to July 1998 and I will deal with these in a moment. 13 A further submission was made that the Master was in error because reports which post-dated July 1998 contained histories given by the plaintiff of significant back problems at earlier points of time. However, as I read the Master's reasons, he was referring to reports dated prior to July 1998 and not to history recorded in subsequent reports which referred to his condition before that time. 14 The first of the two reports dated prior to July 1998 which are relied upon as establishing error is the report of Dr Claxton dated 29 February 1996. This stated: "He has not worked since the accident in 1987 and continues to complain of pain in the left knee, limitation of movement of the left knee, turning of the left foot, difficulty in walking causing pain in his back and neck and shoulders requiring massage and frequent leg cramps". 15 There is nothing in this report which refers to any problems in the low back, nor does it give any history of "low backache". It should also be mentioned that in 1993 the plaintiff suffered a fall which was not shown to be causally related to his knee injury. This occurred on 28 August when his knee suddenly gave way, and he fell downstairs on his back and left shoulder. The Master found that he had largely recovered from these injuries, but for a time the plaintiff did have problems in his shoulder, upper back and neck, and he received some treatment for this from physiotherapists and chiropractors. 16 The statement in the report of Dr Claxton should be understood as referring to the plaintiff 's problem in his upper back, shoulder and neck and not to his lower back problem which emerged subsequently. 17 The other report relied upon as invalidating the Master's finding was that of Dr Millons of 26 October 1994. This refers to the plaintiff having some intermittent chiropractic treatment for his back but again I would read this as referring to the plaintiff 's problems with his neck and upper back and not the low back problem which emerged later. That report does not contain a "history of low backache". The same report also stated: "His thoraco-lumbar spine exhibits a full range of painless movements, he complaining of some tightness on laterally flexing to left and right". This was a finding which the doctor made on examination of the plaintiff and did not relate to the plaintiff 's own history of difficulties he was experiencing in ordinary life. 18 The plaintiff had a second fall in 1998 and the history given to doctors following this fall is in marked contrast to that given in earlier reports. Dr Caldwell, in his report of 2 July 1998, said that when the plaintiff was getting out of a car some two or three weeks before his legs gave way "and he developed acute lumbar pain radiating through into the groin and he required a week of complete bed rest...however he still feels very vulnerable in the lower back. His main complaint is right lumbosacral pain with occasional posterior thigh discomfort and at one stage he had mild paraesthesia in his right leg for a few days but that has since resolved." 19 In my judgment the challenge to the Master's finding in para 62 has not been established. The intervening accidents in 1993 and 1998, and the absence of any history of low back pain prior to the second in 1998, amply support the Master's finding. 20 The next group of submissions concerned the Master's allowance for Griffiths v Kerkemeyer compensation and for assistance in the way of lawn mowing and handiwork around the house. He allowed $35,000 for past care and a global sum of $15,000 for future care. The Master found that the plaintiff could perform many of the services in respect of which this claim was advanced. He also found that his capacity could be expected to improve after his knee replacement. He also said that his assessment on this head of damages also took into account concessions which emerged during the plaintiff 's evidence. Again I have not been persuaded that any appealable error has been established of a kind which would entitle the plaintiff to a new trial. 21 The final matter relates to the Master's awards for past and future economic loss. The Master awarded $120,000 for the past and a global sum of $70,000 for the future. The plaintiff had not worked apart from 3 days in the 14 years between the accident and the trial. The Master was not satisfied with his explanations for not seeking employment during this long period and found that the defendant had discharged the onus of showing that the plaintiff had failed to mitigate his loss. The Master also found that the plaintiff had a significant degree of residual earning capacity for clerical work or administrative work. This was based on solid medical evidence given by doctors who were qualified for both of the parties. 22 In those circumstances it seems to me that the Master was entitled to make the awards that he did and I have not been persuaded that any appealable error has been established which would entitle the plaintiff to a new trial. For those reasons this appeal fails and should be dismissed with costs. 23 HEYDON JA: I agree. -oOo- 24 HANDLEY JA: This appeal was heard this morning commencing at 10.15. At 12.45 the Court proceeded to give an ex tempore judgment which concluded at approximately 1.15. Oral orders were then pronounced dismissing the appeal with costs. Mr Hislop applied immediately for the Court to consider re-opening the appeal to hear further argument. The Court has power to entertain Mr Hislop's application because the orders have not been passed and entered. 25 The application arises out of remarks made by me in the course of giving ex tempore reasons to the effect that some of the matters referred to in Mr Hislop's oral submissions might have warranted a re-assessment by this Court of the plaintiff 's damages but they were not relevant to the application for a new trial which was the relief sought by the notice of appeal. 26 The matter was then adjourned until after the case of NSW Bar Association v Cummins in which I was part heard. When the matter was re-listed later in the day the Court heard submissions from Mr Hislop and then Mr Hewitt. Since oral argument was concluded, the nature of Mr Hislop's application has been further clarified. 27 The appellant seeks a new trial or a re-hearing before a trial court either of his whole claim for damages, or any parts of such claim which merit the further re-hearing, or in the alternative he seeks to have this Court reassess his damages, or at least some aspects of them. The Court has heard and dismissed the application for a re-trial of the damages claim in whole or in part. 28 There remains Mr Hislop's application that this Court should undertake a reassessment of some aspects of the plaintiff 's damages in the light of the evidence and the Master's findings. Mr Hislop drew attention to SCR Pt 51 r 22 which entitles this Court to exercise its powers even though there has been no appeal from some part of the decision or that some ground for allowing the appeal or varying the decision has not been taken in the notice of appeal. There is no doubt that the Court has the power to which Mr Hislop refers. 29 The difficulty in this case is that the amended notice of appeal dated 20 October 2000 following the Master's decision on 15 June is confined to claims that the assessment of the Master be set aside and that there be a new trial of the damages issue. The appellant has been represented by experienced solicitors and counsel and it is clear that a decision was made to seek a new trial, without seeking in the alternative or at all to have this Court re-assess the damages. The decision to frame the notice of appeal in this way must have been deliberate and there was ample time to obtain considered advice. 30 The written submissions for the appellant signed by experienced senior counsel sought a new trial and no other relief. Para 6 of the written submissions filed on 20 December state: "The effect of that adverse finding on credit [by the Master] is such that it is not appropriate for this Court, if the plaintiff succeeds in this appeal, to reassess damages." At p 21, the second last page of the written submissions, para 23 sets out the relief sought which is that there be a new trial as to the assessment of damages and that the matter be remitted to the Common Law Division. If reassessment had been sought the notice of appeal should have claimed that relief and it would also have been necessary for the appellant to have filed with the notice of appeal a statement setting out the basis on which re-assessment was sought and the written submissions should have addressed those issues. 31 The respondent's written submissions dealt with the claim for a new trial but naturally did not deal with any question of re-assessment or the evidence that would be relevant to any question of re-assessment. The respondent's submissions were filed on 4 May. 32 Mr Hislop did not appear for the plaintiff below and did not sign or prepare the written submissions, but when the appeal was called on this morning no application was made at that stage for leave to amend the notice of appeal to raise a claim for re-assessment by this Court. The appeal proceeded, but in the course of Mr Hislop's submissions where he was dealing at one stage with the award by the Master of the sum of $5,700 for past lawn mowing, he drew attention to the fact that the Master had not made any allowance for the future cost of lawn mowing, although of course the Master did allow $15,000 for future care on a global basis. It is not clear to me that that award was intended to cover the future cost of lawn mowing. The Master said that there was no evidence to support a claim for the cost of lawn mowing, but that since the defendant had not opposed the award for past lawn mowing, it would be allowed. 33 At this point in the oral argument I intervened and to the best of my recollection said words to the effect that there might be a point there if what the appellant was seeking was a re-assessment, but any such point would not help the appellant get an order for a new trial, and there as I recall the matter was left. That remained the position until the Court's ex tempore reasons for judgment had been delivered. 34 The appellant would first need leave to amend his notice of appeal. It would then be necessary for the Court to adjourn the case so that written submissions directed to the new issues could be prepared on behalf of the appellant and respondent and then a further day would have to be set aside for the hearing of the case. 35 In my judgment no discretionary reasons have been advanced which would warrant this Court taking such steps after ex tempore reasons for judgment have been given. My reference to the possibility of a claim for future cost of lawn mowing and other possible claims was not intended to convey any opinion that these claims had prima facie merit. It was merely intended to indicate that they could not support the relief that was sought, namely an order for a general new trial of the plaintiff 's claims for damages. I would therefore refuse Mr Hislop's application and confirm the orders orally pronounced earlier today. 36 HEYDON JA: I agree. ******