New South Wales Court of Appeal CITATION : Ram v Oib [2003] NSWCA 223 HEARING DATE(S) : 23 June 2003 JUDGMENT DATE : 12 August 2003 JUDGMENT OF : Sheller JA at 1; Santow JA at 2; McColl JA at 37 DECISION : (1) Appeal upheld; (2) Verdict and judgment for respondent set aside; (3) The proceedings to be remitted to the District Court for re-trial on the issue of the quantum of damages, noting that out of pocket expenses of $35,036.85 and the Fox v Wood component of $15,337.55 have been previously agreed; (4) The respondent to pay the appellant's costs of the appeal; costs in the court below shall be in the discretion of the judge hearing the re-trial. CATCHWORDS : NEGLIGENCE - Motor vehicle accident - liability of negligent driver for damages for injury to other driver - failure to meet threshold for recovery under legislation - relative contribution of accident to appellant's pre-existing state of health - correct test in case of admitted negligence causing incapacity - out-of-pocket expenses and the Fox v Wood component previously agreed. EVIDENCE - were specialist doctors aware of pre-existing problems - no cross-examination of treating doctor or expert witnesses - new trial ordered. LEGISLATION CITED : Motor Accidents Act 1988 (NSW) s72(2); s79A Bugeja v Hatgiantounio [2002] NSWCA 132 CASES CITED : Fox v Wood (1981) 148 CLR 438 Purkess v Crittenden (1965) 114 CLR 164 PARTIES : Peter RAM (Appellant) Ronny OIB (Respondent) FILE NUMBER(S) : CA 41037/02 COUNSEL : D J RUSSELL, SC (Appellant) J D HISLOP, QC/ K ANDREWS (Respondent) SOLICITORS : Pigott Stinson Ratner Thom (Appellant) Vandervords (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 7052/00 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41037/02 DC 7052/00 SHELLER JA SANTOW JA McCOLL JA 12 AUGUST 2003 Peter RAM v Ronny OIB Judgment 1 SHELLER JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION This is, in many ways, a most unfortunate case. It concerns a negligent driver's liability for damages for injury suffered by the other driver in a motor car accident in July 1998. The trial judge concluded he failed to meet the thresholds for recovery under the legislation. The case turned upon the trial judge's conclusion, adverse to the plaintiff, concerning the relative contribution to his state of health after the accident of his pre-existing condition, compared to the effects of the accident itself. 3 Regrettably, in a case where this was the central issue and one whose resolution was difficult in evidentiary terms, there was no cross-examination of either the treating doctor or at least the principal experts on either side. One may accept that where resolution of such an issue is clear-cut, cross-examination may simply add to delay and cost in over-crowded lists. But where the choice between competing opinions is difficult, failure to test at all the conflicting views of the doctors, by cross-examination albeit within reasonable limits, may actually add to cost, delay and stress for the injured party. This is not only from the appeal itself, but also from any re-trial that is likely to occur if the appeal succeeds. An appeal court cannot ordinarily substitute its own assessment of damages where fresh evidence is required or where controversial questions may turn on credit. 4 The trial judge decided against the plaintiff's claim brought under the Motor Accidents Act 1988 (NSW) ("MAA"). He concludes in these terms: "[A]s the plaintiff has failed to establish that he meets the threshold set out in the Motor Accidents Act there should therefore be a verdict for the defendant"; judgment Red, 24. That threshold is derived from s79A of the MAA, (relevantly the injured party's ability to lead a normal life significantly impaired for at least 12 months). But s79A is applicable only to non-economic loss recovery, not recovery overall. One of the grounds of appeal is that the trial judge overlooked this. That ground relies on how the trial judge expresses himself both above and earlier at Red, 20 ("these proceedings are governed by s79A of the Motor Accident Act") as well as at Red, 22 ("the plaintiff has not proved on the balance of probabilities that, as a result of the defendant's admitted negligence, he has been significantly impaired for a continuous period of at least twelve months"). I shall return to that ground later, in the context of the trial judge's reasoning and findings. Reasoning and principal findings of the trial judge 5 The steps in the trial judge's reasoning and principal findings were as follows: (i) He concluded the plaintiff has been less than frank about his past problems and formed an adverse view of the plaintiff's credibility; judgment Red, 20; (ii) While " the plaintiff sustained injury to his neck, his elbows, causing him pins and needles in his hands from time to time, his back … and problems in his right jaw as well as headaches " and " he also suffered a psychological problem " from the death of his son, " the difficulty for the plaintiff is that prior to this accident he had complained of problems in all those different areas … in some instances going back many, many years "; judgment Red, 16-17. (iii) Except for the plaintiff's general practitioner, Dr Premarajah, " none of his specialist doctors were aware of the plaintiff's pre-existing problems " so that " neither the plaintiff's specialists nor the defendant's specialists are able to comment upon what effect the accident in question has had on his pre-existing conditions "; judgment Red, 17. (iv) The trial judge was " unable to meaningfully resolve whether or not the plaintiff's lumbar problems are related to the accident at all " when the " plaintiff did not complain of lumbar pain until some seven months after the accident "; the trial judge noted that " none of the plaintiff's doctors, except his general practitioner, were aware of the plaintiff's past medical problems "; judgment Red, 18-19. (v) Whilst " it is possible that the disc lesions now seen in the plaintiff's neck are related to the accident of July 1998, no doctor except Dr Premarajah, has been apprised of the pre-injury situation, so as to allow an informed opinion to be given as to the status and effect of the 1998 accident "; judgment Red, 19. (vi) In these circumstances " whilst it is true that despite a multitude of complaints he continued working in a fairly heavy job [as a motor mechanic] , that he did not seek compensation for the 1988 accident [an earlier accident] , that he continued working during the crisis with his young son, and the Home Fund catastrophe, those factors alone could not be regarded as sufficient to validate the plaintiff's current medical evidence in circumstances where the plaintiff's past medical situation had not been referred to or commented upon by any of his current medical practitioners " so that " it may well be that the plaintiff's employment, as much as or more than the July 1998 accident, is responsible for the plaintiff's present inability to work "; judgment Red, 21. (vii) Though " it seems reasonably improbable that the plaintiff's current radiological evidence of disc problems in the cervical spine can be related to the accident ", the trial judge stated that he still did not know " whether or not their changed radiological pictures are productive of any changed symptomatology and, if it is, for how long such changes may have continued ". He then observed, though there was no evidence to justify this, that " unless a disc's protrusion impinges in some way on the nerve root, it will not necessarily be productive of any pain " adding " there are no neurological or radiological signs of nerve root involvement in any of the plaintiff's evidence "; judgment Red, 21. (viii) The underpinning for these findings was the following account of the radiological evidence Thus the trial judge (Red, 18) recounts that " There is also a substantial body of radiological evidence that reveals increasing degenerative changes in the neck, particularly in the C5, C6 area but also at the C3 and C4 and C7 levels. " He then said that "[T] he only difference between the pre-1998 radiological evidence and the post-1998 radiological evidence [i.e. pre and post accident] is that in the latter there are revealed by an MRI investigation, disc protrusions at C5 and C6 in particular and also at C3 and C4. Dr Matheson, the plaintiff's neurosurgeon, also refers to an L4/5 disc lesion ". Dr Premarajah who was the plaintiff's GP since 1989 also makes mention of this. He refers to an x-ray of May 1999 [i.e. post-accident] which is not in evidence, which reveals lumbar spondylosis with a marginal reduction in the L3/4 disc. He then says a " a CT scan of the lumbar spine shows focal left posterior lateral protrusion of the C5 disc " which the trial judge presumes was a typographical error meaning the L5 disc. (It can be inferred that the trial judge was referring here to the disc referred to by Dr Matheson in his report of 29 October 1999 (AB, 121) as an " L4/5 disc lesion ".) (ix) He then found that " [4] apart from the cervical spine " (an important caveat), he was " not satisfied that any of the plaintiff's other medical or psychological complaints can be attributed to the motor vehicle accident, except that the motor vehicle accident may have exacerbated those problems, but to what extent cannot meaningfully be quantified "; judgment Red, 21. He concluded with the observation, which could be relevant only to non-economic loss, that " the plaintiff has not proved on the balance of probabilities that, as a result of the defendant's admitted negligence, he has been significantly impaired for a continuous period of at least twelve months "; judgment Red, 22. (x) In dealing with the plaintiff's claimed economic loss there appears the following critical passage which should be quoted in full: "The plaintiff was off work until 18 October 1998, when he returned on light duties. However, he ceased work on 4 December 1998, being unable to cope any longer. It may well be that he was incapacitated for work from 27 July 1998 until 18 October 1998 because of the accident aggravating pre-existing conditions but, again, the plaintiff's difficulty is being able to meaningfully separate out the effect of such aggravation from his pre-existing condition and determining for how long and to what extent the aggravation continued so as to have been a cause of the plaintiff's being unable to work at all." (xi) Photographic evidence relied upon by the trial judge led him to conclude that the plaintiff did not suffer any significant restriction of movement; judgment Red, 24. (xii) Finally, the trial judge concluded that he was not satisfied " the plaintiff can establish the statutory requirement for damages for domestic assistance set out in s72(2) of the MAA, that is to say the plaintiff was unable to establish a domestic assistance loss of six hours per week, or more, for six months or longer "; judgment Red, 24. He had earlier observed that domestic assistance attributable to driving the plaintiff to the park for a walk because he had a fear of collapsing in the park, fainting or falling, were problems which " the plaintiff in evidence did not complain of ", so leading to the conclusion that the trial judge was not satisfied that they can be related to the accident if in fact they did indeed exist; judgment Red, 24. 6 The foregoing reasoning needs to be considered first in the context of the salient facts and then by reference to the critical medical evidence. SALIENT FACTS 7 The following can be taken to be undisputed: (1) The appellant was born on 13 August 1957 in Fiji. He obtained qualifications in that country as an automotive mechanic. He and his family migrated to Australia in 1988. He worked for one year in 1988 as a mechanic with Hans Motors. In April 1989 he commenced work as a motor mechanic with BM Higginbottom Pty Ltd. He worked in that job until his accident. (2) For ten years prior to the accident the appellant had been working on a strenuous job which involved removing motors from vehicles, and fitting replacement motors. He had to work in a variety of positions, getting underneath cars, and bending into cars (AB, 3T-7E). He had a very good work history, with very little time off. (3) The motor vehicle accident occurred on 27 July 1998. It was a rear-end collision. The appellant was driving. His vehicle was written off. (4) The accident on 27 July 1998 was a severe one. The appellant's seat collapsed and he fell backwards. The bonnet of his car was buckled in, and the back was sandwiched. The dashboard, the console, and the panel underneath the steering were broken, as well as the seat (AB7R-8N). (5) The appellant was taken by Ambulance to Canterbury Hospital, where x-rays were taken of his neck. On the day of the accident he consulted his long-time general practitioner Dr Premarajah. In turn Dr Premarajah sent him to Dr Sundaraj, a pain management specialist, to Professor Norman in relation to pain in the jaw, to Dr Manohar, a specialist in rehabilitation and musculo-skeletal medicine, and to Dr Matheson, a neurosurgeon. Dr Manohar referred the appellant to Dr Lethlean, a neuro-physiologist. Dr Sundaraj referred the appellant to Dr Murugesan, a psychiatrist. (6) Out-of-pocket expenses were agreed at $35,036.85 (Red, 16N) and the Fox v Wood (1981) 148 CLR 438 component was agreed at $15,337.55 (Red, 16O). If the appellant were still working, he would have been earning $499 net per week (Red, 16X). (The respondent's position is that the agreement was only as to the mathematical calculation, but not as to their recoverability in the absence of evidence of a direct relationship between those components and damages proven by the appellant to have been directly related to the accident.) RESOLUTION OF APPEAL 8 The appellant has sought a new trial. The appellant accepts that with issues of credit being important at the trial it would be impossible for this Court to take them into account without having seen the appellant personally. There was thus no submission put that this Court should attempt to determine damages if the appeal were to succeed. It was accepted that it would be unjust for this Court to do so when the issue turns on controversial questions resting on the appellant's credibility; see Bugeja v Hatgiantounio [2002] NSWCA 132 particularly paras 15-20. 9 The essence of the appellant's case on appeal was this. First, the trial judge misdirected himself that his task was to consider whether the threshold set out in s79A of the Motor Accidents Act applied in these circumstances, when s79A only applied to non-economic loss. This was also a case where, on the trial judge's own findings, the appellant was incapacitated for work from 27 July 1998 until 18 October 1998. Having made out at least a prima facie case that incapacity has resulted from the defendant's negligence, it must follow that "the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would in any event, have resulted from a pre-existing condition, rests upon the defendant"; Purkess v Crittenden (1965) 114 CLR 164 at 168 per Barwick CJ, Kitto and Taylor JJ. That onus was not discharged. 10 That onus might have been discharged had the respondent successfully cross-examined the key expert medical witnesses of the appellant or his treating doctor. There was however no such cross-examination, indeed by either side. The appellant's medical witnesses included, first and foremost, the appellant's own doctor Dr Premarajah. He was his long-term treating doctor, well familiar with any pre-existing condition. Then there was Dr Matheson, the neurosurgeon who, so far as matters relevant to his examination as a neurosurgeon were concerned, was sufficiently familiar with so much of his critical condition as was relevant to his back and neck pain and its ramifications. Thus Dr Matheson observed that (AB, 119) "there are minor degenerative changes at C5/6 and C6/7". But then, importantly (AB, 121) "as far as his other disabilities are concerned, the neck lesion was present prior to the accident but his symptoms represent a material aggravation of this underlying disc lesion which will be permanent and not merely temporary" and "as far as the lumbsacral disc lesion is concerned this is probably directly due to the accident as we have no other history to give him" [emphasis added]. Then (at (10)) he concludes (AB 122) "As far as his back pain is concerned, I believe there is a direct link between it and the motor vehicle accident". 11 Dr Premarajah was totally familiar with his pre-existing conditions as his long-time treating physician although he did not set these out comprehensively in his report. He could readily have been cross-examined as to what condition pre-existed and what conditions were attributable to the accident, or aggravated by it. Dr Premarajah's conclusions as he expressed them in his report did follow a detailed statement of the MRI scans that the appellant had undergone. He records the appellant's stated symptoms, the range of analgesics and other medication that he took after the accident and his work cover certificates for being unfit for work after the accident. These are his conclusions (AB, 138): "With restrictions of:- (a) No lifting greater than 5kg (b) No repetitive movements using right shoulder (c) No excessive neck movements Mr Peter Ram's prognosis of his neck and back condition are both extremely poor. The injuries are definitely consistent with the motor vehicle accident on 27.7.98. The report of Dr Matheson, the neurosurgeon in August 1999 indicates that surgery in his neck is essential but Mr Ram's recent demise of one of his sons prevents him from seeking such treatment. Whether there will be total improvement after surgery and the problems of such treatment is probably better obtained from Dr Matheson. Mr Ram is unlikely to be able to continue his work as a mechanic and will definitely have to be trained for another sedentary job. The fact that he has tried on several occasions as outlined to do suitable duties indicated his eagerness to return to his job but is unable to do so. The percentage permanent impairment of the neck is about 35 percent. The percentage permanent loss of Mr Ram right arm above elbow is about 30 percent and below about 35 percent. His percentage permanent loss of the left arm above elbow is about 25 percent and below elbow 20 percent. The extent of his pain and suffering can be quantitated [sic] by the large number and changes of medication that he has had to undergo including injections by Dr Sundaraj, and the mood change and affectation of his family life. In my opinion the pain and suffering is excessive and in spite of presently being on auronix 300mg twice daily, panadeine forte when necessary, Valium 2mg twice daily, Tazac 150mg (for stomach acid problems) twice daily, he still continues to have pain daily which unfortunately cannot be removed completely due to the multiple cervical disc protrusions and cervical radiculopathy. His lower back pain though noted later has definitely been caused partially initially by the accident and aggravated by his cervical lesions and changes in posture." 12 Significantly, the trial judge himself found that "it may well be that he was incapacitated from work from 27 July 1998 until 18 October 1998 because of the accident aggravating pre-existing conditions …"; judgment Red, 22-3. 13 The respondent in argument attempted to escape the implications of that finding, that of some damage resulting from the accident, by treating it as a statement of mere possibility. But the expression "may well" used by the trial judge hardly sits with the idea of mere possibility. The remainder of what the trial judge says does, with respect, bespeak error, namely that "the plaintiff's difficulty is being able to meaningfully separate out the effect of such aggravation from his pre-existing condition and determining for how long and to what extent the aggravation continued so as to have been a cause of the plaintiff's being unable to work at all"; judgment Red, 23 [emphasis added]. If there be difficulty it becomes the defendant's difficulty. The trial judge's error was to fail to recognise that once damage from the accident was established, even at a prima facie level, the evidentiary onus passed to the defendant of "adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would in any event, have resulted from a pre-existing condition …". (Purkess v Crittenden (supra)). 14 The appellant attempted to argue that as Purkess v Crittenden had not been argued before the trial judge, it could not be relied upon now to establish this error, if error it were. But this is a matter of such basal principle that the trial judge should have been aware of the shifting of evidentiary onus following his earlier finding. As Windeyer J said in Purkess v Crittenden, at 170: "but a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. … A tortfeasor gets no allowance because of the frailty of his victim." 15 Nor do other passages in the judgment negate what appears to be a finding, albeit qualified, of incapacity by reason of the accident aggravating pre-existing conditions. Indeed two statements are consistent with that finding, namely: "it seems reasonably probable that the plaintiff's current radiological evidence of disc problems in the cervical spine can be related to the accident …"; judgment Red, 21P. That is, however, confusingly followed by: "But I still do not know whether or not that changed radiological picture is productive of any change symptomatology and, if it is, for how long such changes may have continued. Unless a disc protrusion impinges in some way on the nerve root, it will not necessarily be productive of any pain. There are no neurological or radiological signs of nerve root involvement in any of the plaintiff's evidence." 16 Even that last statement, understood by way of qualification, is factually wrong when the actual evidence is considered. Nor is any medical foundation given for the earlier proposition about impingement on the nerve root. Thus one need look no further than Dr Adler's report. Dr Adler is a specialist in rehabilitation medicine according to his letterhead, and who (AB 147) has this to say under "Diagnosis": "Mr Ram has suffered a very large left cervical C4-5 disc herniation with MRI demonstrating some pressure on the spinal cord and left C5 nerve root. Surgical decompression has been recommended to Mr Ram by Dr Matheson Neurosurgeon. A disc protrusion is causing discogenic neck pain with radiation of pain and paraesthesias into the arms. Examination demonstrates signs of right C6-C7 radiculopathy , this being nerve root injury causing elbow, wrist and hand weakness, as well as hand numbness. This gives rise to a clumsiness of the right hand …". [underlining in the original report] 17 The trial judge makes no mention of this evidence whatsoever. 18 The trial judge then stated immediately after the earlier quoted passage that: "Apart from the cervical spine, I am not satisfied that any of the plaintiff's other medical or psychological complaints can be attributed to the motor vehicle accident, except that the motor vehicle accident may have exacerbated those problems , but to what extent cannot meaningfully be quantified. The plaintiff has not proved on the balance of probabilities that, as a result of the defendant's admitted negligence, he has been significantly impaired for a continuous period of at least twelve months."; judgment Red, 21-2 . [emphasis added] 19 The part of this passage that I have emphasised can evidently be taken to be a reference to symptoms other than those from the cervical spine, namely pain in the jaw, pain in the neck insofar as not derived from the cervical spine but from the neck lesions and exacerbation in the appellant's depressed state. Accepting that all that is required for the evidentiary onus to shift from plaintiff to defendant is for the plaintiff to make out a prima facie case that the relevant incapacity resulted from the defendant's negligence, and not proof on the balance of probabilities, until such time as the respondent displaces that presumption, then that evidence on various aspects of his post-accident condition includes the following. In relation to the appellant's jaw the appellant reported, but only in August 2001, that "he had a sore jaw on the right side …". His symptoms were recounted to Dr MacGee, an oral surgeon who examined the appellant on 21 August 2001. The appellant reported amongst other injuries that following the accident eating was difficult as chewing caused pain at the angle of the jaw on the right side and within the right ear"; AB 156. Then he recounted to Dr MacGee that he was seen by Dr Au, dental surgeon, for the construction of an occlusal splint and then quotes the appellant as stating "… that since wearing the splint which has been constructed, his right sided ear and jaw pain have improved 50% to 60% and he further stated that now, he is able to eat 'reasonably well'. He states however, that he is still having major trouble with his neck"; AB 157. Importantly, at AB, 148 Dr MacGee concludes under "Personal Opinion": "To me, as no direct trauma was sustained to the lower jaw which would have transmitted forces to the delicate jaw joint mechanism resulting in a temporamandibular joint dysfunction presenting it would appear that the cervical trauma sustained, namely, whiplash injury to his neck, has resulted in the jaw joint disturbance presenting post traumatically. Such a state is not uncommon as many patients who sustain whiplash injury do, in fact, develop a jaw joint disturbance to some degree or other." 20 There was no evidence given by either Dr Au, or any other source, of the appellant having difficulty or pain with his jaw prior to the accident. 21 In response, the respondent seeks to rely upon evidence in cross-examination of the appellant at AB 27U-W, 28D-E, 32R-S, 34J-K and 36A-B. A fair reading of that material is that it amounts to a denial that, prior to the motor vehicle accident, he ever had pain in his jaw but that he did have pain in the side of his face prior to the motor vehicle accident. He did not remember various referrals between 1994 and 1996 for x-rays and the like, no records of which are before this Court. They therefore can provide no refutation of the prima facie position established by the medical evidence to which I have earlier made reference concerning jaw pain. That is all the plaintiff is required to establish until such time as, to quote Windeyer J in Purkess v Crittenden at 171: "… the defendant had by evidence elicited in cross-examination or led, provided some material to overcome [the presumption] – either by proving the contrary or throwing the matter into doubt." Clearly, the respondent did neither. 22 Refutation of the appellant's medical complaint about headaches is attempted by referring to medical records constituting four entries between 1993 and 1996 from clinical notes (AB, 209-213) of Dr Premarajah. These on examination are quite inconclusive. They certainly do not of themselves point to a serious recurrent problem of headaches pre-existing the accident. That he might have had occasional headaches when engaged in a heavy occupation is hardly surprising. 23 As against that supposedly conclusive material against the appellant, Dr Premarajah in his report of 11 April 2000 refers to continued complaints of "dizziness, headaches and paraesthesia down the arm" for which the appellant was referred to Dr Keith Lachlan (probably Lethlean) of the Institute of Neurological Sciences; see AB 137. 24 Dr Matheson also refers to "severe neck pain which goes on to headaches and dizziness and pain going down to both medial elbows" AB 119. 25 In relation to the appellant's alleged psychological injuries, the appellant's expert Dr Murugesan, consultant psychiatrist, recounted the tragic death of his two sons which pre-dated the accident as well as "enormous financial problems" from the Home Fund collapse. He recorded that the "death of his second son made him depressed and he was already taking the anti-depressant medication, aurorix since February 1998". He added that "following the accident and the resultant problems enumerated above, he found the aurorix was not helping him as much as it did before" AB 129. 26 Later in the report, Dr Murugesan recorded his increasing of the anti-depressant aurorix from 150mg twice daily to 600mg daily and then to 750mg daily. He then stated as his opinion and prognosis that "he suffers from major depression and chronic pain syndrome as a result of injury suffered from the motor vehicle accident on 27/7/98. As stated earlier he was already suffering from certain level of depression, probably reactive in origin resulting from his son's illness and his subsequent death. After the accident the depression has intensified and has become a major problem for him." AB 131. He also recorded his inability to work following the accident. 27 Clearly, Dr Murugesan was furnished with information concerning the plaintiff's pre-existing problems, contrary to the statement of the trial judge at Red, 17 who observed: "none of his specialist doctors were aware of the plaintiff's existing problems". They were made aware, so far as relevant to their respective areas. Thus the pre-existing problems about which Dr Murugesan was informed were those relevant to his specialist interest, namely in relation to psychiatric aspects. It would be quite unnecessary for Dr Murugesan to be furnished with, for example, the kind of material that might bear upon the appellant's back pain. 28 Even the respondent's own expert Dr Dyball, does not profess to refute Dr Murugesan on every issue. Thus while he considers that the former depressive illness "would have put him in a state that made it just that much more difficult for him to cope with the motor vehicle accident and its sequelae", he acknowledges that "he has continued to suffer from depression though I would have thought it was more in the range of an adjustment disorder than major depression now …"; see AB 225. 29 Merely to match one psychiatrist report against another does not rebut the presumption created by the prima facie case made by the appellant; see Purkess v Crittenden. A fair reading of the cross-examination of the appellant does not prove the contrary of the presumption or throw the matter into sufficient doubt; see AB 41, 48, 52, 56. 30 Finally, to put all these matters in perspective, and without controverting the trial judge's advantage in assessing the appellant's credibility, it is important to note that in examination in chief the appellant was candid about his pre-existing conditions. He states what they were, whilst adding that they were not of major concern. That was an inference clearly open from the appellant's capacity to work pre-accident with little time off and in what the trial judge acknowledged was "a fairly heavy job". I quote from the relevant passage of the transcript (AB 5) "Q. did you ever have any problems with your neck of any kind up to the time you had the motor vehicle accident in 1998? A. Yes, I did have pains now and then, and shoulder pains. I mean apart from neck, back pains and depend, sometimes cold weather or you know been working hard, you know, something like that, but nothing major that I, I, that what is happened now. I could go to work. Q. Did the neck or back pains that you had before the motor vehicle accident, did it ever stop you working? A. No, sir. Q. How long did the neck pains prior to the motor vehicle accident, how long did they last? You said if you found you had a neck pain – how long did it last? A. I wasn't off work. I would get some balm or something prescribed by the doctor or analgesic medication, muscle relaxant and probably go back to work next day or maybe a day off or something like that, but nothing, nothing real big." Summing up 31 Regrettably, I consider there is no other course than to order a new trial. It is clear that the trial judge, with respect, did not direct himself to the right question in giving primacy to s79A of the Motor Accident Act, even if his consideration of domestic assistance might indicate that he also considered that the threshold in s72(2) was potentially relevant. That error would suffice to require a new trial. 32 However, the errors of law included also failing to apply the correct test in the case of admitted negligence causing incapacity, in relation to the passing of the evidentiary onus from the plaintiff to the defendant, as to the effect of a pre-existing condition. That evidentiary onus was not satisfied by the respondent and was wrongly placed on the appellant. It is clear that the findings that the trial judge did make should have resulted in the appellant succeeding at the trial for some damages at least. 33 Moreover, the trial judge was in error in stating that none of the specialist doctors were aware of the plaintiff's pre-existing problems. They were aware of such of the pre-existing problems as were relevant to the specialty of the doctor concerned. Indeed in the case of his treating physician, Dr Premarajah, he was fully aware of his patient's various conditions, having treated him since at least 1998. None were cross-examined. 34 It also follows that out of pocket expenses, mathematically agreed at $35,036.85 and the Fox v Wood component of $15,337.55, being clearly attributable to the respondent's negligence, should be paid forthwith. 35 For the reasons earlier stated, I agree that the proper course is not for this Court to attempt to assess damages where issues of credit are involved, but to order a new trial. ORDERS 36 I would order as follows: (1) Appeal upheld. (2) Verdict and judgment for respondent set aside. (3) The proceedings to be remitted to the District Court for re-trial on the issue of the quantum of damages, noting that out of pocket expenses of $35,036.85 and the Fox v Wood component of $15,337.55 have been previously agreed. (4) The respondent to pay the appellant's costs of the appeal; costs in the court below shall be in the discretion of the judge hearing the re-trial. 37 McCOLL JA: I agree with Santow JA ********** Last Modified: 08/18/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.