Navaei v Red Lea Chickens Pty Ltd [2006] NSWCA 193

New South Wales Court of Appeal

CITATION: Navaei v Red Lea Chickens Pty Ltd [2006] NSWCA 193

HEARING DATE(S): 14 August 2006

JUDGMENT DATE: 14 July 2006

JUDGMENT OF: Handley JA at 14; Giles JA at 1

EX TEMPORE JUDGMENT DATE: 07/14/2006

DECISION: Appeal dismissed with costs.

CATCHWORDS: Knee injury - made degenerative changes symptomatic - would have become symptomatic in any event - whether error in accepting medical opinion - whether gave sufficient reasons - no error shown and reasons sufficient - not enough for appellant to point to evidence which could have supported different finding - no question of principle. ND

PARTIES: Sahin Navaei - Appellant Red Lea Chickens Pty Ltd - Respondent

FILE NUMBER(S): CA 40737/05

COUNSEL: C S Leahy SC & A D Campbell - Appellant G M Watson SC - Respondent

SOLICITORS: Andresakis & Associates - Appellant Lander & Rogers - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 827/04

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 19 August 2005

LOWER COURT MEDIUM NEUTRAL CITATION: (Balla DCJ, 19 August 2005, unreported)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40737/05 DC 827/04

HANDLEY JA GILES JA

Friday 14 July 2006 Sahin NAVAEI v RED LEA CHICKENS PTY LTD Judgment 1 GILES JA: This is a plaintiff's appeal from a verdict and judgment in the District Court. The plaintiff challenges a number of the elements of the damages as inadequate. The essential basis of the challenge is that the judge made excessively modest assessments in relation to those elements because she took the view that the plaintiff's injury was not substantial and in her reasons did not adequately deal with the critical issue. 2 That critical issue, which explains the view the judge took of the injury and more particularly its economic and other consequences compensable in damages, was whether the injury to the right knee which the plaintiff undoubtedly suffered, and the injury to the left knee which the judge accepted was consequential, made symptomatic existing degenerative changes to the knees which would have become symptomatic at some stage even without the injury. In the manner the argument developed in this Court, the plaintiff accepted that this was the critical issue and that it turned upon the judge's acceptance of the opinion of Dr Millons. 3 There were two aspects of the submissions in relation to that acceptance. One was that the judge should not have accepted Dr Millons' opinion in the light of other evidence. The other was that the judge had insufficiently disclosed the reasons why she accepted the evidence of Dr Millons. 4 In her reasons the judge set out in some detail the course of events from the injury through consultations with a number of doctors, including referring to the procedure undertaken by Dr Sullivan who performed arthroscopies on both knees and was able to view their condition. The judge relevantly said - "In relation to the condition of the plaintiff's left knee Dr Sullivan has advised that, in his opinion, it is difficult to establish a direct relationship to the injury and added 'I would also note in view of the symmetrical nature of the findings in both knees it is difficult not to conclude that there is an element of constitutional predisposition to degeneration of the knees'. The plaintiff advised that there was a nexus between the incident and the plaintiff's ongoing right knee symptoms caused by aggravated degenerative changes. He accepted that it was possible that the left knee pain had developed because the plaintiff was placing more weight on his left leg to protect his right knee. In view of the degenerative changes, Dr Millons considered that the plaintiff's symptoms would worsen with the passage of time. In his evidence in these proceedings Dr Millons added that being struck by a trolly on the right hand side of his knee would be enough to make the degenerative changes in the right knee symptomatic. However the knee would have become symptomatic at some stage even without the trauma." 5 After referring to the plaintiff's evidence of his condition at the time of the trial, the judge said - "I am not persuaded that the plaintiff sustained a significant injury to his right knee. Despite the MRI scan the arthroscopy established that he did not sustain a rupture of the anterior crucial [sic] ligament. The blow did aggravate the asymptomatic degenerate changes in the knee. I accept that, on balance, his change in gait also caused the degenerative changes in his left knee to become symptomatic. However I accept the opinion of Dr Millons and am also satisfied that the degenerative changes in both knees would eventually have become symptomatic even if the injury had not occurred." 6 We were taken to the evidence of Dr Millons which, despite what was said on the plaintiff's behalf, amply supported the position that there were degenerative changes in the knees which would have become symptomatic even if the injury had not occurred. Dr Millons was perhaps more forthright than this summary indicated. His opinion in his oral evidence was that it was known that there were degenerative changes in both knees because that had been confirmed radiologically and arthroscopically, in the latter case referring to the findings of Dr Sullivan when he performed the procedures, and that because both knees were troubling the plaintiff it suggested that the cause of the pain in the left knee was the underlying constitutional change rather than anything else. Dr Millons went on to give the evidence - "Q. If, as time went on after the incident involving a trolley, Mr Mavaei came to complain of constant knee pain bilaterally, would the moment when that description is applicable tell you anything about the moment when the degeneration overwhelmed any traumatic problem. A. I think it would be at that stage if he was having problems with both knees equally." 7 It was submitted that Dr Millons had not gone this far in his report. Up to a point that is correct, in that in his report Dr Millons recognised the possibility that the condition of the left knee was due to the additional strain placed upon it by the condition of the right knee. This was put to him in cross-examination, and he made quite clear that although he recognised that as a possibility, he did not consider that it was the correct position. 8 There was really little evidence to the contrary of the opinion of Dr Millons, if any at all, and in my opinion it was well open to the judge to accept that opinion. The reason for the opinion was articulated, and it made sense. There was no doubt that Dr Millons was eminently qualified to give the opinion, and in the absence of any significant opinion to the contrary there was really no more required of the judge than what she did, namely to indicate its acceptance. 9 That then involved what was really the core of the plaintiff's submission in this Court, that the judge had not explained beyond the passages which I have cited above why she accepted the opinion of Dr Millons. Necessary to support that submission was some investigation of the contrary opinions to which the judge should have paid regard and referred in expressing her conclusion, and we were taken to a number of other medical reports from doctors who did not give oral evidence. 10 I do not see anything in any of those reports to the contrary of the opinion of Dr Millons, with one possible qualification to which I will come, and indeed they tended to provide some support for that opinion. The judge quoted a passage from the report of Dr Sullivan which I have set out above which tended to support the opinion of Dr Millons, and the report of Dr Nagamori on my reading also tended, if anything, to support the opinion of Dr Millons, because the doctor said it was unclear how the trauma to the right knee could cause a similar defect in the left knee given that the left knee was initially neither painful or swollen, and that "it is possible however that the left knee femoral condyle chondral defect was pre-existing and may have become symptomatic following his injury." 11 The height of the contrary view to which the plaintiff was able to point was the report of Dr Adler, which included under the heading "Causation" that the right knee injury was a result of the trauma in the relevant accident and "there is no pre-existing condition", and that the left knee disability was an indirect result of the right knee injury as a consequence of altered gait placing stress on the left knee and again "there is no pre-existing condition". I do not regard this as significant, or as something to which the judge was required specifically to advert in her reasons. What was meant by there being no pre-existing condition is entirely unclear, nor from the report can it be seen why the doctor was of that opinion, whatever it meant. The likelihood, it seems to me, is that the doctor was saying no more than that there had been no complaints prior to the accident of any disability in the knee, which is quite consistent with there being existing degenerative processes which were not symptomatic. 12 The judge did not expressly find when the existing degenerative condition would have overtaken the effects of the accident. The evidence of Dr Millons could have founded a finding that they would have overtaken those effects at some time well prior to the hearing. The judge did say in relation to assessment of loss of earning capacity that she was satisfied that the defendant "has shown that it is probable that, even if the injury had not occurred, the plaintiff's knees would have become symptomatic in the foreseeable future." This was plainly open to her Honour on the evidence of Dr Millons and, if anything, may have been slightly generous to the plaintiff. 13 I do not think therefore that the plaintiff has made good the challenge to the judge's decision in relation to the critical issue, and, it being accepted that if that challenge is not made good other matters which were dealt with in the written submissions do not in practical terms arise, I propose that the appeal be dismissed with costs. 14 HANDLEY JA: I agree. I would only add some general remarks. In conducting a rehearing of a case, this Court begins with a judge's findings, not the evidence. A trial typically involves conflicting evidence of the facts and conflicting opinions by experts on the significance of those facts. This trial was no different. The function of the trial judge is to resolve those conflicts by making appropriate findings which necessarily involve the acceptance or rejection of various parts of the evidence. 15 In this Court, an appellant who challenges the factual findings and conclusions of the trial judge undertakes the task of establishing error. Error is not established by showing that there was a body of evidence before the trial judge which, if accepted, would have supported different findings. In this case, the appellant sought to displace the judge's findings which involved her acceptance of Dr Millons' evidence. This was never going to be an easy task because Dr Millons had given oral evidence, been cross-examined, and been accepted, and no other doctor had given oral evidence. The existence, even if established, of contrary opinions in report form, could never establish error in the judge's acceptance of Dr Millons' evidence. 16 Relevant error might have been established if the assumptions made by the doctor were shown to be flawed because they were inconsistent with other evidence or facts incontrovertibly established. This task was not undertaken and indeed, on what this Court has heard, could not have been undertaken. Subject to those general remarks, I agree with the reasons and the orders proposed by Giles JA. 17 The order of the Court is appeal dismissed with costs. **********