Dawson v Selby

[2001] NSWCA 287

CITATION:	Dawson v Selby [2001] NSWCA 287
FILE NUMBER(S):	CA 40962/00
HEARING DATE(S):	29 August 2001
JUDGMENT DATE:	29 August 2001
PARTIES :	Daniel Dawson (Appellant) David Laurence Selby (Respondent)
JUDGMENT OF:	Mason P at 22; Ipp AJA at 23; Studdert J at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3307/99
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ

COUNSEL:	C. Leahy (Appellant) L. Morris QC/M.A. McDonogh (Respondent)
SOLICITORS:	Owen Hodge Lawyers Abbott Tout
CATCHWORDS:	Negligence - motor vehicle accident - claim for damages for personal injuries - negligence proved but no damages awarded - failure of judge to express findings and to state reasons - retrial ordered.
LEGISLATION CITED:	Motor Accidents Act Suitors Fund Act Supreme Court Act
DECISION:	Appeal allowed in part

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40962/00

MASON P

IPP AJA

STUDDERT J

Wednesday 29 August 2001

DANIEL CORY DAWSON v DAVID LAURENCE SELBY

JUDGMENT

1   STUDDERT J: The appellant, Daniel Cory Dawson, sued the respondent, David Laurence Selby, in the District Court, claiming damages for negligence. The claim arose out of an accident in Parraweena Road, Taren Point on 16 December 1997. The appellant succeeded on the issue of liability. The trial judge, her Honour Acting Judge Gamble, found the respondent was negligent in the circumstances of the accident, but that the appellant was guilty of contributory negligence. Her Honour apportioned thirty per cent of the fault for the accident to the appellant. Those findings on liability have not been the subject of challenge in this Court.

2   Notwithstanding the finding that the respondent was negligent, the judge directed the entry of judgment for the respondent because her Honour was not satisfied that the appellant had proved any entitlement for damages. As to this the conclusion which her Honour expressed was in these terms:
“On the evidence as presented I am unable to be satisfied on the balance of probabilities that the disabilities the plaintiff is suffering are attributable to the accident of 16 December 1997. I therefore make no order for damages.”

3   The appellant challenges the findings as to damages in this Court and seeks orders that the verdict and judgment be set aside and that damages be assessed by this Court, or alternatively that there be a new trial limited to damages.

4   The respondent has today filed in Court an amended notice of cross-appeal in which the respondent seeks an order that the verdict and judgment be set aside and that there be an order for a new trial for the assessment of damages. So it is that before this Court neither side seeks to preserve the judgment of the Court below.

5   It is necessary to examine the case presented by the appellant as to damages and the manner in which her Honour considered that case in her judgment in order to determine whether this Court can or should accede to the application made on behalf of the appellant that this Court assess the appropriate damages.

6   The medical evidence in the appellant’s case was presented in documentary form only. It consisted of hospital records, medical reports and psychological reports. The only expert witness called on damages was Ms Watson, a psychologist. The oral evidence relevant to damages was given by the appellant and his mother. The appellant also called his employer at the time of the accident and this witness spoke favourably of the appellant as an employee.

7   The appellant claimed to have suffered various injuries and these are broadly identified in the judgment. The injuries consisted of


(i) injury to the chest,

(ii) brain damage and change of personality,

(iii) injury to the low back.


8   Following his accident on 16 December 1997 the appellant was admitted to St George Hospital where he was diagnosed as suffering from pulmonary contusion and a right pneumothorax. The appellant’s treatment appears to have focussed on the conditions so diagnosed and the appellant was discharged on 20 December 1997, having spent his first twenty-four hours in hospital in the intensive care unit.

9   Whilst in hospital the appellant came under the care of a thoracic surgeon, Dr Horton. Dr Horton’s reports were in evidence. The doctor reported in April 1999 that he had seen the appellant in his rooms after discharge from hospital on 8 January and x-rays taken then showed continuing abnormality in the right lung, indicative of pulmonary infarction following injury and contusion of the lung. The appellant visited Dr Horton on 29 January 1998 and 6 March 1998. On these occasions he presented with further x-rays, which showed improvement in the condition of the lung. Those available on 6 March 1998, according to Dr Horton, demonstrated virtual resolution of abnormalities previously present and the doctor was of the opinion that the appellant could return to work immediately when he saw him on 6 March 2000. In the last report of 27 April 1999, Dr Horton said:
”When I last saw Daniel I felt he would suffer no significant permanent disability from his injuries and that, of course, his prognosis accordingly would be excellent. All in all I feel that Daniel should be fit to return to his normal pre-injury occupation, which, as I understand it, was as a motor mechanic and I do not believe that there would be any physical work that Daniel would be prevented from doing as a result of his accident.”

10   However the appellant gave evidence that chest symptoms persisted and were still troubling him at work in 1999. His mother gave evidence of persisting chest complaint made by the appellant not specifically related in time. The appellant gave histories to doctors who saw him of continuing chest symptoms.

11   In considering the evidence in point the judge said:
“There is no serious dispute about the nature of the injuries Mr Dawson suffered to his chest. The clinical notes from St George Hospital and reports from Dr Horton, a cardiac, thoracic and vascular surgeon, show significant injury but marked improvement sufficient to enable him to return to work by March 1998. In September 1998 he was still complaining of difficulty taking a deep breath but Dr Horton reported that a chest x-ray taken at the time ‘did not show any significant abnormality’ and he thought Mr Dawson ‘would suffer no significant permanent disability from his injuries’ (Ex D, 16-20/12/97; Dr Horton 27/4/99). In examination in chief Mr Dawson said he was still short of breath but that his chest was getting better with exercise. He was not taking any medication for his chest.”

12   Her Honour expressed no assessment of the significance of the chest injury, which the evidence clearly established had been sustained and did no more than refer to the evidence of Dr Horton and to the evidence of the appellant in the passage set out above. However the conclusion expressed by her Honour, to which I referred earlier (at para 11), was intended to include reference to the chest injuries allegedly sustained.

13   Since there was no challenge really to the appellant’s case that he had injured his chest and since the evidence in point in the form of the hospital records and Dr Horton’s reports were all one way, it cannot be that her Honour rejected the appellant’s case that he had injured his chest. The assessment of damages in this case was governed by the provisions of the Motor Accidents Act, and since this accident occurred after 26 September 1995, s 79A of the Motor Accidents Act applied. That section was introduced with the stated object of limiting the amount of damages for non-economic loss in relation to claims concerning relatively minor injuries, and s 79A(3) and (4) are in these terms:
“(3). No damages are to be awarded for the non economic loss of an injured person as a consequence of a motor accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than twelve months by the injury suffered in the accident.
(4) No damages may be awarded for non economic loss unless the severity of the non economic loss of the injured person is at least fifteen percent of a most extreme case.”

14 Her Honour made no finding directed to the provisions of s 79A(3) and (4) in relation to the chest injury. This, her Honour, should have done. There has been no statement of reasons for the findings in relation to the chest injury. Her Honour has not indicated what view she came to as to the period during which symptoms in the chest persisted. There has been no finding expressed for the purposes of s 79A(3), nor for the purpose of s 79A(4). Findings in respect of those subsections would be essential in order to determine whether or not damages ought to have been allowed for the non-economic aspects in this case. The failure to make appropriate findings represented error, and in the absence of findings about those subsections, necessary to be made, it would not be possible for this Court to determine what, if any, damages ought to have been awarded for the non-economic aspects in relation to the chest injury.

15   The position is no easier when one considers the other alleged injuries in this case. This was a case in which there were very live issues as to the injuries allegedly sustained by the appellant. The appellant’s case was that he had suffered a very significant injury to the head resulting in brain damage, which reflected itself in loss of memory and behavioural changes. There was a very live issue as to whether there had been any loss of consciousness. There was a live issue as to whether there was any brain damage and medical evidence was presented, as I have observed, in report form.

16   Her Honour reviewed the evidence to the extent of drawing attention to the competing opinions expressed by the doctors, who had been qualified in the case, but her Honour did not make any findings as to which of the evidence was preferred by her, nor did her Honour make any findings identifying any injuries which she found to have been established, apart from the injury to the chest.

17   The further injury which the appellant claimed to have suffered was an injury to the back. Once again in relation to this part of the appellant’s claim her Honour reviewed the competing medical evidence, but made no findings as to which of the evidence was preferred by her, nor did her Honour state any reasons in a relevant sense.

18   This was a case furthermore in which the appellant had spent a considerable period of time in the witness box and had been subjected to wide ranging cross-examination. An assessment of the credibility of the appellant was vital before her Honour could determine what was compensable in this case. Her Honour has expressed in her judgment no finding in relation to the credibility of the appellant.

19 The absence of an expression of findings and reasons in this case, not only requires that the judgment be set aside, but renders it impossible to this Court to attempt to assess damages. Section 107 of the Supreme Court Act enables the Court to assess damages if it is satisfied that it can do so without seeing or hearing the plaintiff, in this case the appellant, but this is not a case in which it would be possible to assess damages without making an assessment of the credibility of the appellant.

20   In my opinion, this is a case in which the appeal must succeed but, for the reasons I have stated, I do not consider that this Court can make an assessment of damages and the matter must go back to the District Court for a re-trial.

21   I propose therefore the following orders:


1. That whilst the findings on negligence, contributory negligence, and apportionment of fault should not be disturbed, the appeal should otherwise be allowed and the verdict and judgment for the respondent should be set aside.

2. There should be a new trial limited to the assessment of damages only.

3. The respondent should pay the costs of the appeal, but if otherwise qualified should have a certificate under the Suitors Fund Act .

4. Costs of the first trial should be reserved for the consideration of the judge at the second trial. I would add that the costs order at the first trial should be set aside.


22   MASON P: I agree.

23   IPP AJA: I agree.

24   MASON P: The orders of the Court will be as indicated.

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