Patricia Watkins v Frantisec Zeman No. 4213 Judgment No. SCGRG 93/960 Number of Pages 5 Practice

[1993] SASC 4213

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Practice - failure by plaintiff in personal injury case to make pre-trial disclosure of another accidental injury - refusal of application by defendant for adjournment of trial to investigate - no error in judge's exercise of discretion to refuse adjournment.

HRNG ADELAIDE, 5 October 1993 #DATE 5:10:1993
Counsel for appellant:     Mr M G Steele
Solicitors for appellant:    Ward and Partners
Counsel for respondent:     Mr S Walsh QC
Solicitors for respondent: Reilly Basher Downs
   and Humphries

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a judgment in the District Court, whereby the respondent was awarded damages for injury sustained in a road accident which occurred on 29 April 1991. 2. The injury which he sustained in that accident was an exacerbation of a pre-existing degenerative spine condition. That condition was asymptomatic prior to accident, but was rendered symptomatic by the accident. 3. Liability was agreed between the parties. The matter came before the District Court judge for assessment of damages. He assessed for damages and, in accordance with the agreement of the parties, awarded 85 per cent of those damages to the respondent. 4. The point which was argued on this appeal was whether the learned trial judge should have acceded to an application, on behalf of the defendant at trial, the appellant in this court, to adjourn the trial to enable the appellant to make further investigations. 5. In the course of his evidence, the respondent told the court that, following the accident, he had been able to do some work of a light nature, painting work, but that he had been unable to perform the heavier bricklaying and plastering work which was he accustomed to doing as a subcontractor. 6. The plaintiff said, however, that, at the time of the trial he was not doing any work. He said that he had stopped working approximately nine months previously. 7. When asked why he had stopped working the plaintiff replied, "Because I had accident on a motorbike." When asked what happened on that occasion he replied, "I hurt my knee." He was asked, "How long was your knee a problem for?" He answered, "Six months." 8. The plaintiff further said that he had not gone to work after the knee got better because he was unable to obtain light work. Subsequently in cross-examination, he said that the knee would have prevented him from working for a period of six months. 9. Those answers were the first notice which the appellant had of the motorcycle accident and the knee injury caused to the respondent. 10. In the sworn particulars which had been filed pursuant to rule 46.15 of the District Court rules, the respondent had answered to questions as to whether he had sustained any other injury, "not applicable". He had made no mention of the motorcycle accident or the knee injury either to his own treating doctors or to the doctor who examined him on behalf of the appellant. 11. The appellant was undoubtedly, therefore, taken by surprise by the answers which were given. 12. The respondent's evidence was that the motorcycle accident had caused an injury to his knee and his shoulder from which he was now fully recovered. He stated that it had no effect upon his back, or upon his back injury. 13. All the medical witnesses, namely, Dr Cameron, who was the respondent's general practitioner, Mr Girgis, who was the treating surgeon, and Dr McKenna, who examined the respondent on behalf of the appellant, had given evidence on the first day of the trial. 14. At the adjournment at the end of the first day the respondent had not completed his cross-examination. On the resumption on the morning of the second day of the trial, counsel for the defendant applied for an adjournment for the purpose of investigating the motorcycle accident. 15. His Honour rejected that application and ruled as follows:
    "I am not going to have any difficulty in accepting every
    aspect of this plaintiff, every aspect. I am going to have no
    difficulty in accepting everything Dr Cameron says, supported by
    Mr Girgis and I am going to have no difficulty in rejecting Dr
    McKenna. I am not prepared to grant the application." 16. The cross-examination of the plaintiff continued. At its conclusion, counsel for the defendant said, "I can't go any further with this witness now and I would renew my application for an adjournment." His Honour replied, "Refused". 17. Mr Steele, who appeared for the appellant before us, has argued that his client was denied justice by the refusal of that application for an adjournment. He contended that an investigation of the circumstances of the second accident may have been a means of testing the reliability of the evidence given by the respondent. 18. Mr Steele argued, moreover, that there was a need for investigating the effect that the motorcycle accident might have had upon the respondent's back condition and that there was also a need to investigate any effect that the knee injury might have on the respondent's future earning capacity. 19. There can be no doubt that the matters which Mr Steele mentioned were grounds which required the consideration of the learned trial judge when deciding whether the application for adjournment should be granted. He had to consider how far, if at all, those matters might affect the outcome of the trial and had to consider that in relation to the cost and inconvenience which would undoubtedly result from the adjournment of the trial. 20. The learned trial judge's view was clear and was based upon his assessment of the evidence which he had heard. He was impressed by the evidence of the plaintiff. He had no doubt about its credibility. His Honour commented, in the course of his reasons for judgment, on this aspect of the case as follows:
    "One area which initially gave some concern was that it now
    appears in May 1992 that the plaintiff was riding a motorcycle
    at a very low speed when there was some rear tyre trouble and
    consequently he lost the steering and fell from the bike. He
    said he was not going very fast and there was no damage suffered
    to his motorbike, but he hurt his left knee and shoulder. He
    sought advice from another doctor, Dr Pryzbylko. He is a Polish
    doctor and the plaintiff explained that he attended Dr Pryzbylko
    as they were able to communicate, but at all times he has looked
    upon Dr Cameron as his 'back doctor'. He said he had some
    months off work because of that fall, but he had totally
    recovered and there had been no problem with either his knee or
    shoulder because of this accident. I accept that evidence. I
    do not believe he was misleading me. His evidence was given in
    a frank and genuine manner. I accept Dr Cameron's view that
    this accident had no effect on his back problem. That is my
    finding." 21. Mr Steele has challenged the finding that Dr Cameron gave evidence that the accident had no effect upon the respondent's back problem. He contended that the learned judge had misinterpreted an answer given by Dr Cameron. 22. The question and answer are as follows:
"Q Doing the best you can with that sort of brief
    description, and perhaps I might add that Mr Zeman says that he
    does not think that that incident in any way affected his lumbar
    back condition, are you able to offer any useful comment as to
    whether that would necessarily or may or may not have aggravated
    his back condition.
    A. No, in a word." 23. That answer appears, in the written record, as an ambiguous answer. It could mean that the witness is unable to offer any useful comment, or it could mean that he was offering the comment - namely, that the motorcycle accident had not aggravated the back condition. 24. I think that much depends in the interpretation of that answer upon the manner in which the answer is given and the tone in which the answer is given. The trial judge is charged with the responsibility of interpreting ambiguous answers of that kind. It is clear that the learned trial judge considered that Dr Cameron was offering the opinion that the motorcycle accident had not affected the respondent's back. 25. I do not think it would be appropriate for this appellate court to place a different interpretation on the answer than the interpretation which the judge who saw and heard the witness was prepared to place. 26. His Honour also based his decision to refuse the adjournment upon his acceptance of the evidence of Dr Cameron and Dr Girgis and his rejection of the evidence of Dr McKenna. 27. The decision as to whether to grant an adjournment was a decision to be taken in the exercise of the trial judge's discretion. For the purpose of making that decision, he had to make an assessment of the evidence which had been given before him. 28. It is clear that the learned trial judge was so convinced as to the truthfulness and accuracy of the respondent's evidence, and so convinced as to the correctness of his medical witnesses, and so prepared to reject the evidence of the defendant's medical witness, that he considered that an adjournment was unnecessary and could not be justified. There is no reason to suppose that he overlooked the responsibility of the respondent for the failure to disclose the motor cycle accident before trial. 29. That was an exercise of discretion by the judge. I do not think that he has been shown to have fallen into error in the exercise of that discretion. I do not think that it would be proper for this court to substitute any view of its own for the view taken by the trial judge. 30. I think it was a proper exercise of the discretion and one which should be left undisturbed. 31. Mr Steele referred to the question of reasonable suspicion of bias. As I understood his argument, he really referred to that in the context of whether the matter should be remitted for trial before the same judge or a different judge, if we took the view that an adjournment should have been granted. 32. As in my opinion we should not disturb the decision of the trial judge with respect to the refusal of the adjournment, it is probably strictly unnecessary to deal with the suspicion of bias point, but I think it might be as well simply to indicate my view of it. Mr Steele's argument was that his Honour had expressed a strong view in favour of accepting the plaintiff before he had heard the whole of the plaintiff's cross-examination, and that he had expressed likewise a strong view in favour of the plaintiff's medical witnesses, and against the defendant's medical witness, before the completion of the case, including the plaintiff's cross-examination and the arguments of counsel. He contended that an opinion expressed with such strength on these matters would give rise to a reasonable suspicion of bias on the part of the judge. I do not think that that argument is sustainable. In making the comments which I have quoted in the refusal of the application for the adjournment, the judge, of course, was dealing with that application. He had to make an assessment of the evidence for the purpose of considering whether an adjournment should be granted. He certainly expressed himself with strength on that topic but I am unable to see anything in what he said as indicating that he had a closed mind on the issues of credibility when coming to consider his ultimate decision in the case, and his ultimate assessment of damages. I do not think that the reasons which he was required to give, in refusing the adjournment, should be regarded as indicating a bias on the part of the judge, in the sense of having a closed mind with respect to the issues in the trial before the completion of the evidence and the arguments of counsel given. In my opinion therefore the appeal should be dismissed.

JUDGE2 MILLHOUSE J: I agree.

JUDGE3 DEBELLE J: This is a borderline case. Had I been the trial judge I think I would have granted the adjournment. But it must be remembered that this is an appeal from an exercise of discretion by the trial judge. There were grounds upon which he could reach the conclusion not to grant the adjournment. The appellant's case turned in large part on an interpretation of the answer given by Dr Cameron to which the Chief Justice has referred in his reasons. There is no ground upon which this court should put a different interpretation upon that answer. I, therefore, agree with the reasons given by the Chief Justice for dismissing the appeal. It follows that we do not have to decide the question whether the same judge should hear the action if it had been remitted to the District Court. I would prefer not to express an opinion on that point.