Schmerer v Orbinski
[1999] WASCA 232
•2 NOVEMBER 1999
SCHMERER -v- ORBINSKI [1999] WASCA 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 232 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:123/1998 | 10 JUNE 1999 | |
| Coram: | PIDGEON J ANDERSON J STEYTLER J | 2/11/99 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Retrial ordered | ||
| PDF Version |
| Parties: | THOMAS SCHMERER BRIAN DAVID ORBINSKI MOODY & JOHN ENGINEERING PTY LTD |
Catchwords: | Appeal and New Trial Negligence Liability for injury in course of employment Safe system of work Facts found on incorrect basis Retrial ordered Turns on own facts. |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SCHMERER -v- ORBINSKI [1999] WASCA 232 CORAM : PIDGEON J
- ANDERSON J
STEYTLER J
- Appellant (Plaintiff)
AND
BRIAN DAVID ORBINSKI
Respondent (Defendant)
- Appellant (Plaintiff)
AND
MOODY & JOHN ENGINEERING PTY LTD
- Respondent (Defendant)
Catchwords:
Appeal and New Trial - Negligence - Liability for injury in course of employment - Safe system of work - Facts found on incorrect basis - Retrial ordered - Turns on own facts.
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Retrial ordered
Representation:
FUL 123 of 1998
Counsel:
Appellant (Plaintiff) : Mr D R Clyne
Respondent (Defendant) : Mr P R Momber
Solicitors:
Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : Jackson McDonald
FUL 124 of 1998
Counsel:
Appellant (Plaintiff) : Mr D R Clyne
Respondent (Defendant) : Mr J R Brooksby
Solicitors:
Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 PIDGEON J: The appellant was a welder who claims that on 20 December 1989 he received, in the course of his employment, a hernia and a spinal injury when the frame he was welding fell on him. The system of work required the frame to be suspended by a tackle. He said that he was attempting to raise the frame when the chain jammed and his attempt to free it caused the frame to fall on him. He said that he reported the incident to his employer, Mr Peter Moody. Mr Moody claims that he has no recollection of the occurrence and denies there was such an incident. As a result the appellant brought action against Mr Moody's company, the respondent Moody and John Engineering Pty Ltd.
2 Some five years later, on 24 December 1994, the vehicle he was driving collided with a car driven by the respondent, Mr Orbinski, who has admitted negligence for that occurrence. The appellant claimed that this caused further injury to the spine and an exacerbation of the injuries he had earlier suffered at work. There was a long delay in bringing each matter to trial, but the two matters were ultimately tried together at a trial commencing on 17 June 1998 in the District Court. The trial Judge resolved the matter on the basis that he was not satisfied that the appellant was injured in any accident at his place of employment. His Honour found, however, that if the incident at work occurred in the way described by the appellant, the employer was negligent. His Honour's finding in respect of the second accident was that while the appellant would have suffered some damage, it would not have exceeded $5,000 which is below the threshold limit entitling him the judgment. The appellant is appealing bringing into question each of these findings. The employer has lodged a cross-appeal on the question of negligence.
3 The appellant said in evidence that on 20 December 1989 he was welding a frame in the respondent's workshop under the direction of Mr Peter Moody, whom he described as his boss. The appellant described in detail how the tackle from which the frame was hanging became stuck and how the frame fell on him when he was trying to release it. The appellant said that when it came down on him, Mr Peter Moody very quickly mounted the top of the bench and pulled on the chain to release the pressure on the appellant. The appellant said that he was then in pain all the way down from his shoulders. He said that Mr Moody told him to have a cigarette and to calm down. However, he finished welding the frame because Mr Moody said it was wanted in the paint shop. As soon as he finished welding it he went home and returned the following day. He continued to work, but still felt sore and, on 2 January 1990, saw his local doctor, Dr Kromhout.
(Page 4)
4 Dr Kromhout gave evidence that she saw the appellant for the first time on 2 January 1990 when she diagnosed a hernia. On that day Dr Kromhout sent to the Royal Perth Hospital a form to request an outpatient appointment to which she attached a referral letter (AB675 and 185). The referral letter was a printed form requesting a precis of medical history. Dr Kromhout wrote in answer to that question, "sliding (right) inguinal hernia but painful at work (welder) does lots of lifting. Please consider surgery." It was anticipated that the appellant would then receive a communication from the Royal Perth Hospital as to his making an appointment. It would appear that he did not attend the hospital at that stage. He continued to see Dr Kromhout because of increased pain he was having. The next time he saw her was 24 January. On that day she issued a first medical certificate under the Worker's Compensation and Assistance Act 1981. This was directed to the respondent and stated that there was a disability of a right inguinal hernia which had occurred at work on 24 December 1989. She saw him again on 30 January and on 9 February wrote another referral to the Royal Perth Hospital as she feared that the hernia had incarcerated. The appellant did atend at the hospital on this occasion.
5 One of the reasons his Honour found against the appellant as to the happening of the incident in the employer's premises was that he considered that the appellant told the doctor that he physically "picked up his fiancee". This became an important issue at the trial, and in the appeal, so I shall now set out the evidence relating to it. The appellant's fiancee lived in Germany and arrived in Australia on 29 December 1989 when the appellant collected her from the airport. The appellant said that this was the "picking up" to which he was referring. The possibility that the expression may have been used in another sense arose by reason of Dr Kromhout making reference to it in a further letter she wrote to the Royal Perth Hospital on 9 February 1990. Portion of the letter read (AB 637):
"I send you Thomas Schmerer…
I suspect him to have possibly a incarcerated Inguinal Hernia (right).
History: developed low abdominal pain
(1) picking up his fiancee. 31/12th
on examination: (reference is made to the hernia)…"
(Page 5)
6 Dr Kromhout's evidence when cross-examined on this letter was (AB 188):
" Dr Kromhout, you referred Mr Schmerer to Royal Perth by letter dated 9 February and presumably what you set out in that letter was what he had told you had occurred, picking up fiancee on 31 December?---Yes. Well, the referral letter didn't really mention all that."
7 She ultimately said in cross-examination that that is what he told her happened. His Honour took the matter further and asked the doctor a number of questions on this point. The following appears in the transcript (AB 190):
"And the question no-one seems to be willing to ask you and I must say I have been debating with myself whether I should but I am going to anyway: did you attribute a cause to the plaintiff's hernia when you saw him and examined him on 2 January 1990?---No, I didn't know much. I never seen this guy before and I just plainly diagnosed. I don't fully know why he got it but obviously - I mean, we know that a hernia doesn't come just from one occasion. It's a slowly developing problem.
Did he give you any history of when he - - -?---Not that I remember. I haven't put it down. I'm sorry.
You haven't taken a history?---I don't think - I never really knew much about him. It's only later that he volunteered what type of job he did. I never knew about his background history at all until much later.
But certainly on 2 January 1990 you had diagnosed a right inguinal hernia?---Mm.
So when it comes to the letter of 9 February 1990 - that's the handwritten one in the book in front of you?---Yes.
And you write in your handwriting, 'Possibly a' - I can't read it, 'an incarcerated inguinal hernia'?---Incarcerated.
And then he developed low - - -?---Abdominal pain.
Low abdominal pain?---After picking up his fiancee, yes.
(Page 6)
- Yes. What did you understand him to mean by 'picking up'?---I don't know. How do you pick up a woman?"
"What, physically picking up?---Yes.
Or collecting from somewhere?---No, no, physically picking her up in his arms and putting weight on his abdominal area.
Is that the history you took from him?---Yes.
Or is that simply what you understood?---No, no. That's how he conveyed it to me. That's how I understood it."
8 The appellant was cross-examined on this matter and said (AB 116):
"You had seen her originally on 2 January?---Yes.
Presumably when you first saw her you gave her that history. You had seen your fiancee on 29 December. On the 31st you picked her up and you had this pain?---No. No, that's wrong.
Did you suffer a pain when you picked up your fiancee over the Christmas period?---I picked my fiancee up from the airport. Yes, that's about - that's the only picking up I did. It's the only picking up I did.
So you're saying that you didn't pick up your fiancee on 31 December and feel pain in your right groin?---No. I picked my fiancee up on 29 December and that was it.
You picked her up from the airport?---Exactly, and that's the only time - - -
In the colloquial sense, presumably Dr Kromhout is saying you actually put your arms round her and picked her up here?---No. No, I didn't."
9 The appellant's wife gave evidence as to the change in her husband following his injury. She was born in Germany and became engaged to the appellant over the phone. She arrived in Australia on 29 December 1989 and was met by the appellant. They married on 20 January 1990. The only questions she was asked about being picked up were in cross-examination and were as follows: (AB205)
"He was normal?---Not normal. He was in pain.
(Page 7)
- And that started when he picked you up one day and hurt himself?---How can he pick me up? He never picked me up. Only from the airport.
So that's the pick-up, is it?---That is the pick-up.
And he was all right when he picked you up from the airport though, wasn't he? He was fine?---He was not all right. He looks in pain."
10 Dr Kromhout on 24/1/1990 sent to the respondent a First Medical Certificate under the Workers' Compensation and Assistance Act 1981 in support of a weekly payment claim. This certificate stated that the disability was a right inguinal hernia and that the disability occurred at work on 24 December 1989. The doctor issued a Progress Medical Certificate on 9 February 1990 as well as subsequent certificates.
11 The appellant attended at the emergency department of the Royal Perth Hospital on 9 February 1990 taking with him Dr Kromhout's referral letter. The first page of the Emergency Department's case notes contains a history which must have come from the appellant. This reads (AB520):
"Late December '89 noticed sudden pain/burning in (R) groin while lifting boiler (works as boiler-maker/welder) at work. Subsequently developed painful (R) groin swelling over next few days."
12 The second page contains the following entry in a box headed "Presenting Complaint, History and Duration":
"3/12 history of injury (picking up fiance). Saw GP January (R) inguinal hernia - no pain on palpation. Using brace etc."
13 I would infer that this was transcribed from the referral letter. The hospital records show further notes made at a visit by the appellant on 12 February. This said:
"Happened at work - 20/12/89 while lifting a large trolley - sudden pain etc."
14 The component the appellant was welding was sometimes referred to as a trolley.
(Page 8)
15 The appellant on 20 February 1990 signed an application for workers' compensation in which he said that on Thursday, 21/12/1989 he suffered the injury in the workshop when he was "turning heavy steel frame over". There was in addition the evidence of Mr Richardson who was a boilermaker and welder with the respondent up until April 1990. He said that the appellant a month or so before his employment ceased told him that he received a hernia when he was turning a job in the workshop at the chain block.
16 Mr Peter Moody gave evidence that he and his brother, John Moody, were partners in the firm of Moody & John Engineering. It appears from the record that the entity is a proprietary company, but it would be sufficient for these reasons to deal with the matter on the basis that they were seen as partners employing the appellant. Mr Moody described the chain block. He said in evidence that he was in court when he heard the appellant describe the accident which the appellant said occurred in late 1989. (AB288) He said he had no recollection at all of that occurrence. He did, however, remember the appellant coming into his office at about that time rubbing his lower abdomen complaining of a pain. Mr Moody said that he said to the appellant, "I don't know Tom. It might pay you to go to a doctor and check it out. It could be appendicitis." He said that prior to that there were no complaints of pain or injury and no complaints about the inadequacy of the chain block. He said that they parted company in February 1990 with words to the effect, "I think it is best we part company. We are not getting enough out of you as far as hours and we might look around and get someone who is prepared to work more hours." Mr Moody cannot remember the response, but the appellant did cease working. Mr Moody said that the appellant raised a question of compensation and the following was said: (AB289)
"What was your response to that?---I said, 'What for?' He said, 'For a hernia. I have been diagnosed that I have got a hernia.' I said, 'Well, when was it done?' and he said, 'At work.' I thought, 'Well, done at work. A hernia can be done any time.' I said, 'Are you sure you have done it at work?' 'Yes.' So that was it."
17 Mr Moody's evidence was to the effect that repeated absences by the appellant was the reason that led him to the decision to terminate the appellant's employment. The first document relating to a workers' compensation claim was the certificate issued by Dr Kromhout dated 24 January 1990. Mr Moody was asked about this. He said he did not look after that side of the matter and when forms of that type came in he
(Page 9)
- would give them to his wife who did the secretarial work for the business. The appellant's evidence was that he handed that form to the other partner, Mr R B Moody. Mr R B Moody said that the first he heard of the appellant's claim was one day when the appellant said "You will be hearing from my lawyer".
18 His Honour's reasons for reaching the conclusion he did were: (AB27)
"I find myself, after having given very careful consideration to the demeanour of the plaintiff and his witnesses and the demeanour of the defendant's witnesses to be unable to come to any conclusion one way or another based upon the demeanour of the witnesses. Appeal courts have often commented on the unsatisfactory aspects of deciding a case by reference to the demeanour of witnesses alone. For my part I found it most difficult in this case. The plaintiff, whilst giving evidence, impressed me as being honest and direct. I saw no reason to disbelieve Mr Richardson when he gave evidence of the plaintiff's timely complaint to him. Similarly, I found no reason to disbelieve Mr Peter Moody or Mr Ronald Moody. This being said, I confess to being disquieted by the plaintiff's evidence in respect of the motor vehicle accident the subject of the second action which was heard at the same time as this action. I thought it somewhat remarkable that he should volunteer the evidence that he did in cross-examination recorded at T75. The plaintiff said that he was involved in a motor vehicle accident with Mr Orbinski, the defendant in the second action, on 24 December 1994. Exchanging telephone numbers with the defendant the plaintiff ascertained that the defendant's wife worked for Western Underwriters, an insurer and the insurer of the defendant's vehicle. The plaintiff said that he spoke with Mrs Orbinski who asked him over the telephone 'Did he lay rubber?' Whilst Mrs Orbinski was not called as a witness and the plaintiff's evidence of this curious question attributed to her could not be further explored, I was nevertheless somewhat unsettled by it but have decided overall to ignore it when weighing up the evidence for and against an accident having occurred at work on 20 December 1989 and the credibility of the witnesses.
I have finally determined to resolve this matter against the plaintiff for two reasons. The first is based upon the evidence
(Page 10)
- of Dr Kromhout. She impressed me as being a 'no nonsense' type of person who not only had a clear recollection of the plaintiff but had taken a history from him which she recorded adequately and accurately when she said that the plaintiff complained to her that the onset of his pain was when he physically picked up his fiancee in his arms thereby putting weight on his abdominal area, presumably giving rise to the sliding right inguinal hernia. I make this finding notwithstanding Mrs Schmerer's denial that her husband had picked her up. Dr Kromhout was prepared to sign a workers' compensation medical certificate on the basis of her medical opinion, not seriously challenged in my view, that hernias more often than not are developmental in origin (T135) and having regard to the nature of his work over time, could have been work related.
The second reason why I have come to the conclusion that on balance, if the plaintiff was injured at all it was not in any accident at his place of employment, is the inconsistent history given by the plaintiff as to the date on which the alleged incident occurred. Dr Kromhout records that on the plaintiff's first attendance upon her on 2 January 1990, additional to the matters I have already mentioned, the plaintiff complained of right sided low abdominal pain 'since Christmas, worsening after picking up a heavy weight.' Her first medical certificate dated 24 January 1990 records the disability having occurred 'at work on 24 December 1989'. The plaintiff's claim for workers' compensation completed on a standard form in his own hand on 20 February 1990 says that the accident took place on Thursday, 21 December 1989. This date too was given to the insurance investigator, Mr Ridgewell, in a statement which he took from the plaintiff on 9 March 1990, and which is signed by the plaintiff. According to the plaintiff's invoices he worked seven and a half hours on that day and he only worked two hours on Wednesday, 20 December 1989. This is not a simple case of getting either the day of the week right and the date wrong or vice versa, here, he has given three quite different days and dates upon which the accident is alleged to have occurred.
Hence, while I admit to some misgivings about Mr Peter Moody putting his evidence on the basis that he could remember no such incident as that claimed by the plaintiff having taken place in his factory, when I would have thought the incident described
(Page 11)
- by the plaintiff so dramatic that Mr Peter Moody would have been in a position to say that it never happened, I nevertheless find the plaintiff's version more improbable than Mr Moody's less than fulsome denial. Put another way, the plaintiff has not persuaded me that on the balance of probabilities he was injured in any accident at his place of employment with the defendant. It follows that his claim for damages arising out of injuries he alleges he sustained in such an accident must be dismissed."
19 The basis of the grounds of appeal and the submissions of Mr Clyne to displace his Honour's finding on liability are that having regard to the favourable comments of credibility and honesty of the appellant, there was overwhelming evidence to support the fact that he received the injury in the way he claimed. Mr Clyne refers particularly to the fact that the general practitioner gave a medical certificate supporting that it was a work received disability and there was a likely misunderstanding in respect of the use of the expression "picking up fiancee".
20 It is a fundamental task of a Judge or of a jury to make an assessment of witnesses based on their demeanour and how the witness impresses the Judge or jury. Juries almost invariably are addressed along those lines. There is nothing unsatisfactory in a Judge carrying out that task. The parties are entitled to this assessment. I consider his Honour's reference to an unsatisfactory aspect was a reference to considering demeanour alone and ignoring other factors. However, I would interpret his Honour's reasons as meaning that his Honour was not able to determine the question on the demeanour of the competing witnesses so he examined whether there were other factors present which would support the probabilities one way or the other. He referred to two factors which he considered justified him in finding against the appellant. The first was Dr Kromhout's belief that the appellant physically picked up his fiancee thus giving an explanation for the hernia. The second was his referring to different dates. This court could well be in an equally good position to weigh up the effect of these factors so I propose to examine each of them.
21 I consider in the circumstances of this case the stage was reached in the fact finding process the trial Judge was following where the matter could not be resolved on the credibility of Dr Kromhout. It is clear that she had noted that the appellant had picked up his fiancee. It is equally clear that she believed that this referred to an actual physical lifting. The essential question is whether she could have been mistaken in interpreting the appellant's intended meaning when he used this phrase. The appellant's first consultation with Dr Kromhout was a day or two after his
(Page 12)
- picking up his fiancee, a person he planned to marry within the month. There is a possibility that in his conversation with Dr Kromhout he would have made reference to collecting his fiancee. What was said and the context in which it was said become critical. His Honour saw this when he said of Dr Kromhout:
"She impressed me as being a 'no nonsense' type of person who not only had a clear recollection of the plaintiff but had taken a history from him when she recorded adequately and accurately when she said that the plaintiff complained to her that the onset of his pain was when he physically picked up his fiancee in his arms thereby putting weight on his abdominal area, presumably giving rise to the sliding right internal hernia."
23 In her cross-examination (AB188) she was asked about the picking up of the fiancee in a passage I have already set out. There were two further answers she gave which showed that her recollection of 2 January 1990 was not precise and not backed by detailed notes. These were:
"He had initially come to see you on 2 January 1990 and, what, I think he came straight from work, didn't he, after having some difficulty at work?---I don't remember.
Do your notes reveal what time he came to see you?---No."
24 A little later his Honour asked some questions on this point in the passage I have already set out. I would refer specifically to that part where his Honour asked if, on 2 January, whether he gave any history and the reply of the doctor was, "Not that I remember. I haven't put it down. I'm sorry." She then referred to the fact that it was only later he volunteered what type of job he did. His Honour asked further questions in the area in the passage I have set out, but it is plain from her answers that the doctor was reconstructing the situation from the letter of 9 February and giving her interpretation of what was meant in that letter by the term "picking up". I can find no indication of any detailed note
(Page 13)
- having been made recording what the appellant actually said or of the appellant actually using the word "arms".
25 The next important factor to weigh up is Dr Kromhout's certificate of 24 January 1990. This certificate is inconsistent with the lifting of his fiancee as being the cause. His Honour referred to the fact that Dr Kromhout was prepared to sign a workers' compensation medical certificate on the basis of her medical opinion, not seriously challenged in his view, that hernias more often than not are developmental in origin and having regard to the nature of his work over time, could have been work related. The emphasis was his Honour's. I consider these observations of his Honour are inconsistent with the certificate which, in answer to the question place and date on which disability occurred, there appear the words, "at work - 24 December 1989." There probably would be no challenge to the proposition that hernias more often than not are developmental in origin. I would, however, add in passing that it would not have been possible for the appellant to challenge what is elicited from the witness in cross-examination or by his Honour, as the appellant's counsel is not permitted to cross-examine.
26 The next factor to consider is the documentary evidence from the hospital. The documentary evidence is admissible under s79B of the Evidence Act and it is open to the trial Judge to give weight to this (s79C). This shows that at the time the appellant presented Dr Kromhout's letter he himself was ascribing the injury to the type of incident to which he testified at the trial.
27 My conclusion is that it was not open to decide the case against the appellant without a much more detailed analysis as to whether there was a misunderstanding as to the intended meaning of the phrase in question, nor would it be possible to resolve it on the reasons given on this particular question by his Honour.
28 The next factor which led to the adverse finding was the mistake in dates. I do not consider that this alone could support the probabilities particularly as there was no adverse finding of credibility against the appellant. It would be very easy for a person in the appellant's position to make a mistake of this type when recounting events a month or so later.
29 Two possibilities now arise. Firstly, there may be sufficient on the evidence the learned Judge did accept for this Court to infer that the probabilities point in a certain direction and consequently to make a finding. The second alternative is that it could be inferred that the
(Page 14)
- evidence led by the appellant who was carrying the onus of proof was not strong enough to enable a positive finding to be made. Consequently, the action fails by reason of there being a failure to discharge the onus of proof.
30 There are factors present to support the proposition that an inference might be open on the probabilities. There are indications that the claim for workers' compensation was in fact made well before the conversation terminating the appellant's services. There appeared to be no adverse reaction to such claim being made. There is the documentary evidence that the appellant was stating at the time that the accident occurred in the way he now testifies and there is the evidence of Mr Richardson as to his having made a claim. It would be open to consider this in the context of rebutting recent invention. The factors to support the second proposition are that Mr Peter Moody swore positively that he had no recollection of the occurrence. His Honour's remarks would indicate Mr Moody's evidence made a positive impression on him and the possibility arises as to whether that evidence would give rise to a sufficient doubt to say the matter has not been proved on the balance of probability.
31 There are, I consider, two matters which would inhibit this Court from considering these competing questions further. The first difficulty is that his Honour, after making an exhaustive review of the medical evidence, appeared to form a view on the probabilities that the hernia developed over a long period of time and was not caused at work or by any incident at the end of 1989/1990. His Honour's reasons in this area were: (AB36)
"I think it more probable than not that the plaintiff, developing a very minor hernia over a long period of time, talked himself into a high state of anxiety about its potential for damaging his life such that he now lives the life of the invalid for no reason other than the fact that he has painted himself into a corner by the fact that he believes that he has good reason to be ill. It is a most perplexing picture and whatever the truth of it, the plaintiff has not persuaded me on the balance of probabilities that he has sustained any damage by reason of any alleged incident in the course of his employment with the defendant.
In these circumstances there is no point in making a provisional assessment of damages, however, if there was an incident such as that described by the plaintiff then I find that at most he suffered some minor damage and upset causing him to lose no
(Page 15)
- more than six hours work. Provisionally I would award the sum of $1,000.00, so modest a sum I decline to break it down into its component parts."
32 This suggests a positive finding as to a cause not associated with the employment. His Honour earlier (AB33) referred to the fact that his conclusion was that there was no incident in which the plaintiff sustained an injury in the course of his employment.
33 I consider in these circumstances that it would not be open for this Court to make inferences that either the claim has succeeded on the probabilities or that it has failed. I consider the only course open is to order a retrial.
34 As it has not been established whether or not the appellant suffered an injury in the way he claimed, it would not be possible for this Court to determine whether or not the employer was negligent in the system of work as it would be no more than an opinion on a hypothetical situation. His Honour has not purported to make a full provisional assessment of damage. The question of damages would therefore have to be determined at a new trial.
35 Amongst the injuries claimed as a result of the second accident were an exacerbation of pain associated with injuries sustained in the first accident, particularly the hernia and a soft tissue injury to the lumbar spine. There was a further claim for a psychiatric injury arising from depression. There was some evidence supporting the proposition that this may have been contributed to by the first accident. His Honour's findings in respect of the second accident are to an extent based on his findings of the first accident, which at present cannot stand. It is understandable that this is the situation as that was the reason for having the two trials together. In these circumstances it would not be possible for this Court to determine the question whether there is any manifest error in respect of the assessment for the second accident so that this too must go back for retrial.
36 I would allow the appeal and order a retrial.
37 ANDERSON J: I have had the advantage of reading in draft the judgment of Pidgeon J. I agree that there must be a retrial, for the reasons given by Pidgeon J. There is nothing further I wish to add.
(Page 16)
38 STEYTLER J: I have had the advantage of reading the reasons for decision of Pidgeon J. I agree with them and with his Honour's conclusion that the appeal should be allowed and a retrial ordered. I have nothing to add.
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