Wiki v Atlantis Relocations (NSW) Pty Ltd

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Wiki v Atlantis Relocations (NSW) Pty Limited [2004]  NSWCA 174 revised - 6/07/2004

FILE NUMBER(S):
40492/03

HEARING DATE(S):               04/06/04

JUDGMENT DATE: 18/06/2004

PARTIES:
Mitzi Wiki (Appellant)
Atlantis Relocations (NSW) Pty Limited (Respondent)

JUDGMENT OF:       Ipp JA Bryson JA Stein AJA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 20998/01

LOWER COURT JUDICIAL OFFICER:     Newman AJ

COUNSEL:
G Barry Hall QC/F Stevens (Appellant)
L King SC/P Sweeney (Respondent)

SOLICITORS:
RTW & Associates (Appellant)
Grahame Goldberg Partners (Respondent)

CATCHWORDS:
COURTS AND JUDICIAL SYSTEM
Dispute between experts
Where expert evidence accepted on the basis that the particular expert was "impressive" and "eminent" - Judicial obligation to give reasons when deciding as between experts
Duty of judge to inform parties of matters within judge's personal knowledge when judge contemplates taking those matters into account 
D

LEGISLATION CITED:
Suitors Fund Act 1951 (NSW)

DECISION:
(1) The appeal is upheld  (2) The order made by Newman AJ granting judgment in favour of the respondent in the sum of $290,139.35 is set aside  (3) The order as to the costs of the trial remains the same  (4) The matter is remitted to the Common Law Division of this Court for retrial  (5) The respondent to pay the appellant's costs of the appeal  (6) The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40492/03
SC 20998/01

IPP JA
BRYSON JA
STEIN AJA

Friday 18 June 2004

MITZI WIKI v ATLANTIS RELOCATIONS (NSW) PTY LIMITED

FACTS

The appellant injured her lower back while carrying out lifting work in the course of her employment with the respondent.  The respondent admitted that these injuries were caused by its breach of a duty of care that it owed the appellant. These injuries were later aggravated by further work carried out for the respondent.  Over time, the appellant’s symptoms worsened, and some two years after the initial injury, she began to experience pain in the upper back. The appellant became depressed and stopped being gainfully employed.

The appellant called a number of medical experts to give evidence at trial who were of the opinion, generally, that the pain in the appellant’s upper back was caused by the strain to the lower back.  The appellant also led evidence of a psychiatrist, Dr Roxanas, who was of the opinion that the appellant was suffering a depressive illness which was caused by her pain and disability.  The respondent led evidence of experts who were of the opinion, generally, that the appellant had only sustained a strain to her lower back (and not disc injuries) and that the injuries to the upper back were not caused by her work.  The respondent also led the evidence of another psychiatrist who was of an opinion different to that of Dr Roxanas.

The trial judge, Newman AJ, found that the appellant had sustained a back strain, but…

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Details
Case
[2004] NSWCA 174
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a decision of Newman AJ in the Common Law Division of the Supreme Court of New South Wales. The dispute arose from a claim for damages for personal injury brought by the appellant against the respondent, Atlantis Relocations (NSW) Pty Ltd. The trial judge had granted judgment in favour of the respondent, dismissing the appellant's claim.

The primary legal issues before the appellate court were whether the trial judge had erred in his assessment of the medical evidence and in his approach to the appellant's case. Specifically, the court considered whether the judge had adequately considered the expert evidence presented, particularly in light of conflicting medical opinions regarding the appellant's injuries and their causation. The court also examined whether the trial judge had improperly discouraged the appellant from leading certain evidence, which may have impacted the presentation of her case.

The appellate court found that the trial judge had erred in his assessment of the medical evidence, particularly concerning the proof of disc injuries and their connection to the appellant's psychological trauma. The court noted that the judge's finding that no disc injuries were proved had unduly influenced his conclusion regarding the appellant's failure to prove psychological trauma. Furthermore, the court held that the trial judge had wrongly discouraged counsel for the appellant from leading evidence regarding the circumstances of the injury and its exacerbation, which was a live issue and potentially relevant to causation.

Consequently, the appeal was upheld. The judgment in favour of the respondent was set aside, and the matter was remitted to the Common Law Division for a retrial. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) The appeal is upheld (2) The order made by Newman AJ granting judgment in favour of the respondent in the sum of $290,139.35 is set aside (3) The order as to the costs of the trial remains the same (4) The matter is remitted to the Common Law Division of this Court for retrial (5) The respondent to pay the appellant's costs of the appeal (6) The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence of several other medical practitioners was adduced by way of reports they had prepared. They did not give oral evidence and were not cross-examined.The medical evidence The appellant called Dr Ellis, a general surgeon who had been practising in Sydney for many years. In a report dated 15 November 1999, Dr Ellis said:“As a result of the work to which she was exposed while employed by [the respondent], [the appellant] has suffered musculo-ligamentous contusion, aggravation of degenerative change in her back with secondary effects in the right lower limb. It is likely that she has internal disc disruption and possibly a disc rupture in her lower lumbar spine.”He said that there was no evidence of psychosomatic illness. He was of the opinion that the appellant’s injuries were consistent with the work which she had performed. He concluded that she was permanently unfit for heavy work. He suggested that an MRI examination be undertaken. An MRI scan was then carried out and the radiologist concerned reported as follows:“Degenerate changes at the T11/12 disc with a small right paracentral disc protrusion. No significant central canal stenosis at this level. A small posterior central disc protrusion with annular tear at L4/5 level. Probable L5/S1 right paracentral annular tear with no significant disc protrusion but slight swelling of the right S1 nerve root.” Dr Ellis reported on 13 January 2000, after the MRI report had been received. He said that the findings in the MRI report confirmed his previous assessment of the appellant’s injuries. Dr Ellis dealt expressly with the late onset of pain (in 2000) in the appellant’s upper back (thoracic spine). He expressed the opinion that that pain was caused by the injury she had sustained while working for the respondent. In the course of justifying this opinion, he explained that disability at a lower level in the spine is often followed by progressive problems at a higher level. In his oral testimony he was asked why this was so and replied:“Because of the rigidity, the muscle spasms and the immobility of the spine at a lower level, this affects the motion and the facilitation of movement at a higher level. It is not uncommon for patients to experience neck pain when the primary injury originally was in the lumbar region.” In the course of his cross-examination, Dr Ellis was shown a lumbar myelogram performed on 10 May 2000 on the appellant. He accepted that the myelogram showed the appellant’s spine to be “relatively normal”. He said, however:“Myelography doesn’t look at dehydration of the discs. MRI examination is the only examination that looks at that. It is a superior examination, in my opinion, for finer estimates and finer detail of lumbar disc injury than a myelogram.”He expressed the opinion that the appellant was suffering from “internal disc desiccation or dehydration … at L4/5 discs and T11/12” and said that this condition was “symptomatic of her back pain”. He did not consider that the myelogram result affected his ultimate conclusion.

Decision

Reasons for decision

I therefore conclude that his Honour erred in treating his finding that no disc injuries were proved as having the effect that the appellant had failed to prove that the back strain (and permanent incapacity and pain caused thereby) resulted in her suffering from psychological trauma.Conclusion In the light of the matters to which I have referred, I consider that the appeal should be upheld. Credibility factors may play a significant part in determining the damages to which the appellant is properly entitled. For that reason this Court cannot determine the damages itself. The respondent submitted that, were the appeal to succeed, the matter should be remitted for retrial only as to non-economic loss and damage for gratuitous care. In my view, however, the errors made by his Honour are capable of impinging on other heads of damage. I would add that, during the trial, the judge discouraged counsel for the appellant from leading evidence as to the circumstances under which the appellant was injured and as to the way in which her injuries were exacerbated. This discouragement had an effect on the way in which the case of the appellant was presented. Taking into account that there was a live issue as to whether the injuries to the appellant’s upper back were caused by the respondent’s breach of its duty of care, the way in which the appellant sustained her injuries might well have been relevant. In my view, the appellant should not have been discouraged from leading this evidence. This is an additional factor that leads me to propose that there should be an appeal on the quantum of damages, generally. Accordingly, I propose the following orders:1. The appeal is upheld.2.The order made by Newman AJ granting judgment in favour of the respondent in the sum of $290,139.35 is set aside.3.The order as to the costs of the trial remains the same.4.The matter is remitted to the Common Law Division of this Court for retrial.5. The respondent to pay the appellant’s costs of the appeal.6.The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled. BRYSON JA: I agree with Ipp JA. His Honour has dealt comprehensively with the considerations which show that it is necessary to order a new trial. A new trial is not a remedy which should be granted readily, but it is necessary in the present case, as it could not be satisfactory for the damages to be assessed by the Court of Appeal on consideration solely of written records of the evidence of expert and lay witnesses. I make particular reference to Ipp JA’s treatment at paras [89] and [90] of the discouragement which the learned Trial Judge offered to the plaintiff’s counsel. It should not be the practice, in claims for damages for personal injury where liability is admitted, to discourage or to exclude evidence of the event and circumstances in which the injury happened. In the present case it seems quite likely, in hindsight, that a description in evidence by the plaintiff of the event in which she was injured would have had some significance for the findings which were made. Admitted passages in pleadings can be a poor basis for decision where causation of some or all alleged sequelae falls to be decided in a contested assessment of damages. I have encountered similar discouragement from trial judges in the distant past, and if his Honour’s intervention and discouragement are in accordance with some practice of trial judges, the practice ought to be reconsidered.

Ratio Decidendi

Legal Principle Established

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