Bugeja v Hatgiantounio; Bugeja v Personace [2002] NSWCA 132 | Case summary

1 HANDLEY JA: The Court has decided that it should order a new trial in these actions against both defendants and on all issues. I will ask Heydon JA to give the first judgment. 2 HEYDON JA: This is an appeal by the plaintiff against orders made by Gamble ADCJ on 22 August 2001 after a hearing on 24 to 26 July 2001. She ordered a verdict in the plaintiff's favour of $118,000, of which the first defendant was to pay $39,300 and the second defendant was to pay $78,700. She ordered the first defendant to pay 33 per cent of the plaintiff's costs and the second defendant to pay 67 per cent of the plaintiff's costs. 3 This appeal is on quantum only, liability having been admitted at the trial by both defendants. 4 The trial judge had to deal with the effects on the plaintiff of two motor accidents, one on 14 June 1996 and one on 13 May 1998. The first defendant was negligent in relation to the first and the second defendant in relation to the second. She held that the injuries received in the 14 June 1996 accident did not cause "significant impairment within the meaning of s 79A(4)" of the Motor Accidents Act 1988. She said that the first defendant contributed "five per cent of the most extreme case". She said that the injuries in the 13 May 1998 accident did not cause significant impairment either. She said that the second defendant contributed "10 per cent of the most extreme case". Accordingly, she made no award for non economic loss for either accident. 5 She appeared to accept what she described as "medical opinion" that the plaintiff's health would improve and said her award of damages reflected that opinion. 6 It is not necessary to go to the details of the ingredients of the award at which she arrived. In my opinion, there ought to be a new trial and because there is to be a new trial, it is undesirable to say too much about the facts. 7 One of the principal attacks launched by Mr C Hoeben SC, who appeared on behalf of the plaintiff, against the judgment was that at numerous key places no satisfactory reasons are given. In general it may be said that the reasons for judgment are ill-ordered, very short of reasoning at key points, affected by admitted mathematical error which led to a significant outcome in point of costs from the plaintiff's point of view and redolent of an unfamiliarity with both the legislation and the field generally. 8 As to unfamiliarity with the legislation, see in particular the passages at the top of page 24 and 27 of the red book, together with the passage at 29.3 of the red book and compare the judgment of this Court in Agostino v Pham [2002] NSWCA 114 at [21] in relation to an appeal from the same judge. 9 Mr Hoeben's address demonstrated that the trial judge arrived at a number of findings either without evidence, or in the face of evidence. He demonstrated that there was no proper analysis of those factors which must be analysed if an assessment of damages for non economic loss is to be made pursuant to the decision of this Court in Mallah v Keti (1999) 46 NSWLR at 291. 10 So far as economic loss was concerned, the reasoning which appears from page 28.2-.9 was damagingly analysed by Mr Hoeben. The errors which Mr Hoeben has highlighted are in my opinion such as to make it inevitable that the appeal must be allowed. Counsel for the first defendant echoed some of Mr Hoeben's criticisms, and counsel for neither respondent attempted to refute them. 11 The question then arose as to whether this Court should reassess the damages for itself, or whether the matter should be remitted to the District Court for a new trial. A further question arose as to whether it should be a new trial only against the second defendant but also against the first defendant. 12 In my opinion, it should be a new trial against both defendants, though Mr DJ Russell, who appeared for the first respondent/first defendant, endeavoured to demonstrate that the award of damages against his client, however flawed in the reasoning process which led to it, was nonetheless a not unjust outcome. 13 There is some medical evidence to suggest that the first accident caused significant harm to the plaintiff, in particular an injury was revealed to the plaintiff's spine, which according to one body of medical opinion though revealed after the second accident could not have been caused by it. 14 As a matter of justice to the second defendant and to the plaintiff, it cannot be said in my opinion that the case of the first defendant is so strong as to preclude its participation in the second trial. 15 Mr Hoeben's submission in relation to the issue of the second trial was essentially this. He said that this Court could reassess damages by taking into account those parts of the plaintiff's evidence on which he was not directly challenged, the medical evidence on which there was no cross-examination and other documentary evidence. 16 The difficulty is that in numerous respects the plaintiff's credibility was challenged, particularly by counsel for the second defendant/second respondent at the trial. It is not clear whether to the mind of the judge those challenges succeeded. It is I think true that there are important areas of the plaintiff's evidence in chief which were not the subject of challenge, but there was undoubtedly a general challenge to the credibility of the plaintiff. 17 I do not think, without prejudice to the outcome of the second trial, that it can be said that those challenges would be certain to fail at a second trial. 18 Some time was spent in argument as to the impact of a video film made of the plaintiff over some days while at work. The second respondent contended that there were inconsistencies between that film and what doctors reported about their investigations and observations of the plaintiff in consultation with him. The second respondent arranged for the plaintiff to be seen by two doctors after the video was taken but those doctors did not give evidence. However, the fact remains that submissions based on the video were made. 19 In my opinion, issues of credit could have been important at the first trial and it is extremely difficult for this Court to take them into account without having seen the plaintiff personally. That is particularly so in relation to the assessment of non economic loss, because, like the assessment of credibility generally, the assessment of whether a plaintiff's enjoyment of life has been damaged and to what extent depends on a judgment of the whole human being. 20 In all the circumstances, it seems to me to be unjust for this Court to proceed to assess damages when the issue turns in part on controversial questions resting on the plaintiff's credibility. That there should be a new trial is a lamentable result, a result which is highly regrettable from the point of view of all parties but in particular no doubt from the point of view of the plaintiff. 21 Accordingly, I would propose the following orders: (1) That the award of damages made by her Honour in favour of the appellant be set aside. (2) The matter be remitted to the District Court for a new trial on damages. (3) That the order for costs made by her Honour be set aside and that the costs of the proceedings to date below be in the discretion of the judge hearing the second trial. (4) That the respondents pay the appellant's costs of the appeal. (5) That each respondent if qualified is to have a certificate under the Suitors Fund Act . 22 HANDLEY JA: I agree. I will only add some very brief reasons of my own. 23 The trial judge assessed the plaintiff's non economic loss at 5 per cent as a result of the first accident and 10 per cent as a result of the second. Her Honour gave no specific reasons for these assessments. This Court can of course draw inferences or conclusions from the rest of her Honour's reasons but in my judgment these provide no clear guidance to her Honour's reasons for these assessments. Her Honour's assessments could have been based on implicit credit findings, or conclusions drawn from the medical evidence, or could, as Mr Hoeben suggested, be vitiated by errors of law, or could be the result of some combination of all these three matters. 24 When an appellate court concludes that the trial judge has given inadequate reasons, the inevitable result, however regrettable, is that there must be a new trial. 25 Subject to that, I agree entirely with what has fallen from my brother and the orders will be as he announced.

Bugeja v Hatgiantounio; Bugeja v Personace

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