Hume v Walton

(1) whether, having made findings adverse to the credit of the respondent and members of her family who gave evidence corroborating her complaints of disability, the primary judge failed to attach any, or any adequate, significance to those findings in assessing damages;

(2) whether the medical evidence of the respondent's medical condition afforded objective, incontrovertible material inconsistent with her claim that she suffered little, if any, medical disability prior to the accident;

(3) whether the primary judge failed to attach any, or any adequate, weight to medical evidence which was inconsistent with the respondent's complaints about her post-accident disabilities;

(4) whether the primary judge failed to draw appropriate Jones v Dunkel inferences having regard to the respondent's failure to call medical practitioners who had treated her since the accident;

(5) whether the damages awarded were manifestly excessive. 10 The effect of issues (1) - (4), the appellant argued, was that the primary judge had failed to consider his case properly, resulting in a "substantial wrong or miscarriage of justice which justified appellate intervention: Pt 51, r 23(1), Supreme Court Rules 1970; Dixon v Whisprun Pty Ltd [2003] NSWCA 310.

The primary judge's reasons 11 The primary judge noted that there was no dispute that the respondent had suffered a fractured sternum in the accident which had been treated "with no ongoing complaints". She recorded that the respondent claimed "she is considerably disabled as a result of the accident to the point where she is unable to undertake any form of employment and that she remains in need of significant assistance by way of personal and domestic services". 12 Accordingly her Honour identified the issues raised in the case as involving "the precise nature of the injuries and disabilities causally related to the accident and the extent to which those injuries aggravated medical conditions from which the respondent suffered at the time of the accident". 13 The primary judge recorded the respondent's evidence that she managed her home and family without difficulty until she was diagnosed with chronic fatigue syndrome in 1990 and that her condition had subsequently improved to the extent that she obtained employment in 1996 as a telemarketer with Access Industries. She remained in that employment and, immediately before the accident, was working up to an average of sixteen hours a week as a telemarketer of art union tickets. 14 In June 1998, notwithstanding her employment, she was granted a partial disability pension on the basis of her chronic fatigue syndrome and depression. 15 The primary judge noted that: "The pre-accident medical conditions that were relevant to the assessment of the plaintiff's claim were the chronic fatigue syndrome of which I have already made mention. There is also evidence of a depressive condition of some significance which affected the respondent's ordinary life over a considerable period of time. There is material indicating that the plaintiff had within a year prior to the motor vehicle accident, complained of shoulder pain on the left side which had been investigated without final diagnosis." 16 Her Honour then referred to the respondent's evidence that her chronic fatigue syndrome had virtually resolved prior to the accident. The respondent said the depression had been treated with anti-depressants. She also said that her depression had lifted prior to the accident and that she had been discussing reducing anti-depressant medication with her general practitioner, although she continued to take it. She said her depression gradually became worse after the accident. The primary judge noted that the respondent had accepted that she had taken anti-depressant medication to the same level prior to the accident as that on which she remained after the accident. 17 The respondent also said her left shoulder problem had involved a muscle spasm which had occurred on one or two nights while she was at work. She had undertaken deep muscle therapy and had been given Panadeine Forte prescriptions by Doctor Lamb, her general practitioner at the time of the accident.

18 A week before her accident, Dr Lamb wrote a report addressed to "To whom it may concern", dated 28 May 1999 which reads: "Vicki has suffered from long term problems of chronic depression and is currently receiving anti-depressant medication. Concurrently she suffers from chronic fatigue syndrome which was initially diagnosed in September 1990, for which Vicki receives ongoing supportive therapy." 19 The primary judge noted that the respondent could not explain this report. 20 The respondent denied the suggestion, put to her in cross-examination, that she was exaggerating her condition. 21 The primary judge also summarised the evidence given by members of the respondent's family, which largely corroborated her evidence of her pre-accident and post-accident condition. It is unnecessary to detail that evidence. 22 The primary judge summarised the evidence given by the respondent and her family, as indicating "a person of some considerable disability which the plaintiff and her family related solely to the consequences of the accident". She added that "having regard to this I have paid close attention to the documentary material which is in evidence". 23 Her Honour then considered the substantial body of expert evidence which had been tendered, by both parties. None of the experts were cross-examined. 24 She referred to the clinical notes of Doctors Lamb and Kent tendered by the appellant. Doctor Kent was also a general practitioner who had treated the respondent prior to the accident. She observed that the notes commencing from about 1996 "do not appear to support the evidence of the plaintiff and her family concerning the plaintiff's immediate pre-accident medical condition".

25 Those notes indicated "that the plaintiff consulted her general practitioner at intervals of not less than two weeks … for vitamin injections … that in April 1986 the plaintiff was suicidal and anti-depressant medication was prescribed … (and that) the plaintiff remained on anti-depressant medication up to the date of the accident". 26 The respondent had given evidence suggesting that prior to the accident she occasionally took Panadeine Forte. As to this evidence the primary judge observed: "The notes indicate that prescriptions for this medication were provided at least two weekly, in some cases weekly, between January 1988 and the date of the accident. There is a reference in March 1998 to the plaintiff's needing additional medication having taken some of the Panadeine Forte that had been prescribed for her husband. The last entry in the notes prior to the accident is dated 28 May 1999 when a further prescription was provided for Panadeine Forte". 27 The respondent had disagreed (presumably in cross examination) with the proposition that on examination in John Hunter Hospital on 8 June 1999, she had had full movement in her neck. As to this, the primary judge referred to the notes of the John Hunter Hospital (where the respondent was admitted following her accident) which she said: "…do in fact confirm that on examination on 8 June 1999 the plaintiff demonstrated a capacity for a full range of movement in the neck contrary to her claim that she had been unable to move her neck since the date of the accident". (emphasis added) 28 The respondent tendered five reports from Doctor Ghabrial, an orthopaedic and spinal surgeon. The primary judge summarised his reports without comment. Later in her judgment her Honour referred to a report provided by Doctor O'Keefe to the respondent's solicitors. She observed that: "… on examination, unlike Doctor Ghabrial , he was unable to detect obvious para-spinal muscle spasm on examination of the plaintiff's neck" (emphasis added). 29 Her Honour critically reviewed reports provided by Doctor Kent, who had also provided medical treatment to the respondent after her accident. She noted those reports dealt with the respondent's reports of neck pain, "but said nothing in relation to chronic fatigue or depression". She said: "In June 2002 Doctor Kent provided a second report in which she related all of the plaintiff's disabilities to the motor vehicle accident stating that prior to the accident the plaintiff had been an independent woman, driving, with a job, actively putting her life back together after her marriage break-up and able to do all her daily living tasks. If this is a woman of that much capacity one wonders why a doctor in the same practice as Doctor Kent was providing the plaintiff with weekly or fortnightly prescriptions for Panadeine Forte and providing her on a fortnightly basis with vitamin injections. " (emphasis added) 30 Her Honour referred, without comment, to the evidence of an occupational therapist, Mr Proctor, who was retained by the respondent's solicitors to undertake a functional assessment of the respondent for the purpose of identifying her disabilities. She noted Mr Proctor's conclusion "that the respondent's ability to perform basic activities of daily living was markedly reduced although she was capable of performing self care tasks and that her ability to perform domestic tasks on a regular basis was reduced". 31 The primary judge also referred, without comment, to evidence given by Doctor Lambeth, a psychiatrist retained by the respondent's solicitors. She referred as well to an assessment for domestic and personal care assistance conducted by Dollina Renton on behalf of the respondent's solicitors. 32 Her Honour then turned to the appellant's medical evidence. 33 The appellant sent the respondent to a consultant psychiatrist, Doctor Smith, in December 2002. After summarising his report, the primary judge observed: "Doctor Smith stated that the details surrounding her previous psychiatric treatments and her clinical presentation at that time would be most relevant in evaluating her symptomatologies and comparing them with her current complaints. This is a comment of Doctor Smith that I regard of some significance to my own task in assessing this plaintiff's claim. In Doctor Smith's opinion the plaintiff had presented with significant embellishment to her pain presentation. He said it was difficult to explain her purported paraplegic symptoms on her left side and her restrictions were not consistent with clinical findings. The possibility of feigning, exaggeration or frank malingering he said could not be categorically excluded. He did not accept the diagnosis of chronic pain syndrome. He was similarly not persuaded to accept that the motor vehicle accident had produced for the plaintiff a major depressive episode and at worst he would regard her as experiencing an adjustment disorder with depressed mood. If there were, in fact, he said, physical symptomatologies which were proved to contribute to her marked physical restrictions, the following psychological sequelae accompanying such restrictions would be significant and could possibly account for an exacerbation of a depressive disorder. He concluded that the plaintiff's psychological symptomatologies were excessively embellished compared with the injuries sustained . But he stated that the prognosis for her recovery was poor given her marked avoidance and dependant characteristics and ongoing symptomatology. He anticipated that the plaintiff would remain unfit for employment" (emphasis added) 34 Her Honour then referred to the evidence of an orthopaedic surgeon, Doctor Cummine. She noted that he "could not identify convincing organic pathology for the plaintiff's symptoms in her neck, left shoulder and left arm which resulted in loss of power and use of the left arm". She referred to his evidence that "he would have expected the plaintiff's symptoms to have gradually resolved" and that he "thought that the plaintiff was fit for all forms of employment for which she is educationally qualified". 35 Finally, the primary judge referred to a report provided to the appellant's solicitors by Ms MacMaster, a consultant occupational therapist. Her Honour noted that Ms MacMaster's recommendations "suggested that the plaintiff did not require assistance with activities of daily living", that the respondent "had the capacity to return to her pre-injury duties as a telemarketer and she was unclear why the plaintiff had not returned to that employment".

36 Having reviewed the medical evidence the primary judge said: "The difficulties which I face in the assessment of the plaintiff's claim would be obvious from that summary of the medical material. The real issue is the extent to which the plaintiff's psychological condition has been exacerbated by this motor vehicle accident. In this respect the ideal person to observe and report upon the differences between the plaintiff before and after the accident would have been Doctor Lamb who had provided the bulk of the treatment to the plaintiff up to June 1999 . I have no report from Doctor Lamb, with the exception of exhibit 4 which indicated that her opinion one week prior to the plaintiff's accident was that she continued to suffer from chronic fatigue and from depression which were conditions that had been long term. Doctor Kent's reports deal with the plaintiff's physical complaints only. Nothing is said concerning the extensive history of depression and chronic fatigue. There is reference to some psychiatric treatment provided to the plaintiff, apparently according to one reporter, related to family dysfunction. I have received no reports in respect of that treatment nor do I have any explanation for the absence of that information. As far as the complaints of neck pain are concerned, having regard to the objective evidence, the plaintiff's complaints appear to be of a considerably greater degree of disability and discomfort than one would expect . Both Doctor Spittaler and Doctor Cummine are not persuaded as to the need for radical surgery. In contrast to Doctor Ghabrial's finding, Doctor O'Keefe in March 2001 could find no evidence of cervical spasm, although Doctor O'Keefe stated that the plaintiff had definitely had arthritis in her neck prior to the injury. As to the complaints of virtual paralysis of the left arm and the left side of the body, there appears to be no medical support for these complaints at all, except to the extent that they may emanate from what are very minor indications of problems in the plaintiff's neck . In addition I have noted discrepancies between the medical histories and the evidence of the plaintiff, her husband and her son concerning the extent to which the plaintiff was involved in housework prior to the accident as compared to the extent of the assistance required after the accident. It was argued on behalf of the plaintiff relying upon authorities such as Purkiss v Crittenden 114 CLR 164 and Watts v Rake 108 CLR 158, that, having put her evidence before the Court the evidentiary burden transferred to the defendant to establish that the plaintiff's current complaints were the result of her pre-existing condition rather than the result of the accident. However, it must be remembered that it is the plaintiff's responsibility to establish a prima facie case. Taking all these matters into consideration I have reached the conclusion that there was a considerable amount of understatement by the plaintiff and her family concerning her condition prior to the accident and a considerable amount of over statement relating to her condition as it has existed after the accident . Having said that I note that the plaintiff did suffer in this accident a fractured sternum which must have caused considerable pain and discomfort, that she was involved in an impact of considerable force which would undoubtedly have placed strains on her body such as to generate soft tissue injury and perhaps symptomatology in a previously asymptomatic degenerative neck condition. I have some sympathy with Doctor Cummine's views that in ordinary circumstances the consequent symptoms of discomfort and disability ought gradually to have resolved. I am satisfied that the immediate post accident period would have been one of substantial pain and disability which may well have aggravated the plaintiff's depressive condition and her chronic fatigue. I do not accept that the evidence before me establishes that the plaintiff has suffered as a result of this accident the considerable disability of which she now complains ." (emphasis added) 37 Her Honour then proceeded to assess damages. 38 Her Honour's assessment of non-economic loss took account of "the soft tissue injuries, the fracture of the sternum, degeneration of symptoms in her neck and exacerbation of the depression and chronic fatigue". Having regard to those factors, she assessed the respondent at 30% of a most extreme case and awarded the sum of $75,000.00. She accepted that the plaintiff would not be able to return to her employment. She noted that the evidence established the respondent had worked an average of 16 hours a week and a net weekly wage of $183.00. Accordingly, she allowed the amounts claimed in respect of past economic loss in the sum of $45,639.00 and future economic loss in the sum of $93,781.00. 39 Insofar as out-of-pocket expenses were concerned her Honour allowed a sum equal to 60% of the amount claimed saying that: "Sixty-percent [is] allocated to the contribution I regard as appropriate to the treatment for the medical conditions generated by the accident itself, the remaining 40% related to the plaintiff's pre-existing condition." 40 She concluded that insofar as future out-of-pocket expenses were concerned, leaving aside a need for surgery referred to by Doctor Ghabrial which she concluded was not necessary, the respondent should be awarded 60% of the remaining out-of-pocket expenses. 41 Her Honour then turned to deal with the respondent's domestic assistance claim. In this respect she said: "In dealing with domestic assistance it seemed to me to be very clear that a person who is consuming Panadeine Forte at the rate at which the plaintiff was consuming it, prior to the accident as well as sleeping medication, anti-depressants and cannabis would have been limited in her capacity to do more than engage in her employment for four hours a day and thus I regard as more probably correct the evidence of the plaintiff's husband that he provided her with considerable assistance up to the time of their separation. After that, although I am told that the plaintiff undertook her own housework I am not satisfied that that evidence is accurate having regard to the fact that Belinda remained at the house at that time. In those circumstances it seemed to me that prior to the accident the plaintiff would have required a considerable amount of assistance and I do not accept that a period after the first six months following the accident the plaintiff required assistance of four hours per day. The result will be that from the date of the accident for a period of six months I will allow four hours per day at a rate of $17.50 per hour. From that date to the present I regard the plaintiff's additional needs as a result of the accident as being eleven and a half hours per week and that allowance will be provided for the past to the date of judgment and into the future at the rate of $17.50 per hour." 42 After delivering her judgment the primary judge asked the parties to calculate the figures. The matter was stood over to the next morning to deal both with the final quantum of her Honour's judgment as well as with costs. 43 On 4 December 2003, her Honour dealt with the appellant's application for a costs order pursuant to District Court Rules Pt 39A, r 31 on the basis that the matter came before the Court by way of a rehearing from an arbitrator's award and that the respondent had not run her full case before the arbitrator. It appears that the respondent had not called her son and her husband before the arbitrator. The appellant argued that if those witnesses had been called before the arbitrator, a different result may have been achieved by the respondent and the need for a rehearing avoided. 44 After reviewing the arbitrator's award and commenting that the respondent had "improved her position very considerably", the primary judge noted that absent the arbitrator's reasons she was left to speculate as to the basis for his conclusion. In rejecting the appellant's application for a Pt 39A, r 31 costs order, her Honour said: "The overwhelming evidence was that the plaintiff would not return to the limited employment that she was engaged in at the time of the accident. This material all came from the medical evidence and in itself in my view would have warranted an award significantly in excess of that provided by the arbitrator. That the plaintiff also succeeded in persuading me that she required personal and domestic assistance additional to that which she was receiving prior to the accident, seems to me to be incidental. It was also in my view, inevitable that the plaintiff would recover a greater sum than that awarded by the arbitrator and even were she not to have called her husband and her son on the aspects of domestic and personal care."

Arguments on appeal 45 Mr K Rewell SC, who appeared with Mr E Romaniuk for the appellant, submitted that the primary judge failed properly to consider the appellant's case and that this constituted miscarriage of justice 46 Mr Rewell contended that the even though primary judge disbelieved the respondent and members of her family, appeared to accept the appellant's medical evidence and was critical of the respondent's failure to call Doctor Lamb and adduce other evidence concerning her pre-accident medical treatment, those matters were not reflected in her assessment of damages. 47 He argued that "… the trial judge ignored or overlooked completely her Honour's own findings as to the true significance of the respondent's prior medical history". He argued that, having found in relation to her assessment of out-of-pocket expenses that 40% of the respondent's need for medical treatment since the accident related to her prior medical conditions, the primary judge inconsistently failed to have any, or any adequate, regard to that prior medical condition in assessing other heads of damage. He contended that the primary judge's assessment of damages was "completely at odds with the evidence [she] accepted". 48 Mr Rewell submitted "having found that the appellant's evidence was to be preferred on almost every issue in dispute at the trial, her Honour … failed completely to give effect to those findings and assessed the respondent's damages as if the opposite were the case. 49 He also submitted that, having regard to the primary judge's apparent rejection of the respondent's case, her conclusions, in particular, that the respondent had suffered a total loss of earning capacity and would require 11 ½ hours domestic assistance for a period from six months after the date of the accident and then indefinitely, were not supported by reasons. 50 Mr D Russell SC, who appeared with Mr B Bachelor for the respondent, argued that the neck injury the respondent suffered in the accident "was significant and a major cause of [her] inability to work thereafter". He submitted that the primary judge "appears to have accepted the opinion of Doctor Lambeth" (my emphasis) who opined that the respondent's pre-accident depression was exacerbated after the accident. 51 Mr Russell also submitted that the appellant was incorrect in arguing that the primary judge had rejected the evidence of the respondent and her family. Rather, he argued, while the primary judge may have had reservations about that evidence, it was not rejected but was evaluated in conjunction with the medical evidence (particularly that of Doctor Lambeth). This enabled the primary judge to reach what the respondent contended was a finding concerning the respondent's psychological state. The "finding" to which the respondent referred was her Honour's conclusion that the post-accident period: "… may well have aggravated the plaintiff's depressive condition and her chronic fatigue". (emphasis added) 52 Mr Russell also argued that the fractured sternum the respondent suffered in the accident indicated its severity and would place such strains on her body as would generate the soft tissue injury in the neck diagnosed both by Doctor Spittaler and Doctor Ghabrial. He submitted that the primary judge: "… appears to have accepted the opinion of these two Doctors and that the neck injury was a major (if not the major) cause of the respondent's inability to work after the accident". (emphasis added) 53 Accordingly, Mr Russell argued it was not correct to assert that the primary judge appeared to prefer the appellant's medical evidence but, rather, that it "was quite apparent" that her Honour preferred the respondent's medical evidence, in particular that of Doctors Spittaler, Ghabrial and O'Keefe. 54 The respondent submitted that the primary judge's "finding" that there had "may well have" been an exacerbation of the depression and chronic fatigue suffered by the respondent prior to her accident indicated that she had rejected the views of Doctor Smith, the psychiatrist qualified by the appellant, to the effect that, at worst, the respondent experienced an adjustment disorder with depressed mood. 55 Mr Russell also criticised the appellant's argument that the primary judge had accepted Doctor Cummine's opinion concerning the respondent's prognosis. Rather, he submitted that although the primary judge had expressed "some sympathy" with Doctor Cummine's view, those views addressed the issue of the respondent's recovery rather than the doctor's diagnosis of injury. In this respect Mr Russell argued that Doctor Cummine's diagnosis of the respondent's injury was at odds with the findings of Doctors Spittaler, Ghabrial and O'Keefe who had diagnosed a C4/5 disc injury. He agued that the primary judge had "quite obviously" accepted those three doctors' views. He sought to reinforce that submission by reference to the matters to which her Honour referred when dealing with a costs application on 4 December 2003. 56 In oral argument, Mr Rewell submitted that the flaws in the primary judge's reasons were highlighted by the fact that both parties to the appeal contended that her Honour had preferred their medical evidence to the other party's.

Conclusion 57 In my view, there is force in the appellant's argument. 58 The primary judge summarised the evidence given by the respondent and her family as indicating "a person of some considerable disability … related solely to the consequences of the accident". She examined the documentary material tended by both parties to determine whether it supported that conclusion. 59 Her Honour reached two clear conclusions:

(1) that there was a considerable amount of understatement by the respondent and her family concerning her condition prior to the accident and a considerable amount of overstatement about her condition after the accident; (2) that she did not accept that the evidence established that the respondent had suffered the "considerable disability of which she now complains" as a result of the accident. 60 These conclusions indicated that her Honour had accepted the appellant's case. Other passages in the judgment also support the appellant's argument that the primary judge appeared to favour his case. I have underlined the relevant portions of her Honour's judgment in the preceding paragraphs. When dealing with the appellant's medical evidence she appeared to indicate she accepted it. Moreover, she appeared to contrast that evidence with conclusions which were unfavourable to the respondent. In contrast, her Honour recited the respondent's medical evidence without any indication that she accepted it. Indeed, as I have noted, she was critical of Doctor Kent's evidence in a manner which, on my reading, indicated that she rejected it. 61 Notwithstanding these matters, her Honour made an award of damages which could only be consistent, in my view, with acceptance of the respondent's case, that she had suffered a substantial injury the effect of which was likely to afflict her for the rest of her life. 62 A useful illustration of the gravamen of the appellant' s complaints can be seen in the manner in which the primary judge dealt with Doctor Cummine's evidence. Her Honour referred to his evidence immediately after expressing the conclusion that the plaintiff and her family had considerably understated her pre-accident condition and overstated her post-accident condition. She referred to the fact that the respondent had suffered a fractured sternum, that the accident involved an impact of considerable force "which would undoubtedly have placed strains on her body such as to generate soft tissue injury and perhaps symptomatology in a previously asymptomatic degenerative neck condition" and then said she had "some sympathy" with Doctor Cummine's views "that in ordinary circumstances the consequent symptoms of discomfort and disability ought gradually to have resolved". 63 As at least one of the respondent's principal complaints concerned her ongoing disability said to be related to her neck condition, the primary judge's expression of "some sympathy" for Doctor Cummine's views might, ordinarily, be understood to reflect her acceptance of his opinion. In this respect it is relevant to note that her Honour only extracted a portion of Doctor Cummine's opinion concerning the resolution of the respondent's symptoms. The full text of Doctor Cummine's opinion was as follows: "I consider in the subject accident she has sustained a fractured sternum and minor soft tissue injuries only to the neck, left shoulder and left upper arm. In the normal course of events I would have envisaged a gradual resolution of all such symptoms with no late complications or permanent impairment attributable to them. " (emphasis added) 64 The primary judge's apparent acceptance of Doctor Cummine's opinion that the respondent's symptoms would have "gradually resolved", indicates to my mind that she also accepted his view that there would be no permanent impairment. Her Honour appeared to accept Doctor Smith's opinion that the respondent "had presented with significant embellishment to her pain presentation". Doctor Smith had also concluded that the car accident had not produced a major depressive episode. If her Honour had, in fact, accepted both Doctor Cummine's and Doctor Smith's opinions, her conclusions on the issues of lost earning capacity and domestic assistance and, prima facie, on her assessment of non-economic loss at 30% of a most extreme case could not, in my view, be supported. 65 Her Honour was also critical of the absence of any report from Doctor Lamb dealing with the respondent's pre-accident and post-accident medical conditions. This was a particularly telling observation in the light of Doctor Lamb's letter written barely a week before the accident which was at least open to the interpretation that the respondent was suffering from both chronic fatigue syndrome and chronic depression at that time. She also criticised the respondent's failure to call evidence, or explain the absence of evidence, concerning what appears to have been pre-accident psychiatric treatment. Notwithstanding those criticisms, her Honour does not appear to have drawn an inference adverse to the respondent: cf Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 66 Finally, and regrettably, although her Honour had identified the issue in the case as being "the precise nature of the injuries and disabilities causally related to the accident and the extent to which those injuries aggravated medical conditions from which the respondent suffered at the time of the accident", there is no finding in her judgment which resolves that issue in favour of either party. 67 The respondent may well be correct in submitting that there was medical evidence which could support the primary judge's conclusions. The difficulty is that a substantial portion of the judgment was consistent with acceptance of the appellant's medical evidence which supported his case. At no stage did her Honour undertake a comparative exercise and determine which expert evidence she should prefer and for what reasons. She did not express any findings on medical issues in language of conclusion but, rather, in language of ambivalence: "generate … perhaps symptomatology"; "may well have aggravated". 68 The respondent is not assisted, in my view, by the remarks the primary judge made on 4 December 2003. Those statements do not accurately reflect the reasons her Honour had given the previous day. 69 The primary judge's duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the "parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other": Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed). 70 The primary judge's failure to analyse the competing medical evidence and make express findings as to which party's evidence she preferred, coupled with her apparent rejection of the respondent and her family as witnesses of credit in the circumstances of a large award of damages, raise real concerns as to whether she has properly considered the appellant's case. 71 In my view, the appellant has established that he has been left with a legitimate sense of injustice having regard to the inadequacy of the primary judge's reasons which has occasioned a substantial wrong or miscarriage of justice: Mifsud at 428; Dixon v Whisprun Pty Ltd at [74]. 72 It would not be appropriate for this Court to seek to reassess the damages. Clearly that exercise will depend substantially upon issues relating to the respondent's credibility. In such circumstances the appeal should be allowed and there should be a new trial limited to damages.

(2) Set aside the judgment of and orders made by her Honour Judge Sidis on 4 December 2003.

(3) Remit the matter to the District Court for reassessment of the respondent's damages.

(4) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

(5) Costs of the first trial are to be within the discretion of the judge conducting the new trial.

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