Adsett v Noosa Nursing Home Pty Ltd - [1996] QCA 491

IN THE COURT OF APPEAL	[1996] QCA 491
SUPREME COURT OF QUEENSLAND

Appeal No. 223 of 1995.

Brisbane

[Adsett v. Noosa Nursing Home P/L]

BETWEEN:

SHIRALEE MAY ADSETT

(Plaintiff) Appellant

AND:

NOOSA NURSING HOME PTY LTD
ACN 009 991 020

(Defendant) Respondent

___________________________________________________________________

McPherson J.A.
Pincus J.A.
Shepherdson J.

___________________________________________________________________________

Judgment delivered 6 December 1996

Separate Reasons for Judgment of each member of the Court, all concurring as to the order made

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS
___________________________________________________________________________

CATCHWORDS: Personal Injury - quantum - whether irrational refusal to undergo treatment - extent of injury - conflicting video evidence - exaggeration of symptoms - ability to undertake future employment.

Counsel:	Mr R Douglas QC, with him Mr J McDougall for the appellant. Mr M Grant-Taylor for the respondent.
Solicitors:	Ebsworth and Ebsworth for the appellant. O’Shea Corser and Wadley for the respondent.
Hearing date:	10 April 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 223 of 1995.

Brisbane

Before McPherson J.A.

Pincus J.A.
Shepherdson J.

[Adsett v. Noosa Nursing Home P/L]

BETWEEN:

SHIRALEE MAY ADSETT

(Plaintiff) Appellant

AND:

NOOSA NURSING HOME PTY LTD
ACN 009 991 020

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 December 1996

The appellant sued for and recovered damages in the Supreme Court in respect of injuries she

suffered in May 1991, in the course of her employment at the respondent’s nursing home at Tewantin.

The judge assessed damages at $154,522 and after deduction of the Workers’ Compensation refund,

judgment was given in the sum of $98,979.27. Three components of the judge’s assessment were pain

and suffering, past economic loss and loss of earning capacity; the appellant challenges the amount

awarded under each of these headings as being inadequate and also says that the total is substantially

less than the sum which should properly have been awarded.

The nature of the injuries which the appellant sustained was of a kind which is notoriously
difficult to assess, for medical practitioners as well as judges; she sustained a soft tissue injury in the

region of her spine. Such injuries often heal well enough in time, with or without treatment, and it is

evident that a cause of the appellant’s injuries not having settled has been the possibility of obtaining

compensation. But the judge found, and there is no reason to question the accuracy of the finding, that

the appellant was not malingering; insofar as her complaints of pain and discomfort were exaggerated,

that did not constitute deliberate misrepresentation.

The judge took the view and (with respect) plainly correctly, that there was a substantial

psychogenic element in the appellant’s condition. Added to the difficulty just mentioned - that in

substantial part the appellant’s problems were psychogenic - was the fact that video recordings of the

appellant’s activities showed her as being capable of doing substantially more than what some medical

practitioners had been given to understand she could do. The judge clearly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] QCA 491
Decision Date: 6/12/1996

CaseChat Overview and Summary

This appeal is against a damages assessment in an action for personal injuries sustained in May 1991, in the course of the plaintiff's employment at the defendant's nursing home. The plaintiff claimed damages for pain and suffering, past economic loss and loss of earning capacity. The trial judge found in her favour and awarded damages of $98,979.27. The plaintiff appealed against the amount awarded, contending that the damages awarded were inadequate. The appeal was dismissed with costs. The plaintiff's injuries were soft tissue injuries to her spine, which often heal well enough in time, with or without treatment. The trial judge found, and there is no reason to question the accuracy of the finding, that the plaintiff was not malingering; insofar as her complaints of pain and discomfort were exaggerated, that did not constitute deliberate misrepresentation. The trial judge took the view and (with respect) plainly correctly, that there was a substantial psychogenic element in the plaintiff’s condition. Added to the difficulty just mentioned - that in substantial part the plaintiff’s problems were psychogenic - was the fact that video recordings of the plaintiff’s activities showed her as being capable of doing substantially more than what some medical practitioners had been given to understand she could do. The trial judge clearly considered these two elements of the case with care and in detail. Where there is such a substantial subjective element in the complaints made and little to show clinically, much must depend on the trial judge's assessment of the plaintiff’s motivation and personality; in cases of this sort, it is in my opinion particularly difficult for an appellate court to attain a state of satisfaction that the primary judge has wrongly assessed the damages, unless there are specific material errors of fact shown, or the judge has made findings for which the evidence provides no reasonable foundation. The trial judge’s total assessment of damages has not been shown to be insufficient, on the findings her Honour made. It is true that, taking the psychological component of the plaintiff’s difficulties into account, her total state appeared to be fairly wretched at the time of trial; but the trial judge’s approach, which was in essence to treat the plaintiff’s complaints rather sceptically, and make what could be described as a conservative award, was one which was well open, on the evidence.

Orders