Baines v Liveris
[2002] WASCA 311
•22 NOVEMBER 2002
BAINES -v- LIVERIS [2002] WASCA 311
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 311 | |
| THE FULL COURT (WA) | 22/11/2002 | ||
| Case No: | FUL:157/2001 | 21 AUGUST 2002 | |
| Coram: | WALLWORK J MURRAY J ANDERSON J | 21/08/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order for retrial | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND ANTHONY BAINES CON LIVERIS |
Catchwords: | Damages Claim dismissed Whether sufficient findings of fact Whether damages could be assessed Decided on the facts |
Legislation: | Nil |
Case References: | Nil Carlson v King (1947) 64 WN (NSW) 65 Gamser v Nominal Defendant (1977) 136 CLR 145 Lloyd v Faraone [1989] WAR 154 Pettitt v Dunkley [1971] 1 NSWLR 376 Stojkovski v Fitzgerald [1989] WAR 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BAINES -v- LIVERIS [2002] WASCA 311 CORAM : WALLWORK J
- MURRAY J
ANDERSON J
- Appellant
AND
CON LIVERIS
Respondent
Catchwords:
Damages - Claim dismissed - Whether sufficient findings of fact - Whether damages could be assessed - Decided on the facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Order for retrial
Category: B
Representation:
Counsel:
Appellant : Mr G Droppert
Respondent : Mr J R Brooksby
Solicitors:
Appellant : Dwyer Durack
Respondent : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Carlson v King (1947) 64 WN (NSW) 65
Gamser v Nominal Defendant (1977) 136 CLR 145
Lloyd v Faraone [1989] WAR 154
Pettitt v Dunkley [1971] 1 NSWLR 376
Stojkovski v Fitzgerald [1989] WAR 328
(Page 3)
1 WALLWORK J: On 21 August 2002 this Court allowed an appeal against an order in the District Court which dismissed the appellant's claim for damages arising out of a motor vehicle accident on 21 February 1998. The Court ordered that there be a retrial before a different Judge. The following are my reasons for agreeing in those orders.
2 The matter came on in the District Court as an assessment of damages, liability having been admitted by the respondent. The appellant had pleaded that as a result of the blow to his back by a motor vehicle, he had suffered a soft tissue and ligamentous injury of the cervical and lumbar spine and bruising, and that those injuries had resulted in back soreness and stiffness, neck stiffness, left sided lumbar pain, and the development of severe depression and alcoholism.
3 In his defence the respondent had pleaded that the incident, when a vehicle driven by him had struck the appellant in the back was "of such a minor nature that the defendant was unaware that it had occurred and was unlikely to cause any or any significant injury to the plaintiff". He also pleaded that the injuries, loss and damage alleged in the statement of claim were not caused by the relevant incident but by another earlier incident on 12 February 1997.
4 In his evidence in chief the appellant told the learned Commissioner that he had been standing on a concrete path which was probably 10 or 12 feet wide within the bar precincts at the Ascot Racecourse, when a car had come from his left hand side. The front mudguard of the vehicle had struck the back of his legs and had arched his back backwards. He had then been hit by the retractable mirror and the mirror arm on the car. The appellant had told the learned Commissioner:
"The force of that knocked me into two chaps who were standing to my right. One was Des Taylor and the other was Johnnie Clift… It was a bloody hard knock because I don't particularly remember it, but it knocked the can of beer I was drinking out of my hand to start with and it was hard enough to - I reckon it would have sent me to this chap in front of us if they hadn't been there to catch me. About 10 feet, whatever."
- He said that the two men whom he had been knocked into, were probably about 3 or 4 feet from him.
(Page 4)
5 In cross-examination the appellant told the Commissioner that the front of the car did not hit him, it was the side of the car:
"It slid on the back of my legs, I've arched my back and I've gone backwards. That might be where that bloke thinks I've walked into him, actually, but I didn't do that either and it's - if I'd just hit that retractable mirror I wouldn't have had any problem whatsoever but it's hit me along the side of the car and it's hit me so hard I would have ended up where this chap was sitting if they weren't there to stop me being caught."
6 At the hearing of the appeal this Court was told that Mr Clift:
"seeking, I think to respond to the proposition that it was a mere stumble, gave the analogy of someone being struck heavily in a football match, for example."
7 A doctor who examined the appellant two days after the accident said in a certificate, which was admitted into evidence by consent, that he had found the appellant to have a muscle strain injury of the neck together with a bruised and strained left lower back. The doctor said that this was the result of an accident at the races on 21 February 1998.
8 On 1 July 1998 the doctor's partner prepared a further certificate which was put into evidence by consent, in which it was said that on 23 February 1998:
"He stated he was bruised and strained on the left iliac crest region and the left lumbar area. He was also stiff and complaining of a painful neck. The examination findings were consistent with muscle bruising to the left iliac and lumbar regions and neck (trapezius muscle strain). When next examined on 3 March 1998 he complained of soreness over the left iliac crest and mid lumbar region. Examination showed a good range of back movement with flexion to mid chin and a good range of extension. Neck movements were full, but he complained of stiffness. He has been seen on 25 March 1998, 28 April 1998, 10 June 1998 and 19 June 1998. On 10 June 1998 he felt his neck had improved. But he was concerned about low back and middle back pain when he commences heavy manual work."
9 The evidence was that the appellant had continued to work but had had physiotherapy and some other treatment. He had said that eventually
(Page 5)
- his condition had deteriorated to the extent that on one day he just could not go to work.
10 In his reasons for judgment, the learned Commissioner related much of the medical evidence. Towards the end of his reasons he stated that the appellant had continued to work full time after his accident in February 1998. The learned Commissioner found that that was wholly inconsistent with the appellant's claim that the 1998 accident had caused or materially contributed to his low back pain. He said:
"I do not accept the evidence of the plaintiff that his low back pain began after February 1998. I reach this opinion notwithstanding the evidence of Ms Pontifex that the plaintiff began to complain regularly of low back pain after February 1998. There is, therefore, no evidence which should lead the Court to find a causal rather than a merely temporal connection between the accident on 21 February 1998 and the plaintiff's back pain."
11 The learned Commissioner accepted the evidence of Dr Rosenthal who had seen the appellant approximately 12 months after the accident, that earlier in 1997 the appellant had sustained an injury to his lower lumbar discs. He commented that the evidence relating to the circumstances of the collision between the respondent's vehicle and the appellant led him to the same conclusion as Dr Rosenthal, that the force with which the appellant was struck was not likely to produce the disability of which the plaintiff complains.
12 Having concluded that the cause of the appellant's symptoms was most likely muscular pain and not related to the 1998 accident, the learned Commissioner found that the appellant had failed to discharge the onus on him in relation to the issue of causation and that his claim must fail. He dismissed the appellant's claim for damages.
The Appeal
13 The thrust of the appeal was that the learned Commissioner had failed to make any findings concerning the nature of the injury which had been suffered by the appellant at the time he was struck by the motor vehicle. Findings were also not made concerning the events immediately following the incident during which the appellant had been treated for the injuries which he had undoubtedly received at the time of the collision. The two medical reports to which I have already referred had been put in
(Page 6)
- by consent. The learned Commissioner made no findings as to what expenses arising from those injuries should be paid by the respondent. He did not attempt to assess general damages arising from those injuries.
14 This Court was informed that the medical evidence on which the learned Commissioner relied had come from Dr Rosenthal and Mr Edibam. Dr Rosenthal was said not to have seen the appellant until approximately 12 months after the accident. Mr Edibam was said to have had first seen the appellant approximately 2½ years after the accident. Dr Rosenthal had not said that at no time did the appellant suffer a soft tissue injury; neither did Mr Edibam. There was no evidence at the trial that there had been no injury suffered by the appellant. The learned Commissioner did not find that there had been no injury.
15 It was submitted for the appellant that on the evidence the appellant had had medical treatment after the accident; that there was no finding that there either was or was not an injury suffered at the time. The evidence from the appellant had been that he had continued to work and had declined to seek compensation for a period of over two years. He had undergone physiotherapy and injections to his lower back. He had undertaken swimming programmes. Some expenses had been paid by the respondent's insurer.
16 The learned Commissioner did not find precisely what the nature of the impact was. Counsel for the respondent rightly conceded:
"… as it emerged, I don't think there was any dispute between the parties, that we are dealing with a car driving past and hitting him with a rear view mirror. There was some argument as to whether the vehicle had struck the back of his legs before the mirror reached his left buttock if you like, but that was really the case was presented …"
- There was evidence at the trial that the height of the mirror was at the point where the bruising was.
17 In my view the pleaded defence "that the defendant was unaware that it [the accident] had occurred and that it was unlikely to cause any or any significant injury to the plaintiff" could not have been upheld. The evidence was all the other way. In all the circumstances this is not the sort of case where this Court could assess damages. It is not in a position to make the necessary findings of fact from which the damages would flow.
(Page 7)
18 It was for the above reasons that I agreed with the order to allow the appeal and send the matter back for retrial.
19 MURRAY J: I have read the reasons for decision of Wallwork J. They express sufficiently for me the reasons why I joined in the orders made on 21 August. There is nothing I need to add.
20 ANDERSON J: My reasons for joining in the decision to allow this appeal and remit the case for rehearing are sufficiently stated in the reasons of Wallwork J. There is nothing I wish to add to those reasons.
0
1
1