Bobanovic v Incandela
[2015] ACTCA 63
•18 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Bobanovic v Incandela |
Citation: | [2015] ACTCA 63 |
Hearing Date(s): | 12 February 2015 |
DecisionDate: | 18 December 2015 |
Before: | Murrell CJ, Burns and Katzmann JJ |
Decision: | The appeal is dismissed with costs. The cross-appeal is dismissed with costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeal Against Liability – whether the primary judge erred in finding a fortuitous accident occurred as alleged – whether the primary judge failed to take into account the plaintiff’s credit – whether the primary judge failed to consider circumstances surrounding the plaintiff’s report of the accident to police – whether the primary judge failed to take into account the plaintiff’s criminal history – whether there was sufficient evidence to establish a causal link between the collision and the plaintiff’s injuries APPEAL – Cross-appeal Against Damages – whether the sums awarded for general damages, future economic loss and future earning capacity were inadequate TORTS – Negligence – road accident cases DAMAGES – Measure and Remoteness of Damages in Actions for Tort |
Cases Cited: | Australian Capital Territory v Crowley (2012) 273 FLR 370 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 Zoneff v The Queen (2000) 200 CLR 234 |
Parties: | Bozo Bobanovic (Appellant) Peter Incandela (Respondent) |
Representation: | Counsel Mr G Watson SC with Ms V Heath (Appellant) Mr D Campbell SC with Mr I Bradfield (Respondent) |
| Solicitors Moray & Agnew (Appellant) Porters Lawyers (Respondent) | |
File Number(s): | ACTCA 83 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Higgins CJ Date of Decision: 21 October 2013 Case Title: Incandela v Bobanovic Citation: [2013] ACTSC 213 Court File Number(s): SC 362 of 2007 |
MURRELL CJ AND BURNS J:
Procedural history
In the proceedings below, Peter Incandela, who for convenience we will refer to as the plaintiff, claimed damages for personal injury arising out of a motor vehicle collision said to have occurred at about 2 pm on 2 March 2006. The defendant was the registered owner of the other vehicle said to have been involved in the collision, although that vehicle was said to have been stolen, and was being driven at the time of the collision, by an unknown person.
The plaintiff asserted that he was driving a Daihatsu Terios motor vehicle in a southerly direction on the Barton Highway near Hall in the ACT. He turned right at the intersection with Wallaroo Road. As he was turning, another vehicle, being a Ford Falcon registered in the name of the defendant, was travelling in a northerly direction on the Barton Highway and turning left into Wallaroo Road. The defendant’s Ford Falcon vehicle failed to give way to the plaintiff as it exited the slip lane onto Wallaroo Road, resulting in a collision between the two vehicles. The plaintiff asserted that he suffered an injury to his cervical spine necessitating two surgical procedures.
The defendant defended the proceedings below on the basis that:
(a)there was no genuine accident, and any collision between the vehicles was staged with a view to providing circumstances for the plaintiff to make a claim for damages;
(b)in the alternative, if there was a genuine accident, the plaintiff had not suffered any injury; and
(c)in any event, the plaintiff had manufactured or exaggerated his injuries, disabilities and the consequential damage claim for the purpose of acquiring damages to which he was not entitled.
The hearing of the plaintiff’s claim occupied 17 hearing days between February and August 2013. On 21 October 2013, the primary judge entered judgment in favour of the plaintiff in the sum of $222,500.00, with costs.
The defendant appealed from the judgment of the primary judge. A number of grounds of appeal initially pleaded by the defendant were abandoned or not pressed at the hearing of the appeal, so that the grounds of appeal ultimately pursued by the defendant were:
(a) His Honour wrongly found a fortuitous accident occurred as alleged.
(b)His Honour should have found the acceptable evidence that the accident occurred as alleged never rose above competing possibilities.
(c)His Honour wrongly quarantined evidence and findings material to determining whether an accident occurred as alleged from his Honour’s weighing of the circumstantial evidence.
(d)His Honour wrongly treated the evidence of Dr Rechnitzer as evidence of a matter assumed (that a collision happened in the place alleged).
(e) [Ground not pressed at hearing]
(f)His Honour failed to draw inferences and make conclusions favourable to the defendant following from his Honour’s findings of fact.
(g)His Honour drew inferences and conclusions favourable to the plaintiff which did not follow from, or were inconsistent with, his Honour’s findings of fact.
(h) His Honour, implicitly, reversed the onus of proof.
The plaintiff lodged a cross-appeal against the damages assessed by the primary judge on the grounds that his Honour erred in his assessment of:
(i)Past economic loss.
(ii)Future economic loss.
(iii)Future medical expenses.
(iv)Future care.
(v)General damages.
The primary judge’s findings
In his written submissions on this appeal, the defendant accepted the “intermediate findings of fact” and the credit findings made by the primary judge, but submitted that his Honour’s conclusions based on those findings were not open to him or were affected by material error. The defendant invited this Court, based on the intermediate findings of fact made by the primary judge, to reach the opposite conclusion on liability reached by the primary judge.
In finding that a collision occurred as alleged by the plaintiff, the primary judge made the following findings of fact:
(a)the defendant’s Ford Falcon motor vehicle was stolen from a car park in Reid on 2 March 2006 and sometime before 3.40 pm that day;
(b)prior to being stolen, the Ford Falcon was undamaged;
(c)prior to March 2006, the plaintiff’s Daihatsu Terios had only slight damage to the passenger side rear;
(d)the defendant’s Ford Falcon was observed being driven erratically in the Hall area during the afternoon of 2 March 2006;
(e)when it was being so driven, it was seen to have major front end damage;
(f)the person driving the Ford Falcon was male, in his late 40s, with shaggy brown hair to the shoulders and “dirty looking”;
(g)the Terios was white in colour and the Ford Falcon was blue;
(h)subsequent photographs of the vehicles showed some blue paint in the damaged area of the Terios and white paint on the damaged front portion of the Ford Falcon;
(i)there was damage to a guard rail adjacent to the position where the plaintiff said the collision occurred, consistent with the plaintiff’s evidence that his vehicle had collided with the guard rail after the collision between the two vehicles;
(j)some debris was observed on Wallaroo Road near the intersection with the Barton Highway, consistent with the alleged collision; and
(k)there was no suggestion of any collusion between the plaintiff and the car thief.
Expert evidence was led before the primary judge. Two reports of traffic engineers, Dr George Rechnitzer for the plaintiff and Mr William Keramides for the defendant, were referred to by the primary judge, who considered that there was little difference between their opinions. On those matters where there was an apparent difference between the evidence of the experts, the primary judge preferred the evidence of Dr Rechnitzer. The points of disagreement between the experts, being the relative velocities of the two vehicles and the angle of impact, are not, in our opinion, particularly important. The expert evidence was largely based on assumptions about the position and movement of the vehicles in the period surrounding the collision that can be no more than speculation. The limitations of this evidence were recognised in the written submissions of the defendant:
Given the very limited material with which the experts had to work (digital photographs, some limited witness evidence of observations of the scene and site inspections many years after the event), his Honour was justifiably sceptical as to the contribution that could be made by such evidence.
The primary judge accepted that the collision occurred on Wallaroo Road, near the intersection with the Barton Highway, when the defendant’s vehicle failed to give way to the plaintiff’s vehicle as he turned right from the Barton Highway into Wallaroo Road. The primary judge considered it likely that the Ford Falcon was travelling faster than the Terios at the time of the collision, and that the collision “rocked” the Terios momentarily onto two wheels. He accepted that the Terios then lightly impacted the guard rail before the Ford Falcon left the scene of the collision. The Ford Falcon was later observed driving erratically and in a damaged state. In concluding that the collision occurred in this way, the primary judge said that he placed no reliance on the plaintiff’s account of events.
The nature of the present appeal
The principles governing these appeals are well settled, and were stated by this Court in the Australian Capital Territory v Crowley (2012) 273 FLR 370 at [5]:
The right of appeal is conferred by Part 2A of the Supreme Court Act 1933 (ACT)… It is an appeal in the nature of a rehearing (Huen v Hyland [2004] ACTCA 5 at [54]), albeit that error must still be shown: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424 at [21] – [30]. On such an appeal the Court is required to conduct “a real review of the trial” and (sic) the judge’s reasons and give “the judgment which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 [23].
In Fox v Percy (2003) 214 CLR 118, the majority (Gleeson CJ, Gummow and Kirby JJ) said at [22]–[23] concerning appeals by way of rehearing:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits...
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other hand, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted)
In the instant case, no fresh evidence was received by this Court. Indeed, the defendant was content to adopt the intermediate findings made by the primary judge, but submitted that, based on those findings, the primary judge should have entered judgment for the defendant.
Consideration – the appeal against liability
The defendant submitted that the primary judge failed to consider certain matters raised by the evidence in deciding that there had been a fortuitous collision between the vehicles as alleged by the plaintiff, namely:
(a)the plaintiff’s credit;
(b)the fact that the plaintiff had a financial motive to stage an accident;
(c)the evidence given by the plaintiff as to his reporting of the accident to police; and
(d)the plaintiff’s bad character.
The defendant also submitted that there was not sufficient evidence to establish a causal link between the collision and the plaintiff’s alleged injuries and ongoing incapacities.
The plaintiff’s credit
There can be no doubt that the plaintiff was an unsatisfactory witness. It is not necessary to set out here the details of the evidence based upon which the primary judge rejected the plaintiff’s credibility, but we simply note that the primary judge was satisfied that the plaintiff lied about being unable to work after the collision, exaggerated his symptoms and sought to deceive friends, acquaintances, doctors and his own lawyers over the years with misrepresentations of his activities and capacity for work. All of this was for the purpose of dishonestly inflating his claim. We note that none of the primary judge’s findings on credit were challenged by the plaintiff in this appeal.
It is, however, wrong to suggest that the primary judge failed to take into account the plaintiff’s credit when considering whether a collision had occurred. It is true that the structure of the primary judge’s reasons is such that he considered most of the issues concerning the plaintiff’s credit in that portion of his reasons dealing with damages, but it would be wrong to say that the primary judge “quarantined” his findings on credit to the issue of damages. The clear finding of the primary judge that the plaintiff was not a reliable or truthful witness also influenced his approach to the question of liability. This is apparent from the primary judge’s statement that he placed no reliance on the plaintiff’s evidence in determining that the collision had occurred. This statement is inexplicable if it is not based upon the primary judge’s assessment of the plaintiff’s credibility as set out in that part of his reasons concerning damages.
It was suggested by the defendant that, in rejecting the evidence of the plaintiff as he did, the primary judge could not find that a collision had occurred, as the only evidence of such a collision came from the plaintiff. This is a misconception of the approach taken by the primary judge. It is trite that a tribunal of fact may accept part of the evidence of a witness whilst rejecting other parts of the evidence of the same witness. The approach taken by the primary judge was that he did not accept the evidence of the plaintiff except where he was satisfied that the plaintiff’s evidence was supported by credible independent evidence. That this was his approach is supported by his Honour’s comment at [184] to the effect that he accepted inferences supporting the plaintiff’s case only to the extent that they were “independently verified” by evidence other than that of the plaintiff or of Ms Trimboli, who owned the property in which the plaintiff was residing at the time of the collision. This, with respect, was both sensible and appropriate. This ground of appeal fails.
The fact that the plaintiff had a financial motive to stage the accident
The defendant next submitted that the primary judge failed to take into account in determining whether there had been a collision evidence of the plaintiff’s motives for making a false claim for damages. There can be no doubt that the evidence established that the plaintiff had financial motives for making a false claim for damages. There was evidence that the plaintiff’s major source of income, a government mowing contract, would not be renewed and that he had little work available to him after December 2005. The plaintiff had also insured himself for $2,000.00 per week for a period of two years in disability insurance, although it is unclear when the policy commenced. The amount the plaintiff was entitled to receive under this policy, upon him being unable to work due to disability, was considerably greater than his income at the time of the collision. The defendant’s suggestion, as we understand it, is that the existence of this insurance policy was a motive for the plaintiff to invent a collision in which he alleged he sustained disabling injuries.
The potential for financial reward inherent in any claim for damages for personal injury means that all plaintiffs may be said to have a motive to lie in support of their claim. The plaintiff clearly had such a motive. The potential for financial gain through a claim on the disability insurance policy was also a potential motive for him to lie. The primary judge was aware of these issues and referred to them in the course of his reasons, although, as with other credibility issues, this was mainly in the context of the assessment of damages.
Proof of motive to concoct a case is not proof that the case is concocted, although it is a circumstance relevant to assessing whether the evidence establishes that the case is concocted. That motive will exist in most, if not all, claims for damages. The primary judge accepted that the plaintiff had a motive to lie about his claim and in fact was satisfied that he had lied in order to attempt to achieve greater damages. The primary judge took this into account in rejecting the evidence of the plaintiff on liability except where it was supported by credible independent evidence. It was the presence of independent evidence that led the primary judge to conclude that a collision had occurred between the two vehicles on Wallaroo Road near the intersection with the Barton Highway. The plaintiff’s motive to lie concerning the collision could not affect that independent evidence.
The evidence given by the plaintiff as to his reporting of the accident to police
The defendant then submitted that the primary judge had failed to consider the circumstances surrounding the plaintiff’s report of the accident to police, and in particular was wrong to consider that it had not been suggested that there was any collusion between the car thief and the plaintiff. The defendant pointed to the Amended Defence which, inter alia, pleaded that the plaintiff had knowledge of the theft of the defendant’s vehicle at a time before he could properly have had that information unless he had foreknowledge of the theft. The basis for this allegation was evidence given by the plaintiff that he attended Gungahlin Police Station on the evening of 2 March 2006, before he attended Calvary Hospital, and reported the accident. Hospital records show that the plaintiff attended Calvary Hospital at 6.19 pm on 2 March 2006, meaning that it must have been before that time, on his version of events, that he reported the collision to police at Gungahlin. As proof of his version of these events, the plaintiff tendered an AFP card which he said he was given when he reported the collision. The card, however, contains a job number which was not generated and allocated to the stolen Ford Falcon until about 6.45 pm on 2 March 2006, after the stolen vehicle had been located by police near Hall cemetery. This was, of course, after the plaintiff had presented at Calvary Hospital.
It may be accepted that the presence of the job number on the AFP card tendered by the plaintiff means that the plaintiff did not report the collision until after 6.45 pm on 2 March 2006. On the evidence, it would seem probable that the report was not made, and the card not obtained by the plaintiff, until after 2 March 2006. This is not, however, evidence that the plaintiff had some form of foreknowledge of the theft of the defendant’s vehicle, implicating him in its theft. The evidence establishes that the plaintiff’s version of attending Gungahlin Police Station and attaining the AFP card on 2 March 2006 before he attended Calvary Hospital is unreliable. The proposition that the plaintiff was involved in the theft of the defendant’s vehicle, or was possessed of knowledge of the theft that implicated him in the theft, is, however, without any foundation in the evidence. The primary judge, with respect, rightly rejected the proposition that the plaintiff was involved in the theft, or had knowledge of it.
It was further suggested that the plaintiff had delayed reporting the collision to police in order to forestall any police investigation of the collision. To the extent that the defendant relies upon the deliberate decision of the plaintiff to delay reporting the collision as relevant to the credit of the plaintiff, the primary judge took that into account in determining that he could not rely upon the plaintiff as a reliable or truthful witness. Aside any motive the plaintiff may or may not have had in delaying his report of the collision to the police, we also note that it is pure speculation to suggest that police would have undertaken different investigations if the collision had been brought to their attention on the afternoon or evening of 2 March 2006. The collision was a relatively minor one and it is doubtful whether police would have regarded the collision as more serious than the theft of the motor vehicle. There is simply no evidence that police would have approached their investigation of this matter any differently had they been advised of the alleged collision on 2 March 2006.
Another circumstance which the defendant relied upon as suggesting some form of collusion between the driver of the stolen Ford Falcon and the plaintiff was the evidence of the independent witnesses who observed the Ford Falcon being driven in the Hall area on 2 March 2006. The defendant submitted that the evidence established that the stolen Ford Falcon had been seen driving on Wallaroo Road, or the connected Gooromon Ponds Road, over a period of three hours on the afternoon of 2 March 2006. The defendant submitted that this was odd behaviour, calculated to draw attention to the vehicle. This, the defendant submitted, suggested a staged collision. The primary judge found at [8] that an independent witness had seen the Ford Falcon being driven on Gooromon Ponds Road at about 4.10 pm on 2 March 2006. Another independent witness saw the vehicle at about the same time being driven in the area of Wallaroo Road: [7]. It was later seen between 5 pm and 5.30 pm by this same witness parked and abandoned outside the Hall cemetery, where it was subsequently located by police at about 6.45 pm. This evidence only supports the finding that the stolen Ford Falcon was seen being driven at about 4.10 pm and then again at 4.50 pm, and not over a period of three hours as suggested by the defendant.
It appears to have been assumed by the parties that the driver of the vehicle on these occasions was the thief, which may well be a safe assumption. The description of the driver was similar on each occasion. It has not been suggested that the description of the driver was consistent with the appearance of the plaintiff at that time. In our opinion, the inference which the defendant seeks to draw from this material is quite tenuous. It may safely be assumed that, if there were some collusion between the plaintiff and the thief, the plaintiff would not want to risk the fact of that collusion being revealed. The risk of any collusion being revealed would become most acute if the thief were apprehended by police. It is this risk which the defendant submits we should infer the plaintiff was willing to take for the dubious advantage of having third parties observe the vehicle driving erratically in the area. Such a risk was clearly unnecessary. If there was collusion between the plaintiff and the thief, the plaintiff would have known when the stolen vehicle had been abandoned by the thief. He could then have simply reported the matter to police in the knowledge that the vehicle would be found abandoned, with no trace of the thief. He could then have attended hospital and complained of injuries. The fact that the evidence establishes that the plaintiff did not attend on police to report the accident until after his attendance at Calvary Hospital on the night of 2 March 2006, and most likely not until at least 3 March 2006, strongly supports the proposition that there was no collusion between the plaintiff and the thief. The primary judge was correct, with respect, to reject this proposition.
The plaintiff’s bad character
The final matter which the defendant says the primary judge failed to take into account in determining the question of liability was the plaintiff’s criminal history. In the course of oral argument on the appeal, the defendant resiled from the submission that the plaintiff’s criminal history was relevant and should have been considered by the primary judge.
Implied admission of guilt
The defendant also complained that the primary judge had not made a finding that the plaintiff, in failing to report the accident to police immediately, giving false evidence and procuring others to give evidence which he knew to be false, “betrayed an implied admission of some guilty mind in respect of the collision or his role in it or as to whether his version of events was entitled to be believed that was inconsistent with the acceptance of his claim of negligence is genuine”. In support of this submission, the defendant referred us to the decision in Kuhl v Zürich Financial Services Australia Ltd (2011) 243 CLR 361 at [64], where the majority (Heydon, Crennan and Bell JJ) said:
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been an adverse to the party, but that it would not have assisted the party. But the conclusion by the trial judge that the plaintiff – a party-witness – deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness’s duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness’s evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.
(Citations omitted)
It is apparent from the above that the majority of the High Court in Kuhl was not purporting to lay down a rule that, in every case where a party-witness lies, withholds evidence, or calls evidence which he or she knows to be false or misleading, it must be inferred that this conduct constitutes an admission against interest. It is clear from the paragraphs following upon that quoted above that the majority perceived the trial judge in that case as having determined that an alleged reluctance on the part of the plaintiff to say precisely what had happened when he was injured constituted “a kind of admission”, and their comments must be approached in this context.
No bright line may be drawn between those cases where lies or other such conduct by a party will constitute an admission and those where such conduct is only relevant to credibility: Zoneff v The Queen (2000) 200 CLR 234 at [15]. In the present case, the primary judge considered the plaintiff’s lies and other conduct as relevant to credibility only. He was, with respect, correct to do so. In his written submissions, the defendant was unable to articulate the nature of the admission said to flow from the plaintiff’s conduct, save only that it implied “some guilty mind” on the part of the plaintiff. As the defendant himself said, such a “guilty mind” may be held for a number of reasons, including a belief that the plaintiff may have been guilty of contributory negligence. Other alternative reasons may no doubt be hypothesised, including an intention to dishonestly inflate his claimed injuries after a fortuitous collision. In the circumstances of this particular case, it is difficult to accept that the dishonesty of the plaintiff identified by the primary judge could be said to constitute an implied admission that the collision had not occurred or had been staged.
These principles most commonly find application in criminal cases, but they are not so restricted. In Tobin v Ezekiel (2011) 83 NSWLR 757, the New South Wales Court of Appeal (Basten, Campbell and Meagher JJA) considered the effect of a lie by a witness in a civil case. In the leading judgment, Meagher JA (with whom Basten and Campbell JJA agreed) said, at [60]:
Whilst the fact that a witness has lied about some matter does not prove the opposite of the lie, the fact of the lie may indicate a consciousness that the truth in respect of that matter would not have assisted his or her case. Depending upon the subject matter of false or fabricated evidence and its significance in a case, such an inference may be available in relation to a specific fact: see JH Wigmore, Wigmore on Evidence, 3rd ed (1940), vol 2, Boston, Little Brown and Co at 120-122 [278]; Moriarty v London, Chatham, and Dover Railway Co (1870) LR 5 QB 314 at 318-319 citing Annesley v Earl of Anglesea (1743) 17 How St Tr 1139; Rex v Watt (1905) 20 Cox CC 852 at 853; Eade v The King (1924) 34 CLR 154 at 158; Steinberg v Commissioner of Taxation of the Commonwealth of Australia (1975) 143 CLR 640 at 694; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 564; Kuhl v Zurich Financial Service at [64]. The fact of a lie may also constitute an admission of criminal guilt or evidence which is corroborative of other evidence: see Edwards v The Queen (1993) 178 CLR 193 at 208-209, 214-215; Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
Before we move on from this point, the defendant, in the proceedings before the primary judge, advanced a positive case that the evidence was more consistent with a staged collision than a fortuitous one. In the course of the proceedings before this Court of Appeal, this gave rise to some debate about the onus of proof. The defendant submitted that the primary judge had approached this issue as if there was an onus on the defendant to prove that there was a staged collision. Such an approach, if it was adopted by the primary judge, would not accord with previous authority: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Nominal Defendant v Hekeik, Youssef, Younan [1999] NSWCA 376. We are satisfied that the primary judge did not adopt this approach. It was unnecessary for the defendant to advance a positive defence to the plaintiff’s claim, but, having done so, he assumed no legal burden of proof. It is clear that the primary judge did not accept the submission that the evidence was more consistent with a staged accident. He found that the evidence was more consistent with a fortuitous accident. This latter finding necessarily encompasses a finding that he was not satisfied that there had been a staged accident. The primary judge recognised that, even if the staged accident scenario was rejected, the onus still rested with the plaintiff to prove that there had been a collision, and a collision which rendered the defendant liable.
Senior counsel for the plaintiff submitted in these proceedings that the trial before the primary judge had not been conducted by the defendant on the basis that there had been no collision, simply that there had been a staged collision. This does not appear to be consistent with the way the primary judge approached the question of liability. The first issue addressed by the primary judge in his reasons was whether the evidence established that there had been “an accident”. It is clear from his reasons that the reference to “an accident” is a reference to a collision. The primary judge considered the evidence and was satisfied it was more consistent with a fortuitous collision than any other cause. The primary judge did not reverse the onus of proof.
Causation
The defendant submitted that the primary judge had erred in concluding that the plaintiff suffered a cervical injury in the collision. The defendant submitted that the evidence was insufficient to establish a causal link between the accident and the plaintiff’s cervical condition. Alternatively, the defendant submitted that there was insufficient evidence to establish a causal relationship between the collision and the plaintiff’s second spinal fusion (at the C6/7 level).
The primary judge concluded that the accident caused injury to the plaintiff’s cervical spine, including compression of the spinal cord at the C5/6 level. Further, the primary judge found that the cervical injury resulted in the need for spinal fusion procedures, first at the C5/6 level and later at the C6/7 level.
The primary judge’s reasoning on the issue of whether the accident caused cervical injury was opaque, and was flawed in at least one respect.
His Honour erred in stating at [49] that, when the plaintiff attended Calvary Hospital on 2 March 2006 “he was apparently in great pain, sufficient to be prescribed two doses of morphine”. The plaintiff was not prescribed morphine on 2 March 2006. It was during an earlier attendance at Calvary Hospital (on 27 June 2005, in relation to right shoulder pain) that the plaintiff was prescribed two doses of morphine.
However, that factual error was not important. There was no dispute that the plaintiff attended Calvary Hospital soon after the accident and there were relevant findings on examination (tenderness in the mid cervical area, and paraesthesia to the left arm and fingers, referred from the cervical spine).
In his reasons, the primary judge did not refer to the plaintiff’s failure to provide a complete medical history to the practitioners who treated him (and reported on his behalf) and did not consider the possibility that the failure had infected the opinions of those doctors. The plaintiff informed neither his general practitioner, Dr Watson, nor his treating neurosurgeon, Dr Fuller, that he had attended Yass Hospital in September 2004 following an alleged assault. On that occasion, an x-ray revealed cervical osteoarthritis. Nor did the plaintiff inform the doctors that he had attended Calvary Hospital in February 2005 in relation to right neck pain. The x-ray undertaken on that occasion also revealed widespread cervical osteoarthritis.
Although the plaintiff did not disclose these matters to his treating doctors, from 10 April 2006 (when Dr Pierce reported that the MRI showed widespread degeneration in the plaintiff’s cervical spine) the plaintiff’s treating doctors must have known that the plaintiff suffered from pre-existing and widespread cervical degeneration. Consequently, while the plaintiff’s failure to disclose these matters may reflect adversely on the plaintiff himself, it does not mean that the plaintiff’s treating doctors lacked significant background information; they knew that the plaintiff suffered from pre-existing and widespread cervical osteoarthritis.
Unfortunately, the primary judge did not explain how he reasoned to the conclusion that it was the motor vehicle accident rather than the pre-existing cervical condition that gave rise to the need for two cervical spinal fusion procedures.
Nevertheless, the evidence did support that conclusion.
Dr Pierce’s report of 10 April 2006 referred to cord compression and myelomalacia at the C5/6 level. On 20 April 2006 Dr Fuller reported that there were symptoms suggestive of myelopathy, and on 25 October 2006 he reported that the area of myelomalacia at C5/6 had increased in prominence since the earlier MRI. Presumably, the reason that Dr Fuller referred to myelomalacia at C5/6 and noted that it had gained slightly increased prominence by October 2006 was because he considered those matters to be significant. Regrettably, in his reports he did not elaborate on why they were significant.
The relevance of the MRI findings of myelomalacia was not elucidated until Dr Ruttenberg (who provided medicolegal reports for the defendant) gave evidence. Dr Ruttenberg said that the findings of Dr Fuller and the MRI scans taken prior to the first fusion surgery (at the C5/6 level) were consistent with the occurrence of an acute traumatic event (like a motor vehicle accident) shortly before the scans were taken. Further, the left arm and hand symptoms found at Calvary Hospital on the day of the accident were probably caused by the myelomalacia. The onset of those symptoms was consistent with the occurrence of a motor vehicle accident a couple of hours before the symptoms were reported at Calvary Hospital.
Dr Ruttenberg and other doctors who reported on behalf of the defendant accepted that there was a link between the motor vehicle accident, the cervical fusion procedures and the plaintiff’s continuing cervical disabilities. For example, Dr Talbot accepted that the majority of the plaintiff’s injuries and disabilities were related to the motor vehicle accident. He considered that the motor vehicle accident probably caused the protrusion at C5/6 and made the neck much more symptomatic. He also said that the C5/6 fusion may have caused additional strain at the C6/7 level, thereby explaining the causal relationship between the accident and the need for a spinal fusion at the C6/7 level.
There was sufficient evidence to justify the primary judge’s conclusion that the plaintiff suffered an injury to his cervical spine in the collision on 2 March 2006 and that the injury resulted in the need for the two surgical procedures. Not only were objective signs of injury detected by Dr Fuller and Dr Pierce within weeks of the collision, but the plaintiff promptly underwent surgery to address the injury; the C5/6 fusion occurred in November 2006.
The defendant’s appeal against liability must be dismissed with costs.
Consideration – the plaintiff’s appeal against damages
The cross-appeal by the plaintiff against the award of damages by the primary judge occupied very little of the time taken on the appeal. Very brief written submissions were filed by the plaintiff in which he did not identify any alleged error of fact or wrong application of principle by the primary judge. The plaintiff’s simple submission was that the various sums awarded by the primary judge for general damages, future economic loss and future earning incapacity were too small.
The primary judge had a difficult task in assessing damages. The plaintiff was, himself, the cause of much of the difficulty. The lies told by the plaintiff, both to medical practitioners and in his evidence, were clearly designed to exaggerate the level of his disability with a view to inflating his claim. In his written submissions, the plaintiff completely ignores these issues concerning his credibility. In the absence of honest evidence from the plaintiff, the primary judge was required to do the best that he could to assess damages based upon his findings of the extent of the plaintiff’s incapacity.
We are satisfied that no error has been demonstrated in the approach taken by the primary judge. The cross-appeal must also be dismissed with costs.
We have considered the defendant’s submission that the plaintiff should be ordered to pay indemnity costs on the cross-appeal, but we are not persuaded that such an approach is appropriate.
Orders
The defendant’s appeal is dismissed with costs
The plaintiff’s cross-appeal is dismissed with costs.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell and his Honour Justice Burns. Associate: Date: |
KATZMANN J:
Peter Incandela sued Bozo Bobanovic for damages for injuries he alleged he had sustained in a motor vehicle accident on 2 March 2006 when the car Mr Incandela was driving was struck by Mr Bobanovic’s car. At the trial it was common ground that Mr Bobanovic was not the driver, that the car had been stolen, and that the driver was unknown. Mr Bobanovic, who I will call the defendant, largely for consistency with the joint judgment, alleged that there was no accident, that if there was an accident it was “staged”, and that the claim for damages was concocted or at least exaggerated. In the event that Mr Incandela, who I shall call the plaintiff, could prove that there was a genuine accident, however, subject to being able to establish that he had suffered any injury in or as a result of the accident, the defendant accepted liability.
The primary judge disbelieved much of the plaintiff’s evidence and also the evidence of his partner, Ms Trimboli. His Honour found that the plaintiff had deliberately lied to doctors and accountants and had grossly exaggerated the nature and extent of his disabilities and his capacity to work: Peter Incandela v Bozo Bobanovic [2013] ACTSC 213 [56], [127]–[128], [142]–[143], [181]. Nevertheless, his Honour accepted that there had been a genuine accident in which the two vehicles collided at about the time the plaintiff claimed. He said he was convinced by the physical evidence and the evidence of independent witnesses that the accident took place as the plaintiff alleged and also that it caused injury to his body. In coming to this conclusion he said he placed no reliance on the plaintiff’s account or that of Ms Trimboli. He entered judgment in the plaintiff’s favour in the sum of $222,500 plus costs.
Both parties are aggrieved by the decision. The defendant filed an appeal challenging the findings on both liability and quantum but at the hearing of the appeal abandoned the appeal on quantum. The plaintiff filed a cross-appeal complaining that the awards for general damages, past economic loss and future loss of earning capacity were “manifestly inadequate”.
I have had the considerable benefit of reading the joint judgment in draft form. Like their Honours, and for the reasons their Honours give, I am not persuaded that the primary judge erred as alleged in concluding that there was a fortuitous collision between the plaintiff’s and the defendant’s vehicles on 2 March 2006.
In my respectful opinion, however, the primary judge’s reasons for concluding that the plaintiff was injured in the collision are flawed in several respects.
The primary judge’s reasons on this question appear to begin at [49]. They consist of a mixture of conclusions and select references to evidence. At [51] his Honour seems to be stating findings that there was an injury and that the injury consisted of a marked and symmetric posterior discovertebral protrusion in the cervical spine. His Honour appears to have made those findings for the following reasons.
First, the plaintiff attended Calvary Hospital on the evening of the day of the accident.
Secondly, when the plaintiff presented at the hospital he was “apparently in great pain, sufficient to be prescribed two doses of morphine” and examination of his cervical spine revealed abnormalities, which on the medical evidence, could have been rendered symptomatic by the force of the collision.
Thirdly, there were objective clinical signs discernible on magnetic resonance imaging taken some five weeks after the accident which did not depend on the plaintiff’s veracity.
Fourthly, it was not credible that the plaintiff suffered no injury as a result of the collision:
It is not credible that the plaintiff suffered no injury as a result of the collision. I am persuaded that he did. It was as Dr Watson on 10 April 2006 reported, a posterior discovertebral protrusion, both marked and symmetric. It was compressing the spinal cord with abnormal cord signal. These were objective clinical signs consistent with this diagnosis that did not depend on the plaintiff’s veracity.
The difficulties I have with the primary judge’s reasons are these.
First, in the light of the adverse credit findings, the plaintiff’s attendance at the hospital on the evening of the day of the accident is entirely neutral.
Secondly, I have been unable to find any evidence to support the reference to the plaintiff having been prescribed morphine on the evening of the accident. So far as I can tell from the hospital notes, after being seen by the triage nurse and a doctor, his neck was placed in a collar and he was sent home. Indeed, when the plaintiff gave evidence about his attendance at the hospital he did not mention that he had been prescribed or given any dose of morphine. Nor did he mention it to any of the doctors whose reports were tendered in evidence.
Thirdly, the primary judge did not refer to any of the evidence of earlier injury which might have accounted for the plaintiff’s symptoms. The history given to the medical practitioners whose reports the plaintiff tendered was at least incomplete. I will return to this evidence shortly.
As the defendant submitted to this Court, this was not a case of pre-existing pathology being rendered symptomatic by the accident. The plaintiff is likely to have had symptoms before the accident.
On 11 September 2004, the plaintiff had presented to the Emergency Department at Yass Hospital following an alleged assault with an iron bar the previous night in which he had been beaten unconscious (though he later claimed he had not been rendered unconscious). The hospital notes recorded that he had a large contusion over his left cheek and that he had complained of a shooting pain down his right arm into his hand and fingers (index and middle fingers according to the triage nurse and 3rd and 4th fingers according to the examining doctor) and headache. Although on examination there was no local tenderness, on distracting his neck, the doctor who examined him noted considerable pain. The doctor diagnosed the plaintiff with an injury to his face and cervical spine, attributing the symptoms in the fingers to nerve root pressure from the cervical spine. He placed his neck in a soft collar and gave him voltaren and panadeine forte. He arranged for x-rays and a follow-up with his general practitioner. No evidence was called from that GP. The radiologist noted that the clinical indications were: “Alleged assault and ? injury to zygoma. Nerve root symptoms in right hand. ? nerve root compression”. He reported that there were spondylitic changes at most levels with vertebral body spurring and posterolateral osteophytes narrowing the exit foramina bilaterally from C3 to C6 levels.
Five months later, on 19 February 2005, the plaintiff presented at Calvary Hospital with intense headache and on examination had some slight tenderness on the right side of his neck. The doctor’s impression was that his pain was referred from the neck. He was discharged with analgesics to be followed up by his GP. X-rays taken that day showed disc height loss with endplate osteophytes throughout the cervical spine, which the radiologist, Dr Meng Chung, reported were in keeping with spondylosis, narrowing of the lower cervical intervertebral foramina, and facet joint osteoarthritis throughout the cervical spine.
Given the plaintiff’s lack of candour it is impossible to say whether these were isolated episodes from which he made a complete recovery or illustrative of his usual condition in the eighteen months before the motor vehicle accident.
Fourthly, the mere fact that on 10 April 2006 there were objective clinical signs consistent with the “diagnosis” of a posterior discovertebral protrusion did not indicate anything about its cause.
Fifthly, the primary judge erroneously attributed the so-called diagnosis to Dr Watson. Dr Watson (Dr Tim Watson) was the GP who treated the plaintiff after the collision. In fact, the report of 10 April 2006 from which his Honour had drawn his findings at [51] was a report of a radiologist, Dr Mark Pierce, addressed to Dr Watson. The presence of a posterior discovertebral protrusion was only a part of the picture. Dr Pierce wrote:
There is disc height reduction with annular discovertebral protrusion at the C5/6 level and to a lesser extent at the C3/4, C4/5, C6/7, T2/3 and T3/4 levels. The facet joints are preserved.
At the C3/4 LEVEL, the posterior discovertebral change is asymmetric, right paracentral, slightly rotating the cord but not complete effacing the surrounding CSF and without abnormal cord signal. The uncovertebral joints and exit foraminae are preserved.
At the C4/5 LEVEL, the changes are relatively mild and symmetric, without cord displacement or compression. The exit foraminae and uncovertebral joints are spared.
At the C5/6 LEVEL, the posterior discovertebral protrusion is marked and symmetric. This compresses the cord with abnormal cord signals. There is associated uncovertebral joint osteoarthrosis and bilateral C6 foraminal stenosis.
…
Comment
There is marked posterior degenerate discovertebral change and uncovertebral osteoarthrosis at the C5/6 level, compressing the cord with abnormal cord signal-myelomalacia. A neurosurgical referral is suggested.
In the light of this comment and the numerous signs at five levels of the upper spine it is difficult to understand why his Honour felt that he could single out the finding of a posterior discovertebral protrusion as having been caused by the collision. This was not said to be the radiologist’s conclusion. Nor was it Dr Watson’s. He told the plaintiff’s lawyers in a report dated 6 May 2006 that his diagnoses were:
1. Pre-existing cervical osteoarthrosis with cervical cord compression at C5-6.
2. Acute flare up of the osteoarthrosis and triggering of cord compression symptoms.
3. Cervical spine sprain.
4. Adjustment disorder with depressed mood …
On an examination said to have taken place on 7 May 2006 but in all likelihood, having regard to the date of the report, on 7 March 2006, Dr Watson found the plaintiff to be tender at the C2, C3, C4, C5 and C6 spinous processes.
Dr Watson’s conclusion was that the plaintiff had significant symptoms and signs suggestive of a cervical spine disease process — not a frank injury. I accept, however, that it is reasonable to infer that it was Dr Watson’s view that the “acute flare up of the osteoarthrosis” was due to the collision and that it was the collision which triggered the cord compression symptoms. In a later report (dated 1 November 2006) addressed to the defendant’s insurer, the NRMA, Dr Watson did offer an opinion to the effect that the symptoms suffered after the motor vehicle accident were attributable to the accident. In addition, Dr Watson issued numerous medical certificates in which he stated that the injury to the cervical spine was caused by the motor vehicle accident.
But Dr Watson first saw the plaintiff five days after the accident. He was not given a history of any injury to, or symptoms in, the spine. He said in his report of 6 May 2006 that the plaintiff’s medical history was “unremarkable” and that “[n]o previous back or spine injury has been commented on by this man”. Further, in his medical certificates he answered “no” to the question “does the aetiology or diagnosis suggest a pre-existing condition or aggravation of pre-existing condition”.
Quite apart from the history in 2004‑5 and the results of the x-rays taken at that time to which I have referred above, the plaintiff had a history of chronic low back pain and sciatica for over a decade before the accident.
It appears from Dr Watson’s report of 1 November 2006 that the NRMA had drawn Dr Watson’s attention to the 2004 x-rays because in his report Dr Watson said that there was evidence of cervical spondylosis in 2004 and he thanked the NRMA “for noting this on [its] data base”. He added, however, that the “injury that occurred after the mva [motor vehicle accident] is new as indicated by imaging”. Even so, he said that “[t]he Neurosurgeon would be able to compare old images vs new images and present an [scil.] opinion on the expected rate of deterioration and whether [the plaintiff’s] injury is related to a pre-existing [condition] or the mva 2/03/06”. Despite his acknowledgment that cervical spondylosis was present in 2004, however, Dr Watson continued to issue medical certificates in which he excluded the existence of a relevant pre-existing condition.
Some reports were tendered from the treating neurosurgeon, Dr John Fuller, but none of them contained an opinion about the relationship between the motor vehicle accident and the disc protrusion at C5/6 or the other abnormal signs at that or, for that matter, any other level of the cervical spine. There was no reference in Dr Fuller’s reports to the earlier scans or the earlier history of injury. If he had been invited to compare the images, as Dr Watson had suggested, he either did not do so or he did not report on it. All the reports from Dr Fuller that were in evidence were addressed to Dr Watson. If he did provide a report to the plaintiff’s solicitors, it was not tendered in evidence.
Sixthly, while the plaintiff’s evidence was that the problems he had experienced after the assault in September 2004 “went away”, the primary judge found the plaintiff to be an unreliable witness.
Reports were tendered at the trial to establish a connection between the collision and the plaintiff’s symptoms thereafter but the opinions that were given in support of such a connection all rested on the reliability of the history. None of the authors of those reports had seen the plaintiff before the motor vehicle accident. The history was based on the plaintiff’s account which either did not refer to previous symptoms in the neck or arising from the neck or contained denials of any such symptoms.
Alone of all the plaintiff’s medical experts an occupational physician, Dr Le Leu, referred in his report of 12 March 2011 to a large volume of documents which included CT scans and x-rays from 2004. Under the heading “Previous Medical History”, however, Dr Le Leu said that the plaintiff “had no neck pain before the subject accident (but I note he had a CT scan of the cervical spine showing significant degeneration at several levels on 12 September 2004 – this was following his assault episode)”.
In answer to the question put by the plaintiff’s lawyers “[i]n your opinion, are the alleged disabilities provided by our client a direct result of the incident in question or are they the result of a prior or subsequent injury or disability”, Dr Le Leu wrote “[t]he disabilities stated by your client are a direct result of the incident in question”. He added, apparently oblivious to the true history, that “[w]hile there was pre-existing degeneration of the cervical spine he had no such disabilities and might not ever have developed them”.
As the history given to Dr Le Leu was misleading at best, false at worst, his opinion was entitled to little or no weight.
Finally, it follows that, contrary to his Honour’s observation at [66], whether or not the collision caused an injury to the plaintiff’s cervical spine and whether or not, if it did, the injury rendered the plaintiff’s cervical spine “sufficiently symptomatic to require the two fusion operations” did depend on the plaintiff’s veracity, at least to the extent that the medical opinions rested on the plaintiff’s account of the nature and extent of his symptoms and the time of their onset.
In view of these errors, it is necessary to decide whether the evidence was sufficient to warrant a finding that the collision caused injury to the plaintiff’s cervical spine.
The medical practitioners retained on behalf of the defendant appear to have been provided with a more fulsome medical history than the plaintiff’s medical experts. Both Dr Peter Talbot, an orthopaedic surgeon, and Dr Ruttenberg, an occupational physician, said that they had reviewed “the available records”. Dr Talbot did not particularise what they were, Dr Ruttenberg did. It is reasonable to infer, however, that the records were the same. Having regard to the itemised list in Dr Ruttenberg’s report, they consisted of medical records going back to 2002. Both Dr Talbot and Dr Ruttenberg were of the opinion that the 2006 motor vehicle accident was productive of symptoms. After referring to the 2004 radiological investigations Dr Talbot expressed the opinion that it was:
probable that the plaintiff’s “pre-existing potential compromise of nerve roots in the neck was made worse by the motor accident which, on the balance of probability, caused a mild protrusion of the disc at the C5/6 level which was just enough to “push him over the edge” and cause the neck to be much more symptomatic, but it was obviously quite markedly degenerate prior to the accident.
Dr Ruttenberg discussed with the plaintiff the history of injuries revealed in the medical records. He diagnosed an aggravation of pre-existing severe cervical spondylosis and cord myelomalacia and attributed the plaintiff’s symptoms in 2008 to the motor vehicle accident. He said that “[t]he symptom complex and clinical findings are compatible with mild neurological changes as a result of the accident of March 2006”.
With the exception of Dr Watson, none of the plaintiff’s medical experts gave oral evidence.
The defendant called Dr Ruttenberg. Mr Campbell SC, who appeared with Mr Bradfield for the plaintiff, took the Court to some of his evidence in cross-examination to emphasise the presence of objective signs. Yet, as I have already observed, that does not take the plaintiff very far. While there were objective signs to support the plaintiff’s case that he had symptoms of neck pain and nerve root irritation indicative of pathology in the neck at various times after the collision, having regard to the state of the plaintiff’s cervical spine before the collision, those signs do not necessarily prove that damage was caused in or as a result of the collision.
In the course of that cross-examination, however, Dr Ruttenberg was also asked about the myelomalacia appearing on an MRI scan taken on 24 October 2006.
Now, can I just ask you this, doctor: the term "myelomalacia" relates to a haemorrhagic infarction within the spinal cord, does it not?---Correct. There is change in the spinal cord and that results in symptoms and signs.
It is in fact a bleed into the spinal cord?---It's a change within the spinal cord, correct.
And, what’s a bleed? It's blood going into it, isn't it?---Well, it can be. It can be lack of blood that also leads to change, but I agree with you.
And it is usually associated, or it is usually a sequel to the sustaining of an acute injury. Correct? ---It doesn't have to be.
But it usually is associated with an acute injury, isn't it?---I don't have the figures off the top of my head, but it doesn't have to be associated with acute injury. You can get it as a chronic phenomenon. You can get it in disease processes as well.
And, for example, it's often found in association with people involved in contact sports?---Correct. It's something that develops as a result - it can develop as a result of trauma, yes.
That is, violent forces?---Yes.
Such as those you would also experience in a motor vehicle collision?---Yes.
And that is even more so in circumstances where you have a cervical spine that is already compromised by degenerative changes and osteophytes and the like?---Correct.
So what I'm suggesting to you is that the findings of Dr Fuller and the findings disclosed on the two MRI scans, are consistent with an acute traumatic event having occurred shortly before those scans were taken?---Yes.
And you would expect, would you not, the onset of the symptoms associated with that presentation to be temporal to whatever it was that caused them.
HIS HONOUR: When you say "temporal", what do you mean?
MR CAMPBELL: Temporal meaning time.
HIS HONOUR: I know it means time, but what do you mean? ... (inaudible)… [Words to the effect of: Do you mean] in terms of time sequence, I don't have any difficulty, but you are missing the line about the disc osteophyte complex that is there already.
MR CAMPBELL: But the haemorrhaging is likely to have been productive of the symptoms that were afflicting the left arm and hand. That's right, is it not?---Yes.
And you would expect the onset of those symptoms to be connected to some kind of an acute trauma. Correct?---Well, in this case it appeared to be.
In other words, it's consistent with him having suffered a motor vehicle accident a couple of hours before he records those matters to the staff at the hospital?---Yes.
In short, the doctor’s opinion was to the following effect. The myelomalacia seen in the MRI in October 2006 is likely to have caused the symptoms in the left arm and hand. This can occur with or without trauma but in this case it appeared to be connected to “some kind of an acute trauma”. The symptoms were consistent with the plaintiff having had a motor vehicle accident a couple of hours before he presented to staff at the hospital. I take it to have been the common understanding of the cross-examiner and the witness that this was a reference to the plaintiff’s presentation to Calvary Hospital on the day of the accident. The primary judge found at [42] that the collision occurred “at about the time the plaintiff claim[ed]”. That time was 2 pm or thereabouts on 2 March 2006, which was more than four hours before he presented to staff at the hospital, but I do not regard this discrepancy as material.
It was common ground, given the extent of the pre-existing degenerative changes in the plaintiff’s spine, that little force was necessary to cause further damage.
The only references to any symptoms in the left upper limb before the motor vehicle accident appear in two reports from Dr Anthony Bliss, an orthopaedic surgeon, produced in August and November 2006. Dr Bliss saw the plaintiff on behalf of the NRMA on 3 August 2006. In his first report he stated that in 2004 the plaintiff was hit on the head by a piece of brass rod in an altercation, following which he had tingling of the “left 3 to 5 digits” which had settled. The second report picks up this reference. This is obviously a reference to the assault after which the plaintiff attended Yass Hospital in September 2004.
The source of the account to Dr Bliss of symptoms in the fingers of the left hand is unstated. The account is at odds with the contemporaneous medical records which, it will be recalled, refer to symptoms in various fingers of the right hand. Dr Ruttenberg was provided with medical records going back to 2002, including the Yass Hospital records from September 2004, which he said he had reviewed before compiling his report of 15 February 2008. He makes no mention of symptoms in the left upper limb before the collision on 2 March 2006. In these circumstances, I am of the opinion that Dr Bliss’s references are likely to be errors, whether on the part of the doctor or the plaintiff I am unable to say. Either way, I consider the references unreliable.
In the light of the opinions expressed by Drs Talbot and Ruttenberg in their reports and, in particular, the oral evidence given by Dr Ruttenberg, and in the absence of any reliable evidence that the plaintiff had experienced symptoms in the left upper limb before the collision on 2 March 2006, I am persuaded that it is more probable than not that the collision caused some damage to the plaintiff’s neck and accounts for the symptoms he experienced thereafter in the left upper limb.
The appeal on quantum having been abandoned, I therefore agree with the Chief Justice and Burns J that the appeal should be dismissed.
I also agree with their Honours that the cross-appeal should be dismissed. Furthermore, I largely agree with their Honours’ reasons, save that I recognise that the submissions in support of the cross-appeal did make passing reference to the plaintiff’s “demonstrated unreliability”, while downplaying its significance.
I agree, too, that costs should be awarded on a party and party basis.
The defendant’s application for indemnity costs was not made on the basis of any offer of compromise or Calderbank offer (see Calderbankv Calderbank [1975] 3 All ER 333) but, it seems, on the ground that the cross-appeal was an abuse of process. While it is true that the plaintiff’s submissions on the cross-appeal were brief and, to be frank, largely unhelpful, it is not true, as the defendant argued, that he failed to identify any error. Where there is no apparent error, error may be inferred if the appeal court is satisfied that the award of damages was “so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered”: Wilson v Peisley (1975) 7 ALR 571 at 585 (Mason J); Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 at 341, 348, 352. Thus, the allegation that the damages were manifestly inadequate, if made out, would be sufficient to justify appellate intervention.
Consequently, I do not consider the cross-appeal to be an abuse of process.
The challenge to the award of damages for economic loss is without merit for the reasons given in the joint judgment. The submissions in support of them were little more than a series of assertions which paid scant regard to the evidence.
On the other hand, the challenge to the award of general damages was arguable.
The plaintiff was 46 at the time of the accident and 53 at the time of judgment. The primary judge accepted medical evidence that he had a posterior “discovertebral protrusion both marked and symmetric”, which was compressing the spinal cord with abnormal cord signal. The medical records tendered below show that he was treated with narcotic analgesics throughout the five years from the accident to the time of trial. He underwent major surgical procedures, one on 9 November 2006 involving C5/6 anterior cervical decompression and fusion and a second, on 29 April 2008 at the C6/7 level, which the primary judge found were “sequelae of the motor vehicle accident”.
On its face, an award of general damages in the sum of $75,000 for a man of the plaintiff’s age with a neck injury necessitating two separate spinal fusions is very low. Indeed, it might be thought to be so low as to enable the Court to infer that the primary judge fell into error.
That said, however, it was common ground at the trial that the plaintiff had pre-existing degenerative changes in his spine. The evidence disclosed that he had suffered some symptoms in his neck before the accident. The primary judge held that he had at that time “a defective cervical spine”. Surveillance evidence revealed a man far less disabled than he made out to his doctors and to the court. The medical reports tendered by the plaintiff indicate that the doctors were misinformed about the extent to which he had worked after the accident. Contrary to what he told doctor after doctor, he had returned to work after the first operation. Not only did he deliberately mislead the doctors, he misled his accountant, the expert who reported on his economic loss claim and the Court.
When all these matters are taken into account I am not satisfied that the award of general damages is manifestly inadequate. The trouble with the plaintiff’s argument is that the dishonest account he gave of himself and his disabilities made it very difficult for the primary judge to determine his level of pain and suffering at any time. I am unable to conclude that in these circumstances the amount awarded was so low as to bespeak error.
In any case, error in respect of one head of damage alone would not necessarily justify disturbing the judgment.
In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, an appeal challenging the assessment of various heads of damage as excessive, at 345 Cooper J summarised the relevant principles applying to an appeal against an award of damages in a personal injuries suit:
Clearly, the assessment of damages is an area where different minds may properly come to different views. The assessment of damages for personal injuries involves “the exercise of a form of judicial discretion” (per Dixon J. Lee Transport Co. Ltd v. Watson (1940) 64 C.L.R. 1 at 13; Miller v. Jennings (1954) 92 C.L.R. 190 at 195–196 and Moran v. McMahon (1985) 3 N.S.W.L.R. 700 at 717–723).
However, the judgment is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser [Gamser v The Nominal Defendant (1977) 136 CLR 145] per Stephen J. at 149–150 with whom Gibbs J. agreed at 148 and Paul v. Rendell (1981) 55 A.L.J.R. 371 (P.C.) at 376–377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum (Wilson v. Peisley (1975) 50 A.L.J.R. 207 at 214 per Mason J. with whom Gibbs J. agreed; Gamser per Gibbs J. at 148 and Stephen J. at 149–150; Sharman at 572 per Gibbs and Stephen JJ. with whom Jacobs J. agreed as to the approach of an appellate court; Dessent v. The Commonwealth (1977) 51 A.L.J.R. 482 at 486–487 per Mason and Aickin JJ.)
What is appealed against is the total sum awarded i.e. the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.
For the reasons given above at [107[‑[110], I am not satisfied that the overall assessment was outside the range of sound discretionary judgment.
It follows that I also agree with the orders proposed by the Chief Justice and Burns J.
| I certify that the preceding fifty-nine [59] paragraphs numbered [54] – [112] are a true copy of the Reasons for Judgment of her Honour Justice Katzmann. Associate: Date: |
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