BOWDEN v COLBEY - [2005] SASC 387

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BOWDEN v COLBEY
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Gray)
7 October 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The appellant appealed against the assessment of damages awarded to her following the trial in the District Court of her action for damages arising out of a road accident in which she suffered a whiplash injury to the neck - following the accident, she claimed that she was unable to resume her work as a registered nurse - the trial judge was not satisfied that the appellant suffered the pain and disability which she claimed - he preferred medical evidence called by the respondent to the effect that her injuries were minor and would have incapacitated her for work for a short time only - he held that a film taken over a period of time depicting the appellant in various day-to-day activities was consistent with his conclusions as to the relatively minor effects of the injury - held on appeal that there was no reason to interfere with the trial judge's findings, and the suggestion that he had placed too much emphasis on the film was not made out - observations as to the evidentiary significance of particulars of injury given in an affidavit of loss - appeal dismissed.
DCR r 46.15 and r 74A.07(2)(ba); SCR r 46A.11, referred to.
Holyoak v Ivanoff Supreme Court of South Australia, Perry J, 18 August 1995, judgment No S5213, considered.

BOWDEN v COLBEY
[2005] SASC 387
Full Court: Doyle CJ, Perry and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Perry J. The case was a difficult one. In some respects it is an unusual one. But, at the end of the day, I am not persuaded that the Judge erred. I am content to adopt the reasons given by Perry J for so deciding.
PERRY J. The appellant appeals against the judgment entered in her favour following the trial in the District Court of her action for damages for injuries sustained by her as a result of a motor vehicle accident on 13 April 1999.
Liability was admitted, and the action came on for assessment of damages only.
The trial judge assessed the appellant’s damages, including interest, in the sum of $28,452.70. After giving credit for interim payments made to the appellant totalling $14,000, judgment was entered for $14,452.70.
In her notice of appeal, the appellant complains that the assessment of damages was manifestly inadequate.
Background
The accident occurred while the appellant, then aged almost 41 years, was driving her Volkswagen motor car. She was stationary at traffic lights at an intersection when a four-wheel drive vehicle driven by the respondent collided with the rear of her car.
The respondent gave evidence that he had stopped his vehicle about a half a car length behind…

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.

Continue reading BOWDEN v COLBEY

Details

AGLC: BOWDEN v COLBEY [2005] SASC 387
Case: [2005] SASC 387
Decision Date: 7 October 2005

CaseChat Overview and Summary

In the matter of Bowden v Colbey, the appellant, Ms Bowden, brought an action in the District Court against the respondent, Mr Colbey, for damages arising from a road accident that occurred when Mr Colbey's vehicle collided with the rear of Ms Bowden's car. The appellant claimed that she suffered a whiplash injury to her neck which resulted in her inability to resume her employment as a registered nurse. The trial judge did not find the appellant's claims credible, instead preferring the medical evidence presented by the respondent, which suggested that the injuries sustained by the appellant were minor and would only have incapacitated her for a short period. The trial judge also considered a film of the appellant engaged in various day-to-day activities to be consistent with his findings of relatively minor injuries.

On appeal, Ms Bowden argued that the damages awarded to her were manifestly inadequate. The appeal court was required to determine whether the trial judge's findings on the extent of the appellant's injuries and the assessment of damages were correct and whether there was any error in the trial judge's approach to the evidence, particularly in relation to the film evidence.

The appeal court found no reason to interfere with the trial judge's findings. The court observed that the appellant's case was presented on the basis of organic injury which gave rise to the symptoms she consistently complained of, but there was no psychiatric or psychological evidence presented. The court noted that x-rays and clinical examinations over a long period of time failed to indicate any organic basis for the continuing symptoms in the neck. The court concluded that the trial judge did not place too much emphasis on the film evidence, and that the film was consistent with the trial judge's findings of relatively minor injuries. The court found that the trial judge was entitled to prefer the medical evidence called by the respondent and that the appellant had not satisfied the court that any pain, disabilities, or incapacities suffered were attributable to the accident.

In light of the findings, the appeal was dismissed, and the decision of the District Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

In her notice of appeal, the appellant complains that the assessment of damages was manifestly inadequate.Background The accident occurred while the appellant, then aged almost 41 years, was driving her Volkswagen motor car. She was stationary at traffic lights at an intersection when a four-wheel drive vehicle driven by the respondent collided with the rear of her car. The respondent gave evidence that he had stopped his vehicle about a half a car length behind the Volkswagen, and when the lights changed to green he started to move off. He was distracted by his mobile phone, and momentarily took his attention off the road. When he looked up, he saw that the Volkswagen’s brake lights were on. He immediately braked but not quickly enough to avoid an impact with the rear of the Volkswagen. His evidence was that his car was travelling at no more than 5 kilometres an hour at the time of the collision, as he had only just started moving off. He said that his car just “touched the Volkswagen’s bumper bar”. There was no head restraint in the appellant’s car. She thought that the Volkswagen was pushed forward, but she did not know how far. Photographs tendered at the trial indicate a slight dent in the rear bumper bar of the Volkswagen. The trial judge found that the damage to the Volkswagen was minor. He concluded:[34]The dynamics of the accident (including the fact that the plaintiff’s vehicle was forced forward only one metre, which is what I find) were, however, such as to satisfy me that the collision itself was a low impact collision causing mild forces on the plaintiff’s upper torso. The appellant’s evidence was that as soon as she got out of the car following the accident, her neck felt sore and aching, her head felt “heavy”, and she had a sore right wrist. She said that the pain increased overnight. The next day she consulted a general practitioner, Dr Rodda. Dr Rodda diagnosed a “moderately severe ligamentous neck strain, of the whiplash type”. In a report given to the appellant’s solicitors dated 25 May 1999, Dr Rodda stated:[The appellant] has been treated with rest and physiotherapy. It is planned that she return to work on 31.5.99. Her condition is much improved, but should resolve completely over the next 6 months. Physiotherapy will continue, less frequently, for another 1-2 months. Prognosis is for total recovery. She has been unable to work from 14.4.99 to 31.5.99. Her working capacity in the future should not be affected. Despite that somewhat optimistic prognosis, the appellant’s evidence was that her condition, at least in the neck, did not resolve. At the time of the accident the appellant was employed at Ashford Hospital as a registered general nurse, in the orthopaedic ward on night shift. She first attempted to return to work in June 1999 when she was rostered on for two nights. Her evidence was that although the first night was a “fairly quiet night”, her neck got “sorer and sorer”, and that it was worse on the second night.

Evidence

Evidence Before The Court

I will refer to the film later in these reasons.The medical evidence The appellant called the general practitioner Dr Rodda, two occupational physicians, Dr Graham and Dr Colin Mills, and a chiropractor, Mr Christopher Slaughter. In addition, the appellant tendered a report of another general practitioner, Dr Karen Hand and two reports of Dr Adrian Munyard, an orthopaedic surgeon. The respondent called an occupational physician, Dr Christopher Kelly, a general and orthopaedic surgeon, Dr Ross Johnson, and tendered the report of an orthopaedic surgeon, Dr Garth Fraser. In his reasons for judgment, the trial judge canvassed the evidence of these witnesses at length. No useful purpose would be served by repeating that exercise. It is sufficient to make some general observations. In particular, all of the doctors consistently reported that on examination there was a virtually full range of movement in the neck. For example, Dr Graham reported that when he examined the appellant on 23 June 1999:Examination of her neck revealed a full range of flexion, extension and rotation to the right and left but with some discomfort in the left trapezius muscle with rotation to the left. On palpation there was no stiffness but minor tenderness generally. When he reported on her condition in August 2000, he said “On examination she moved without any apparent discomfort or difficulty”. With minor variations, the other doctors all reported the outcome of their clinical examination of the appellant in similar terms. Radiological examination of the plaintiff did not reveal any significant injury. For example, Dr Garth Fraser described plain x-rays of the cervical spine taken on 3 November 1999 as normal, and an MRI scan of the cervical spine on 1 June 2000 “confirms good signals at all levels”, from which he concluded that there were no established degenerative changes. The differences between the doctors turn largely upon whether they were prepared to accept the appellant’s complaints, notwithstanding the lack of evidence of any organic cause. There were also differences between the doctors as to the conclusions which they were prepared to draw from the range of activities depicted in the film. For example, Dr Graham said that he assumed the appellant’s presentation to be genuine. Dr Mills said that although her complaints of pain and the severity of the complaints were in excess of what one would expect, it was a question of whether the appellant was to be believed or not, and he believed her. Notwithstanding that view, he said in evidence:… I think the initial decision to not place her back at work by the employer was uncharitable and certainly led to us being here and I don’t think it did anything for the long term help for her neck. There are a range of activities that a sensible employer would be able to find and use her skills .. Dr Mills also suggested that it would be useful to have an assessment by a psychologist with psychometric testing, or a psychiatrist, as her symptoms “seem greater than expected on physical grounds”.

Decision

Reasons for decision

PERRY J (dissent)

From start to finish, the appellant’s case was presented on the basis that she had suffered organic injury which gave rise to the symptoms of which she consistently complained. No psychiatric or psychological evidence was called. Even if the amendment had been allowed, it could not have led anywhere.Conclusion Reasoning from the conclusions which I have so far expressed, there are fundamental difficulties or inconsistencies, in the manner in which the plaintiff’s case was presented. As I have already observed, x-rays and clinical examination of the plaintiff by a number of doctors over a long period of time, from shortly after the accident, failed to indicate that there is any organic basis for the continuing symptoms in the neck. Furthermore, throughout virtually the whole of the relevant period, examinations revealed virtually full, pain-free movements of the neck and shoulder. The trial judge expressed the following conclusions as to the extent of the plaintiff’s pain and disability:[234]I conclude that it is not probable that the plaintiff suffers the pain and disability she has described to doctors and in evidence. She has had, since soon after the accident, unrestricted pain-free movement of her neck and shoulders. She has had little active treatment by any medical practitioner and little pharmacological treatment. The doctors whom I prefer cannot explain her pain and symptoms on organic grounds, and have said that any symptoms which she does suffer are unrelated to the accident in April 1999. Furthermore, the plaintiff was, at the time of the accident, 40 years of age and her x-rays and scans were consistent with a woman of that age, with the possibility of some degenerative change being noted as being unassociated with the accident. Since the accident she has, however, borne her first child at the age of 41 years and has been fully involved in the duties of motherhood. She has worked within and outside her house in ways which I have found is more than she said in evidence.[235]My conclusion is that the plaintiff has not satisfied me that any pain, disabilities or incapacities which she has suffered since about September 1999, and which she may suffer in the future, are in any way attributable to the minor motor vehicle accident in April 1999.[236]I am satisfied and find that in that accident on 13 April 1999 the plaintiff suffered a mild musculo-ligamentous injury to her neck for which she was appropriately treated in the months following the accident. I am satisfied and find that in the accident she suffered a very mild injury to her right wrist. I find that that injury resolved within a week or so. I am satisfied and find that any symptoms causing pain, disability, or incapacity which resulted from the injuries she suffered in the accident has resolved by no later than the end of 1999. I find that any such symptoms that she has experienced after the end of 1999 did not result from any injury she received in the motor vehicle accident in April 1999.

Ratio Decidendi

Legal Principle Established

Established by:

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