Brown v Axton

[2003] NSWCA 97

CITATION:	BROWN v AXTON [2003] NSWCA 97
HEARING DATE(S):	3 April 2003
JUDGMENT DATE:	3 April 2003
JUDGMENT OF:	Mason P at 1; Sheller JA at 38; Ipp JA at 39
DECISION:	Appeal upheld. See pars 36 and 58
CATCHWORDS:	Appeal - application for new trial based upon deficiency of reasons - motor vehicle accident - causation of injuries in issue - whether new trial would be futile (ND)
PARTIES :	ROBYN BROWN v GRAHAM AXTON
FILE NUMBER(S):	CA 40276/2002
COUNSEL:	Appellant: MR Aldridge SC/ PN Khandhar Defendant: JD Hislop QC/ SC Finnane
SOLICITORS:	Appellant: Bryden's Law Office Respondent: Stewart Cuddy & Mockler

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8530/1999
LOWER COURT JUDICIAL OFFICER :	Gamble DCJ

CA 40276/2002

MASON P
SHELLER JA
IPP JA

Thursday 3 April 2003

Robyn BROWN v Graham AXTON

JUDGMENT

1 MASON P: The appellant sued the respondent and the owner of the respondent’s car for damages stemming from a motor vehicle accident on 22 April 1996.

2 The appellant was driving her vehicle when struck from behind by the car driven by the respondent. The respondent had failed to stop after the accident. The appellant gave chase in her car and managed to get the car number. She reported the accident to the police immediately. The respondent admitted breach of duty on the pleadings.

3 The trial of the assessment of damages took place in the District Court before Gamble ADCJ. The hearing spanned two days, with evidence being given by the appellant, her husband and her son. Bundles of medical reports were tendered by each side but no doctor was required for cross-examination.

4 In a reserved judgment given on 21 March 2002 her Honour entered a verdict for the defendants. Costs followed the event.

5 There are no findings in the judgment as to the extent of the appellant’s present injuries and disabilities, their likely duration or their capacity to be cured or mitigated. The judgment proceeds in effect on the basis that they are a given. This said, there appears no doubt that the appellant presently suffers considerable ongoing pain and disability, affecting her neck, her back, her right knee and her psyche. The issue fought at trial was whether such disabilities were causally related to the motor accident and, if so, the extent of that connection and its monetary impact.

6 Three heads of damages were pressed at trial:

(1) out of pocket expenses, agreed at $2542.59;
(2) damages for non-economic loss (general damages);
(3) damages for economic loss.

7 As to general damages, s 79A of the Motor Accidents Act 1988 relevantly required that the Court had to be satisfied that the appellant crossed two thresholds, namely that of showing (i) that her ability to lead a normal life had been significantly impaired for a continuous period of not less than twelve months by the injuries suffered in the accident and (ii) that the severity of her non-economic loss was at least fifteen per cent of a most extreme case.

8 The appellant was aged forty five when the accident occurred. Since 1976 she and her husband had conducted an optical dispensing business together, initially as partners, later as directors and part shareholders of a family company that operated as a trading trust. Mr Brown supplied the technical expertise and the appellant the management and clerical skills.

9 The appellant’s claim for economic loss damages did not seek to establish loss or diminution of company profits. This is somewhat curious but it may be due to the trust arrangements. Nor was it suggested that the appellant’s salary income, fixed at $35,000 per annum gross, had been affected in the period between the accident (1996) and the trial (2002). Rather, the case that was pressed was, in effect, that the business would be sold in due course. The appellant said in evidence that the business was not going as well as it had done before the accident.

10 Be that as it may, as I read the particulars at trial and the Rule 8 affidavit filed in the appeal, the economic loss component of the claim was based upon loss of earning capacity in the form of diminished capacity to work, which will sound in financial loss when and if the family business is sold and the appellant looks for employment in the open market, assuming it could be shown on the balance of probabilities that she would have done so had she not been injured. On the evidence to which we have been taken, this component of the appellant’s damages may not be large and it is likely that a smallish cushion would be awarded if causation had been established. The appellant has been a very energetic person, being described in some of the medical evidence as “driven”.

11 The case had many of the typical features of a whiplash or soft tissue injury claim and the trial had many common features of a trial involving difficult medical issues on which there was no cross-examination of the various doctors.

12 The appellant had problems with her back, neck and knee prior to the accident in April 1996. She had suffered an injury in 1993 when she jumped off a chair, twisting her knee, which led to an arthroscopy and physiotherapy treatment in 1994. These difficulties continued despite treatment. There were also back problems for which the appellant had had x-rays and sought orthopaedic and chiropractic assistance.

13 The day after the accident, the appellant attended upon her GP, Dr Lau, and gave a history consistent with the one forming the basis of the instant claim. She complained of pains over the back of her neck, the lower back and the left forearm (Blue 2). Nurofen was prescribed and she was advised to apply heat to the affected areas. Dr Lau found no swelling to the lower back or right knee. Apparently however he was asked to look in those parts of her body.

14 Dr Johnson is an orthopaedic surgeon who was treating the appellant throughout 1994 in relation to her knee injury. She did not see him in 1995 but returned on 7 May 1996. This was approximately two and a half weeks after the motor vehicle accident. She made no mention of the accident, at least according to the doctor’s report. But she told Dr Johnson she had recently had two falls at her office giving rise to knee and back pain. In her oral evidence, the appellant said that these falls occurred after the motor vehicle accident (Black 33). Dr Johnson suggested that the appellant should see Professor Dan about her back problems, apparently on the basis that this was not Dr Johnson’s specialisation (Blue 4).

15 The appellant endeavoured in her oral evidence to explain why she had not told Dr Johnson about the car accident, or why according to her he had not recorded what she may possibly have said about it (Black 31 and 32).

16 The appellant consulted Associate Professor Dan, a neurosurgeon, in July 1996. He reported as follows:

The cervical x-rays showed advanced spondylotic changes at C5-6 on 10.7.96. The lumbar MRI showed minor changes of doubtful significance at L3-5.
I think she has a cervical and lumbar soft tissue dysfunction rather than a disc lesion or a neural compression. I therefore strongly recommended to her that she ought to undertake a lumbar and abdominal strengthening programme. This could be taught to her by the physiotherapist, but essentially she would need to work on it herself to consistently build up those muscles to protect her back. I do not see an association between the present knee pain and the lumbar injury.
On the history given to me, I would associate her neck, back and lumbar symptoms with the motor vehicle smash and believe they are myofascial in nature. The knee would appear to be a local injury, but that would be better commented upon by an orthopaedic surgeon, such as Mr Johnson. When seen, she was fit for activities which did not involve heavy lifting or repetitive bending, or maintenance of a fixed posture for long periods of time. This was 3 months from the time of injury and further improvement was probable.

17 There were other medical reports from doctors relied upon by each side that gave diagnoses supportive of or consistent with the appellant’s claim. See for example Dr Conrad at Blue 35-6. Obviously these opinions depended to a large degree upon the appellant’s accuracy and credibility as a medical historian. Most of the doctors, however, were given histories that included reference to problems other than the motor vehicle accident, yet many of them were able to express opinions that supported the appellant’s case, at least to a degree. Those opinions naturally depended as I have said to a large degree upon the accuracy and honesty of the appellant’s account.

18 The medical evidence also confirms that there were significant issues to be determined involving the separating out of the causal impacts upon the appellant’s present unhappy condition of (a) the knee injuries before and after the motor vehicle accident, (b) pre-existing symptomatic and asymptomatic cervical and lumbar problems, (c) the appellant’s lifestyle including the way she sits and moves at work, (d) independent stressors in the appellant’s life situation as a busy spouse and parent and (e) the impact of the motor vehicle accident itself.

19 What is presently important is that several of the doctors expressed firm opinions supporting a case that the accident had aggravated or exacerbated the pre-existing problems to some degree. There is also psychological evidence capable of supporting the claim that the appellant’s tense and anxious state is due at least in part to the motor vehicle accident. The appellant’s son also gave evidence supporting such a claim.

20 The reports of the respondent’s doctors disputed or qualified the medical evidence to various degrees but they did not reject the claim root and branch. See for example Dr Bryan’s report at Blue 331.

21 This rapid excursus through some of the medical evidence is not intended to convey any conclusion about the significance, if any, of the motor vehicle accident upon the appellant’s medical and psychological problems. There is, indeed, substantial material showing the presence of pre-accident degenerative problems and problems stemming from the 1993 knee injury.

22 It was the task of the trial judge to make appropriate findings on the issues contested. Such findings necessarily involved addressing the appellant’s credibility as a witness in Court and as a medical historian. Unfortunately, the reasons for judgment are both ambiguous and lacking in essentials, so much so that a new trial is regrettably necessary.

23 Her Honour’s brief judgment recounts the chronology of the medical history. It summarises Dr Johnson’s report and notes the doctor’s observation that he had not been aware of the motor vehicle accident when he examined the appellant in May 1996. There is, however, no reference to the appellant’s oral evidence about this particular issue.

24 Other medical reports are summarised, including those supporting the appellant’s case and those indicating otherwise. Unfortunately, there is no grappling with the inconsistencies or attempt to reconcile or resolve them. One suspects that her Honour thought that everything turned upon the credibility of the appellant, but this is nowhere stated in terms and there is no finding on that vital issue.

25 The oral evidence is summarised and the dispositive conclusions stated in the following terms:

Evidence from Mr and Mrs Brown and their son Michael confirmed the doctors’ opinion that Mrs Brown was suffering stress from excessive work and domestic commitment. She had worked between 60-80 hours per week for some years up to the accident, doing all the clerical and management support work for the business and some of the final cleaning before despatch. In addition, she cared for the family at home. She worked part time between 1976 – 1990, then full time up to the date of the trial. The only difference before and after the accident was in the amount she was able to get done at work and at home. Mr Brown’s evidence was that the business never really caught up after April 1996, they were always behind with their work. At home, he said he had to help a lot more. Michael had started work at VisonLab as a casual in 1995. By this time he had completed his apprenticeship in plumbing but had not completed the two years TAFE required for a gold licence. He says he wants to obtain the gold licence and to build up his own business as a plumber. He became a permanent member of the VisionLab staff in September 1996, because his father was not coping with his work without as much held from his mother. Staff problems had added to their concerns; two or three staff had been dismissed about this time, for using company time and resources for their own jobs and two or three were dismissed later. Michael joined the company full time after the first two or three had been dismissed. A new person had been taken on in recent weeks, as an independent contractor, to assist Mr Brown with the technical work. Michael gave evidence that he provides assistance to both his father and his mother, although he is not trained in the optical business.
This evidence does not persuade me that Mrs Brown’s injuries were caused by the accident of 22 April 1996. Mr Pullinger for the plaintiff pointed to the following evidence in the medical reports to provide the necessary proof:
• the reports of pre-existing complaints from Dr Loutfy (Ex 4) and Dr Cohen (Ex D) show limited and isolated problems in the neck and back, but no continuous complaint. The x-ray evidence from Dr Cohen is completely at odds with complaints reported after the accident and showed no abnormality in the lower back.
• X-rays taken by Dr Sachinwalla (Ex A, 10/7/96) and the MRI scan of 5 March 1997 (Ex A, Dr Gale) show a different picture from the investigations done before April 1996. Mr Pullinger relied on reports from Dr Conrad (Ex A, 17/8/99 and 3/9/01) and Dr Dan (Ex A, 20/12/96) to demonstrate the differences.
I have examined these reports as Mr Pullinger requested but do not find the evidence he suggests is there. I am therefore still unpersuaded that Mrs Brown’s complaints were caused by the 1996 accident.

26 The only portion of the judgment that goes beyond reciting submissions and substantially non-controversial evidence is that beginning “This evidence” in the passage I have just set out. This passage is the heart of her Honour’s reasons and the heart of my reasons why there must be a new trial. I have several difficulties and they overlap and reinforce my conclusion.

27 First, it is unclear as to what evidence is being referred to in the opening words “This evidence”. If it means the oral evidence summarised in the paragraph immediately preceding, that evidence does not really touch upon the medical causation issue. If it means all of the evidence summarised earlier in the judgment, there is simply no identification of the critical parts of it. Much of that evidence did support the appellant’s case.

28 Secondly, the reasons fail to grapple with the core issue of the appellant’s credibility. Justice to the appellant as a litigant and a potential appellant required that this matter not be left to inference, yet the judgment is entirely silent on the matter.

29 Thirdly, the reasons make no reference to the portions of the evidence of the appellant’s son which were capable of supporting the appellant’s case on the causal impact of the accident (see Black 87-88).

30 Fourthly, the paragraph commencing “This evidence” reads like a finding of no evidence supporting the appellant’s case, save and except the portions addressed in the sentences which follow. I have already indicated that there was considerably more, not that her Honour was bound to accept it.

31 Fifthly, there are the statements in the first and last sentences suggesting that her Honour may perhaps not have addressed the heart of the appellant’s claim which was one based upon exacerbation or aggravation of a pre-existing condition. At common law, a plaintiff will succeed if injury is caused or materially contributed to by a tortious wrong. It is possible that this was a slip of expression and if it were the only difficulty with the judgment one may well have thought that her Honour did not intend to overlook this principle. But having regard to the totality of the material, the issue looms with greater significance than it otherwise would.

32 The appellant sought only a new trial and the absence of findings on critical issues meant that there was no prospect that this Court would be in a position to deal with the matter by way of a rehearing leading to a verdict either for the plaintiff or the defendant. However, a new trial might not be appropriate if notwithstanding the absence of reasons it were clear that the case was doomed to fail in some identifiable particular.

33 I have indicated the threshold requirements of s 79A. I prefer to say no more than there is an arguable possibility that the appellant may be able to overcome those thresholds. It depends very much upon the assessment of the judge hearing the matter and considering all of the issues including the credibility issues.

34 As to the economic loss claim, I have expressed some views on that but I am not prepared to say that no damages are likely to emerge and I have referred already to the small figure of agreed out of pocket expenses.

35 In these circumstances, regrettable though it is, it is necessary to order a new trial.

36 I therefore propose the following orders:

(1) Appeal upheld.
(2) Set aside the verdict for the defendants with costs made at trial.
(3) Order a new trial as to [causation and] damages with the previously unordered costs of the earlier trial proceedings to be determined by the judge hearing the new trial.
(4) Respondent to pay the appellant’s costs of the appeal and to have a certificate under the Suitors Fund Act if qualified.

37 The costs awarded in the appellant’s favour are not to include the costs of preparation of the blue appeal books which have not been prepared in accordance with the rules and have, in the way they have been set out and indexed, been of limited assistance to the Court. They are not to be awarded in the appellant’s favour and the Court would expect that they are not to be charged for by the solicitor either.

38 SHELLER JA: I entirely agree with what the President has said and agree with the orders that his Honour has proposed.

39 IPP JA: I also agree.

40 MASON P: The orders will be as indicated.

41 HISLOP: Before your Honour pronounces those orders, might I just interrupt. Your Honour ordered a new trial as to damages.

42 MASON P: Yes.

43 HISLOP: What was admitted on the pleading was breach of duty of care but there was denial of any injury. Just as long as it’s clear that what your Honour is ordering would permit of a verdict for the defendant, should it be found there be no injury resulting.

44 MASON P: That certainly is my intention and I think it’s consistent with the form of order that was made.

45 HISLOP: I merely raise it in case there was any doubt in the court below when the matter goes back.

46 MASON P: The question of damages stemming from the injury is at large in the new trial.

47 HISLOP: Yes. As long as it’s accepted by everyone that there can be a verdict for the defendant, even though--

48 MASON P: Is there some other form in which the order in your submission should be expressed to give effect to that?

49 HISLOP: Not as long as it’s understood that the intention of your Honour--

50 SHELLER JA: I’m just trying to find, where is the part in the defence where the concession is made?

51 HISLOP: It’s at red p 10, paras 1 and 2 deal with it.

52 SHELLER JA: You admit a breach of a duty of care.

53 HISLOP: Yes.

54 IPP JA: Perhaps one should include at the trial the issue of causation.

55 SHELLER JA: Yes.

56 MASON P: And damages.

57 IPP JA: Yes.

58 MASON P: For more abundant caution I shall amend the order number 3 so that it is a new trial as to causation and damages.

**********

Last Modified: 05/08/2003