Dalton v Pinkerton
[2017] ACTSC 28
•17 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dalton v Pinkerton |
Citation: | [2017] ACTSC 28 |
Hearing Date: | 6 February 2017 |
DecisionDate: | 17 February 2017 |
Before: | Murrell CJ |
Decision: | The orders of the Magistrates Court are set aside. Judgment for the appellant in the sum of $45 040. Each party is to pay its own appeal costs. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – Personal injury – Motor vehicle accident – Damages – Matters to be considered in reduction of damages – Credibility of oral testimony – Credibility of plaintiff – Calculating out-of-pocket expenses |
Legislation Cited: | Health and Other Services Compensation Act (Cth) s 23(5) Magistrates Court Act 1930 (ACT) pt 4.5 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | De Marco v Italo-Australian Club (ACT) Ltd [2010] ACTSC 28 Dojcinoski v Aleksovski [2015] ACTSC 357 Warren v Coombes [1979] HCA 9; 142 CLR 531 |
Parties: | Stephen Raymond Dalton (Appellant) David Pinkerton (First Respondent) Insurance Australia Ltd t/as NRMA Insurance (Second Respondent) |
Representation: | Counsel Mr A Hausfeld (Appellant) Mr K Rewell SC (First and Second Respondents) |
| Solicitors Blumers Lawyers (Appellant) Sparke Helmore (First and Second Respondents) | |
File Number: | SCA 20 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 9 March 2016 Case Title: Stephen Raymond Dalton v David Pinkerton & Insurance Australia Limited trading as NRMA Insurance Court File Number: CS 626 of 2013 |
MURRELL CJ:
The appeal
On 18 June 2010, the appellant’s vehicle was stationary at a roundabout on the corner of Sulwood Drive and Sainsbury Street in Kambah, when it was hit from behind by a vehicle driven by the first respondent and insured by the second respondent. The appellant suffered a whiplash injury.
The appellant commenced proceedings in the Magistrates Court. Liability was admitted and the matter proceeded as an assessment of damages. The appellant claimed that he suffered multiple injuries, particularly to his neck and lower back. He said that the main ongoing disability was headaches. The respondents did not dispute that the appellant continued to suffer from headaches associated with cervical facet joint inflammation, but disputed the severity and frequency of the headaches.
Magistrate Boss (the Magistrate) accepted that it was likely that the appellant’s pre-existing degenerative lower back condition was to some extent aggravated by the accident and that the accident caused inflammation of the cervical facet joints and related headaches: at [42] and [56]. However, her Honour was not satisfied that the appellant and his wife had given honest and accurate evidence in relation to the headaches and back pain suffered as a result of the accident: at [46]. Her Honour did not accept that the appellant’s headaches were as severe and frequent as the appellant and his wife had stated: at [49] and [56]. Her Honour proceeded on the basis that the accident had resulted in the appellant experiencing a low level of pain caused by occasional headaches: at [59].
The Magistrate gave judgment for the appellant in the sum of $38 675.04. The sum comprised $30 000 for general damages ($20 000 for the past and $10 000 for the future), a $5000 buffer for future economic loss and the remainder for out-of-pocket expenses.
The appellant appealed, claiming that:
(a)The Magistrate had unreasonably rejected the evidence of the appellant and his wife and should have accepted that the appellant suffered from significant and disabling headaches which affected his work capacity and ability to undertake domestic tasks.
(b)In the absence of procedural fairness, the Magistrate should not have reduced interest on general damages because of the delay between the accident and the hearing.
(c)The Magistrate had erred in her approach to Medicare benefits.
The appellant contended that, as a consequence of these errors, the Magistrate had erred in her assessment of general damages, interest on general damages, future wage loss and past out-of-pocket expenses, and should have awarded damages for future out-of-pocket expenses, past wage loss and past and future domestic assistance.
Appeal from the Magistrates Court
The appeal was brought under Pt 4.5 of the Magistrates Court Act 1930 (ACT). It was a rehearing: Ning v McGrath [2015] ACTSC 163 at [11] (‘Ning’); Malek v Remondis AustraliaPty Ltd [2015] ACTSC 135 at [11]–[14]. On such an appeal, the appellate court must conduct a real review, drawing its own inferences and conclusions from the evidence, but bearing in mind the advantages of the primary judge in relation to fact-finding: Ning at [11]. The parties agreed that the approach to such an appeal is that which applies to an appeal under s 37E of the Supreme Court Act 1933 (ACT). The principles relating to such an appeal were recently summarised in Singh v Cooper [2016] ACTCA 55 at [44]–[47] and Ryan v Vizovitis [2017] ACTCA 3 at [132]–[136] (‘Ryan’).
In Ryan at [132], the Court of Appeal endorsed the approach of Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [78], where her Honour emphasised the fundamental distinction between the approach of an appellate court to a case which involves admitted or found facts, and the approach to a case which required the trial judge to form a view about the credibility of oral testimony. In the former category of case, the appellate court is generally in as good a position as the trial judge to decide the proper inference to be drawn from undisputed or decided facts: Warren v Coombes (1979) 142 CLR 531, 551 per Gibbs ACJ, Jacobs and Murphy JJ. In the latter category of case, while the trial judge’s findings about the credibility of oral evidence are not entirely immune from challenge by the appellate court, the appellate court must respect the trial judge’s evaluation of credibility. Further, the appellate court cannot assume that every consideration influencing the trial judge’s assessment of credibility will find expression in the reasons: Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [41].
Witness assessment
The Magistrate’s findings about the credit of the appellant and his wife were critical to the assessment of most heads of damage.
10. In evidence, the appellant said that he had experienced less severe headaches (which lasted at least two or three hours) about three or four times a week, commencing in 2010 and continuing to the date of the hearing. He had experienced severe headaches commencing in about August 2010 and occurring about every two months. The severe headaches rendered him bedridden. He said that his neck was “okay most of the time” but that his lower back was very sore right down by the tailbone. The lower back symptoms interfered with his sleeping. He said that his symptoms had caused work absences.
11. His wife said that the appellant suffered from debilitating headaches about every six weeks to two months and less severe headaches (which lasted a few hours) four or five times a week. The appellant’s wife said that since the accident, he had had to wear a back brace frequently. The appellant himself did not mention wearing a back brace.
12. The Magistrate gave the following reasons for forming an adverse view of the evidence of the appellant and his wife concerning the frequency and severity of the appellant’s headaches and back pain:
(a)The appellant did not proffer that he had suffered pre-existing back pain. He stated that he did not recall consulting Dr Sharmin, a general practitioner, on 23 March 2010 (three months before the accident) complaining of low back pain radiating into his right buttock and down the right leg, which meant that he was unable to stand for long periods and in relation to which he was referred to a physiotherapist.
(b)The appellant stated that he had difficulty undertaking home maintenance, but in January 2014 he had undertaken paving work, moving and laying pavers and using a Wacker Packer. The Wacker Packer was a sizeable and relatively heavy implement, but the appellant was able to load and unload it from a trailer and operate it with no apparent difficulty.
(c)In July 2015, Dr Andrews, the appellant’s treating neurologist, had given him a prescription for medication to be used when he suffered from severe and disabling headaches, but up to the date of the trial (some five months later) the appellant had not filled the prescription.
(d)The claim for lower back pain was not part of the original claim.
(e)The appellant was able to attend a gym regularly, ride a motorbike to work, enjoy occasional bicycle rides and participate in camping holidays.
(f)The amount of personal leave taken by the appellant did not increase after the accident.
13. These reasons provide a rational basis for the Magistrate’s view that the appellant and his wife had exaggerated the disabilities that the appellant experienced as a result of the accident. Further, as noted at [8] above, it cannot be assumed that every consideration influencing the trial judge’s assessment of credibility will find expression in the reasons. The appellant and his wife were cross-examined extensively and the Magistrate would have considered the whole of their evidence, including cross-examination. Her Honour’s assessment of credibility would have involved observing the demeanour of the witnesses.
Chronology of medical and related events
14. In addition, the Magistrate’s assessment of the credibility of the witnesses (and appellate review of their evidence) would have involved a consideration of their evidence in the context of the medical evidence.
15. On the Monday following the accident, the appellant made an appointment with his general practitioner, Dr Hughes. Dr Hughes noted a complaint of upper neck and lower back pain immediately after the accident, with no prior history of such complaints. On examination, he found some tenderness. He discussed whiplash management.
16. In July 2010, the appellant was with his family at a theme park and participated in a rollercoaster ride with his son. After the ride, he developed an occipital headache and discomfort in the cervico-occipital region.
17. It was not until January 2011 that the appellant complained to a medical practitioner (Dr Hughes) that headaches had started three or four weeks after the accident and were now occurring on a daily basis.
18. From April to October 2011, the appellant attended general practitioners and undertook physiotherapy and osteopathy for his neck.
19. In April 2011, Mr Littler, a physiotherapist, wrote to Dr Sharmin stating that the appellant’s symptoms had commenced after a motor vehicle accident and “then recurred following a mini roller coaster ride” and that the appellant reported “paraesthesia located over his occipit and upper neck ... occasional headaches, nausea and a hot ear”. Mr Littler also stated that examination revealed “minimal facet stiffness” and “mild muscular tension surrounding the neck”. In May 2011, Dr Sharmin noted a complaint of “on and off neck pain/tightness since whiplash 2010”.
20. In May 2011, the appellant underwent an x-ray and CT of his cervical spine and bone mineral density tests, which showed osteopenia but revealed no disc degeneration.
21. In October 2011, an osteopath noted that “(the appellant had) been feeling good ... no neck pain ... still doing exercises ... still some crepitus with them … return as needed…”. The appellant did not return for further treatment by the osteopath.
22. In 2012, the appellant’s wife was injured in a motor vehicle accident which would have affected her capacity to undertake domestic activities, at least until sometime in 2013. She did not return to full-time employment until approximately mid-2014.
23. There were no relevant medical attendances or treatments between October 2011 and December 2012.
24. In December 2012, Dr Hughes noted that the appellant continued to have one or two occipital headaches a month but they were less intense and less frequent than had previously been the case.
25. In August 2013 Dr Brooder, a consultant neurologist, undertook a medico-legal assessment for the appellant’s solicitors. He noted that, after the accident, the appellant developed an intermittent aching and burning discomfort in the cervico-occipital region and associated headache, which was induced or aggravated by prolonged neck flexion and posturing, particularly when tired or undertaking push-ups. The appellant also developed an intermittent transient aching low back pain induced by sudden movement, which occurred about once a month, persisted for 1–2 days and tended to improve with resting.
26. As stated above, around early 2014, the appellant used a Wacker Packer in connection with paving work.
27. In January 2014, the appellant attended Dr Conneely, a general practitioner, who noted that the appellant’s neck had been “OK” although he had experienced a bad headache the previous week after undertaking paving at home. Dr Conneely also recorded a complaint of pain in the lower back/sacrum. In February 2014, the appellant complained of lower back and hip pain and still “had a couple of headaches”.
28. In May 2015, the appellant consulted Dr Andrews, a neurologist, who referred the appellant to Dr Thomson, a radiologist. In June 2015, Dr Thomson performed facet joint injections at the left C3/4, C4/5 and C5/6 levels, which resulted in “only mild improvement”.
29. The appellant attended a gym regularly; he aimed to attend three times a week. Since December 2014, he had commuted to work on a motorcycle. He had been on two motorcycle rides with friends, each of which had lasted for a few hours.
30. The medical and related history is consistent with the Magistrate’s refusal to accept the evidence of the appellant and his wife to the effect that the appellant’s headaches were frequent and sometimes severe. The medical history supports her Honour’s findings of chronic low-level neck pain and associated occasional headaches. There was a period of significant treatment in mid-2011. Otherwise, the appellant generally treated his condition with rest, occasional therapeutic massage and over the counter medication, for which the appellant kept no receipts. Dr Andrews’ 2015 prescription for a potent anti-inflammatory medication was not filled.
Medical opinion
31. Dr Andrews considered it probable that the motor vehicle accident had caused facet joint inflammation at C3/4 to C5/6 and associated headaches. The facet joint injections administered in mid-2013 resulted in some improvement, but the appellant continued to experience occasional severe headaches for which Dr Andrews prescribed medication. There was no disc degeneration or nerve root involvement.
32. The appellant submitted that, in her reasons, the Magistrate made a factual error in that she referred to the facet joint inflammation as having “resolved” following the injections: at [42] and [56]. That was not the case. Dr Andrews referred to “only mild improvement”. However, it is clear from a reading of the whole of the reasons that her Honour accepted that the facet joint injections did not “resolve” the appellant’s symptoms, and that the appellant continued to experience low-level pain and occasional headaches.
33. Dr Brooder concluded that the motor vehicle accident had caused a musculoligamentous injury involving the appellant’s cervico–occipital junction and an aggravation of longstanding intermittent low back pain associated with early degenerative changes at L5/S1. As stated above, in August 2013, Dr Brooder said that the appellant continued to experience intermittent aching and burning discomfort in the cervico–occipital region which was induced or aggravated by prolonged neck flexion and posturing, particularly when tired or undertaking push-ups. In August 2015, Dr Brooder noted that the appellant continued to experience intermittent cervico–occipital pain and associated headaches and intermittent low back pain which was likely to continue indefinitely.
34. Dr Seneviratne, a consultant neurologist who provided a medico-legal assessment on behalf of the respondents, considered that the appellant had suffered soft tissue injuries to the cervical spine that were inflamed as at June 2015, and could be causing ongoing headaches. Dr Seneviratne accepted that the accident had caused soft tissue injury to the lower back but considered that, as at December 2013, the lower back injury had almost completely resolved and by that stage, ongoing lower back symptoms were not related to the 2010 accident.
35. The opinions of the three neurologists supported the Magistrate’s findings.
General damages
36. When considering an appropriate award for general damages, the Magistrate was justified in obtaining some guidance from the decisions of Sidis AJ in Eames v Shain [2012] ACTSC 116 and Master Harper in De Marco v Italo-Australian Club (ACT) Ltd [2010] ACTSC 28.
37. While not generous, the amount awarded for general damages was within the available range.
Interest on general damages
38. Usually, an interest rate of 4% is applied to past general damages: MBP (SA) Pty Ltd v Gogic [1991] HCA 3. The Magistrate was well aware of the law in that regard: see [60]. However, her Honour elected to follow the approach of Mossop AsJ in Dojcinoski v Aleksovski [2015] ACTSC 357 at [161], where his Honour reduced interest by half on the basis that the claim had taken an excessive amount of time (5.75 years) from accident to resolution.
39. The appellant accepted that interest is in the discretion of the court, but initially submitted that, if a court proposed to depart from the usual practice, the parties should be afforded the opportunity to make submissions and to adduce evidence of the reasons for any delay.
40. Ultimately, it was not necessary to consider this submission because an examination of the written and oral submissions made by the respondents to the Magistrate established that the respondents had clearly raised this matter.
Economic loss
41. The Magistrate did not allow the appellant’s claim for past economic loss of $9017.39.
42. The appellant said that he had lost one week of income per year in each of the 5.5 years since the accident. The appellant was entitled to take five individual days of personal leave per year without submitting a medical certificate. The appellant said that, after the accident, he took five days’ personal leave each year because of accident-related injury and he lost the benefit of carrying this leave forward.
43. The Magistrate observed that, both before and after the accident, the appellant availed himself of five days’ personal leave per year. There was no change in the rate at which personal leave was taken. Inferentially, her Honour was not satisfied that accident-related injuries had caused the appellant to take time off work.
44. Accident-related loss of sick leave is compensable where sick leave can be carried forward: Graham v Baker [1961] HCA 48.
45. Although the evidence on this point was ambiguous, it was consistent with the view that, if five days’ personal leave was not taken in a particular year, it was lost. Consequently, even if the appellant had established that accident-related injury had caused him to take time off work and he had utilised his five days’ entitlement to personal leave as sick leave, the loss of that leave would not be compensable.
46. The medical evidence did not suggest that the accident had impacted on the appellant’s earning capacity. In August 2013, Dr Brooder noted that the appellant had been able to continue with his previous full-time employment, that he was not currently prevented or restricted from engaging in employment as a business analyst and that his injuries would be unlikely to prevent or restrict him from engaging in similar employment in the future. However as stated above, Dr Brooder did note that the appellant should avoid prolonged posturing of the head, particularly prolonged extension or forward flexion.
47. On the basis of the medical evidence and the fact that she was not satisfied that the appellant had sustained past economic loss, the Magistrate could have refused the claim for future economic loss, but she allowed a small buffer of $5000. That approach cannot reasonably be criticised.
Domestic services
48. At [66] of her reasons, the Magistrate said:
In relation to domestic assistance, I note that the plaintiff continued to work and to progress successfully in his work at all material times. I note that he was able [to] engage in reasonably strenuous renovation activities. The plaintiff and his wife were witnesses I found to be unconvincing and to have exaggerated the effects upon the plaintiff of the motor vehicle accident. In the circumstances I am unable to accept their evidence in relation to the incapacity of the plaintiff. As a result I do not make an award of Griffith v Kirkemeyer damages.
49. There is no flaw in this reasoning. Like the claim for general damages, the claim for damages for gratuitous domestic assistance depended on the Magistrate accepting the evidence of the appellant and his wife about the extent of the appellant’s disabilities.
50. The medical evidence did not provide any significant support for the appellant’s claim for domestic assistance. Some medical reports referred to the appellant’s assertion that he had limited ability to perform handyman tasks and could not service the family vehicles.
51. Even if this claim was accepted, there was no evidence enabling it to be quantified.
Out-of-pocket expenses
52. The appellant claimed past out-of-pocket expenses of $7882.92, including 23 attendances for remedial massage between September 2013 and September 2015. Medicare had paid part of the out-of-pocket expenses.
53. The Magistrate awarded $2575.04 for out-of-pocket expenses. She reduced the award by the amount paid by Medicare, and disallowed claims for over-the-counter pain medication, remedial massage and interest.
54. The appellant produced no receipts for the purchase of over-the-counter pain relieving medication. He said that Panadol and Nurofen were purchased as part of the normal household groceries and were also used by his wife in connection with her 2012 injuries. Her Honour declined to make an allowance for these medications because she considered that any award would be purely speculative: at [63]. There is no error in that approach.
55. In relation to remedial massage, in August 2013, Dr Brooder opined that the appellant would benefit from a course of further physiotherapy combined with regular gymnasium-based mobilisation exercises under the supervision of a physiotherapist, and would also benefit from continuing with remedial massage on an intermittent basis.
56. The Magistrate was concerned that remedial massages provided only short-term relief and her Honour was not satisfied that the massage was for accident-related injury: at [62]. Her Honour did not elaborate on the latter observation.
57. Given Dr Brooder’s apparent acceptance of the connection between the accident-related injury and remedial massage, and the absence of any contradictory evidence, I am satisfied that it was reasonable for the appellant to undertake remedial massage on an occasional basis between 2013 and 2015. The fact that the massage provided only short-term relief may mean that it would be unreasonable to pursue it indefinitely, but does not mean that it was unreasonable to do so in the period 2013 to 2015.
58. At the hearing of the appeal, counsel for the respondents conceded that the Magistrate should not have disallowed the amount paid by way of Medicare benefit, while noting that Medicare would not be able to recover the disallowed sum from the appellant under s 23(5) of the Health and Other Services (Compensation) Act1995 (Cth). Prior to the hearing of the appeal, the respondents did not notify the appellant that they would be making this concession.
59. There was no reason to disallow the appellant’s claim for interest on past out-of-pocket expenses. The parties agreed that interest should be assessed at 3.5% (50% of 7%) over 5.5 years.
60. $7882.92 (less Medicare benefit of $2392.55 as per page 443 Appeal Papers) x 3.5% x 5.5 = $1057.
61. There is no evidence that any future treatment is necessary and there is no evidence that would enable the Court to assess future out-of-pocket expenses.
62. The appeal should succeed to the extent that the appellant is entitled to past out-of-pocket expenses that include remedial massage treatments in the period 2013 to 2015 and Medicare benefits, ie $7882.92 (rather than the $2575.04 awarded by the Magistrate – an increase of $5308) and interest on past general damages of $1057.
63. In lieu of the sum of $38 675.04 awarded by the Magistrate, judgment should be entered in the sum of $45 040.
Costs
64. The Court has a general discretion in relation to the award of costs, although ordinarily the discretion will be exercised in favour of the successful party. On this appeal, the respondents succeeded on the main grounds. However, the grounds upon which the appellant did succeed resulted in a not insignificant relative increase in the judgment sum. In exercising the costs discretion, I am required to exercise a broad evaluative judgment of what justice requires: Gray v Richards (No 2) [2014] HCA 47 at [2]. In my view, each party should pay its own costs of the appeal.
Orders
65. I make the following orders:
(a)The judgment of the Magistrates Court in the sum of $38 675.04 is set aside.
(b)In lieu, there is judgment for the appellant in the sum of $45 040.
(c)Each party is to pay its own costs of the appeal.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 17 February 2017 |
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