Emma Kate Sims v Jeffrey Robert McRae No. SCGRG 96/1782 Judgment No. 6064 Number of Pages 8 Procedure

[1997] SASC 6064

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, BOLLEN AND DUGGAN JJ

Procedure - courts and judges generally - appeal by defendant in personal injuries action - argued that damages award manifestly excessive - complaint concerning statement by master in his reasons for judgment that an expert medical witness called by defendant was 'conscious of for whom he is required to act' - bias alleged. Held that the remark did not disclose any preconceived view and did not disclose bias by the master; nor was the master required to inform counsel of his perception of the witness in the course of the trial. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293; Vakauta v Kelly (1989) 167 CLR 568; Stead v State Government Insurance Commission (1986) 161 CLR 141; Mahon v Air New Zealand Ltd [1984] 1 AC 808, discussed.

Held further that the master acted within his discretion in refusing an adjournment in order to allow a medical witness to be called by the defendant - defendant's counsel did not refer to the witness in opening and his instructing solicitor had overlooked booking the witness, thus resulting in the witness's unavailability during the week when the matter was listed for trial. Maxwell v Keun [1928] 1 KB 645 at 653; Sali v FPC Ltd (1993) 116 ALR
625 at 628; State of Queensland v J.L. Holdings Pty Ltd (14 January 1997 FC
97/001 unreported), discussed.

Appeal and new trial - appeal - general principles - excessive or inadequate damages - appeal against award for future economic loss - plaintiff 21 year old timber yard worker at time of trial - reduced capacity to perform outside work by reason of leg injury - permanent disability - award of $90,000 for future economic loss not excessive.

ADELAIDE, 7 February 1997 (hearing), 14 March 1997 (decision)

#DATE 14:3:1997

#ADD 24:3:1997

Appellant Emma Kate Sims:

Counsel: Mr M G Steele

Solicitors: Ward & Partners

Respondent Jeffrey Robert Mcrae:

Counsel: Mr S Walsh QC with him Mr A Possingham

Solicitors: Palios Meegan & Nicholson

Appeal dismissed.

DUGGAN J

1. This is an appeal from an assessment of damages in an action brought by the respondent following a road accident which occurred at Mt Gambier on 5th March 1992. The respondent was injured when the motor cycle he was riding collided with a motor vehicle which turned across his path. Liability was admitted and the assessment hearing took place before a master of the Supreme Court.

2. It was argued by the appellant at the hearing of the appeal that the award of $90,000 for future economic loss and that of $2,000 for gratuitous services were manifestly excessive, but most of the argument was directed towards other grounds of appeal which complained that the learned master demonstrated actual or ostensible bias against the appellant's case; that he denied the appellant natural justice by making a finding which reflected on the integrity of the appellant's medical expert witness and which was adverse to the appellant's case without giving the witness an opportunity to meet the criticism; and that he erred in failing to grant the appellant an adjournment to call a further medical witness.

3. At the hearing before the learned master the respondent gave evidence and called two witnesses, the respondent's employer and Mr Marshall, a surgeon who had examined the respondent for medico-legal purposes. Various reports were tendered by consent. The only witness called by the appellant was Mr Jose, a surgeon who had also examined the respondent for the purposes of the litigation.

4. The principal injury suffered by the respondent in the accident was a compound fracture of the left tibia and fibula. The respondent was operated on at the Mt Gambier Hospital and the treating surgeon performed an open reduction and internal fixation of the fracture. Further surgical procedures were required in the period up to the date of trial.

5. The master summarised Mr Marshall's assessment of the respondent's injuries as follows:
"Upon examination Mr Marshall noted that there was a deformity of the lower left leg in that it did not have the same shape as the normal lower right leg: the tibia appeared to be thicker and wider and there was a vertical surgical scar on the front of the leg. There was generalised tenderness around the wound and in the middle and lower portions of the tibia. The left leg was approximately 1 centimetre shorter than the right. At that time Mr Marshall 'noted that (the plaintiff) had a normal range of motion in his knee but there was a loss of motion in the ankle joint. There was approximately 5 degrees loss of dorsi flexion and plantar flexion of the ankle. The sub-taloid movement was approximately 50% of the movement of the right sub-taloid joint'. (Report dated 18 July 1994).
Mr Marshall there expressed the opinion that the plaintiff's condition was stabilised and that he had a 20% loss of function of the left leg below the knee, and that there would be no early degenerative change as a consequence of the injury even though there was a slight deformity of the lower leg. He noted ankle and sub-taloid joint stiffness due to the plaster cast immobilisation and thought there was some slight chance of premature degenerative change in the ankle and sub-taloid joints. In his opinion the plaintiff was bound to continue to have aching in his leg.
The opinions which Mr Marshall had expressed in that report were confirmed by him after a further examination on the 14th of February 1996."

6. The respondent was a general hand in a timber yard at the time of the accident. However when he returned to work 42 days after the accident he could not do the physical work required in the yard and his employer gave him an office job. He was still doing this inside work at the time of trial. He had helped out in the yard on occasions since the accident, but his case was that he is physically incapable of working a full day there.

7. The master concluded that the respondent was "a stoic young man who was doing his best to cope with the consequences of an unfortunate accident which will remain with him for the rest of his life". He then dealt with the medical evidence as follows:
"The only evidence called on behalf of the defendant was that of Mr Jose, who examined the plaintiff on the 18th October 1995. At that time he had the advantage of having access to the previous reports of Mr McCusker and Mr Marshall. From Mr Jose's report it is apparent that the plaintiff told him in the course of their consultation that to work out of his present position and in the yard causes aching in his leg. He also complained of aching in his leg in the mornings particularly when it was cold and said that his left leg tires easily when walking or standing for any length of time. Mr Jose said the plaintiff reported no complaint about his knee or ankle. Mr Jose examined the plaintiff and noted that there was no tendency to exaggerate his symptoms. This is consistent with the evidence given by Mr Marshall and the very favourable impression which I formed of the plaintiff whilst he was giving evidence.An examination of the plaintiff's left ankle showed a marginal restriction in dorsi and plantar flexion assessed by Mr Jose to be less than 5 degrees. He noted no difference in the sub-talar movement when compared with his right ankle, and further noted that the plaintiff did not complain about either movement. Mr Jose noticed a thickening in the lower tibial area of the left leg, which I have previously mentioned. He was advised by the plaintiff that it swells towards the end of each day. Mr Jose assessed the plaintiff's permanent residual disability to be 10% of the use of his left leg below the knee. He thought that aching after uncommon activity might be a reasonable expectation. He agreed with Mr Marshall that there was little likelihood of degenerative changes. He differed from Mr Marshall, however, in that he thought that the plaintiff should be able to go back to his pre-accident work. He said this on the basis that even though it may produce some aching, persistence is likely to enable the plaintiff to work his way through that difficulty. That was Mr Jose's general response to the plaintiff's complaints. He had no hesitation in acknowledging that there was no difficulty at all with the plaintiff continuing for full-time work of the nature of that which he presently undertakes.The evidence given by the plaintiff as to his present deficits is supported by the evidence given by Mr Aston, his employer, who has observed him on a regular basis attempt some work in the timber yard. Mr Aston indicated the difficulties which the plaintiff is seen by him to have and how he has lessened the range of duties which the plaintiff is now required to undertake on those occasions when he does work in the yard. This description of injury from both the plaintiff and Mr Aston is consistent with the opinion given by Mr Marshall. It is inconsistent with the opinion given by Mr Jose in that he seems to think that notwithstanding the significant amount of physical effort the plaintiff put into his recovery at the beginning of the 1994 football season, more should be done, greater persistence and pain should be endured and through it all eventually there will be sunshine and light. Unfortunately, I formed the opinion both from observing Mr Jose in the witness box and noting the manner in which his report has been written that he has been throughout the whole of his involvement with the plaintiff, conscious of for whom he is required to act.Where there is a conflict between the evidence given by Mr Marshall, notwithstanding that there are one or two relatively minor mis-statements and a misunderstanding contained within his report, and the evidence of Mr Jose, I unhesitatingly prefer the evidence of Mr Marshall. It follows that I decline to make the finding pressed upon me by Mr James in his final address that there is no on-going instability at the lower end of the plaintiff's left leg such as to cause him in any way to be significantly limited in his employability in the future and that what weakness there presently is, is muscular only. That proposition which was put strongly in the final address acknowledged that it would be inappropriate for the plaintiff to have a job where he was required to climb and maintain his position at height. It seems to me that that concession significantly conflicts with the finding that I was called upon to make on behalf of the defence.I have proceeded from the evidence of the plaintiff, supported as it has been by a person who sees him on a regular basis, and I have then preferred the medical opinion which is consistent with the evidence given by the plaintiff and Mr Aston as to the plaintiff's real, on-going daily difficulties. I was significantly unimpressed with the evidence given by Mr Jose and the basis upon which he sought to rationalise his opinions whilst in the witness box."

8. I have underlined that part of the reasons which is said to indicate bias on the part of the master.

9. Mr Steele, for the appellant, began his submissions by arguing that there was not a great deal of difference between the views expressed by the two surgeons. He drew attention to the respective views concerning the loss of movement in the ankle joint. Mr Marshall gave evidence of a 50 per cent reduction in movement in this joint; Mr Jose said the movement was normal. The other difference between the two opinions, said Mr Steele, was in relation to the level of disability and incapacity for work. Mr Marshall's evidence was that the respondent would not be able to return to the sort of work he was doing prior to the accident. Mr Jose disagreed.

10. In my view Mr Steele underestimated the differences between the two medical opinions. In particular Mr Marshall's view provided the basis for the learned master's finding that the respondent was a sincere young man who had suffered a quite debilitating injury and who had tried very hard to overcome its effects by testing himself out with the sort of work he was doing prior to the accident and attempting to engage in sports such as football. Despite these attempts he had found himself unable to persist in such activities because of the pain he experienced. Mr Jose stated in his report of 18th October 1995 that the respondent did not tend to exaggerate his symptoms, but his view of the respondent's prognosis differed markedly from that of Mr Marshall. He saw no reason why the respondent should not be able to return to his work in the timber yard. He added:
"After all, I see and I have seen a lot of fractured tibias. Once they are joined they usually go back and play cricket, football, but they do have some minor complaints and I don't really classify this particular injury as different from that. He has achieved a stable bone and fortunately without joint involvement."

11. These differences in views were relevant to the more important issues in the case and it is clear that the master adopted a firm view as to the difficulties which the respondent faced in the future which was contrary to Mr Jose's views.

12. I do find it somewhat surprising that the learned master expressed himself in the manner in which he did when he evaluated Mr Jose's evidence. I do not suggest that a comment such as that made by the master would be inappropriate in all cases. After all it is a fundamental function of the court to assess the credibility and reliability of the evidence and those who give it. Furthermore the master had the advantage not shared by this court of observing the witness and noting his demeanour. Nevertheless neither the witness's report nor his evidence read in a way which would support an allegation as serious as might be inferred from the master's statement.

13. However it is quite another thing to say that the master's comments indicated bias on his part or that, as a result of the comments, "the parties or the public might entertain a reasonable apprehension that he might not bring an unprejudiced mind to the resolution of the question involved" in the case. (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293).

14. The master's remark is not an indication of a preconceived view as was the case in Vakauta v Kelly (1989) 167 CLR 568. It was expressed as part of the master's assessment of the evidence in the case before him. The passage in which the comment appears in the judgment reveals a ready acceptance of the respondent's version as to his disabilities and the attempts he made to overcome them. Clearly his Honour was unimpressed by his perception of the opposing medical opinion, namely, that the respondent should persevere until such time as his problems resolve. The basis of the impugned remark was an opinion formed as a result of observing the demeanour of the witness and reading the medical report as part of the trial process and I reject the suggestion that it disclosed either actual or ostensible bias.

15. It was also argued that the appellant was denied natural justice on the ground that the master should have provided the witness and the appellant's counsel with an opportunity to rebut or comment on the issue of the witness's partiality and the failure to raise the matter in this way was also relied upon as indicative of bias.

16. There may be cases in which the failure to raise potential findings with a witness or counsel will give rise to unfairness. However it would be quite impractical to hold that a judge is required to signal potential assessments of the witness's credibility or the motive a witness might have for giving certain evidence. The court was referred to Stead v State Government Insurance Commission (1986) 161 CLR 141, but that was a case in which the trial judge cut short counsel's submissions by advising that he was going to reject the evidence of a psychiatric expert called by the other side. The trial judge then accepted the evidence of the witness in his judgment. The appellant in that case was prevented from putting his case on an important issue of fact.

17. Reference was also made to Mahon v Air New Zealand Ltd [1984] 1 AC 808. In that case the Royal Commissioner appointed to enquire into the Mt Erebus air disaster in New Zealand found that some employees of the airline had conspired to commit perjury at the inquiry without giving them the opportunity of commenting or calling evidence on that issue. The Privy Council held that there had been a denial of natural justice in the circumstances. But again the point in issue concerned factual questions upon which evidence could have been called and appropriate submissions made. Such issues are to be distinguished from a judge's perception of the witness derived from impressions based on demeanour and the manner in which written opinions are given. In the present case the appellant's counsel at the trial was not misled by the trial judge in such a way as to affect the conduct of the appellant's case. Whereas it might be expected that a party would make specific submissions on evidence which the party wanted the court to accept or reject, the trial judge is not required to express any views during the trial on the reliability of the evidence or the credibility of witnesses which might have been formed in the judge's mind in the course of the trial.

18. For these reasons I am of the view that the master's conduct of the matter did not give rise to a denial of natural justice.

19. Then it was argued that the learned master erred in refusing to adjourn the matter so as to enable the appellant to call Mr Pohl, another medical witness. It was conceded by the appellant that the witness was not available to give evidence because of an error or misunderstanding by the appellant's solicitors who had not booked the witness to give evidence. The witness, who is a surgeon, had committed himself to an operating list during the week of the trial. When he opened the appellant's case counsel did not say he was going to call Mr Pohl.

20. The application for an adjournment was made on the afternoon of Thursday 23rd May 1996 when the appellant's counsel requested that the matter be recommenced on the following Thursday when the witness was able to give evidence. The witness's name had not been mentioned previously in the proceedings before the master. However an attempt was made during the trial to arrange for his attendance when it was discovered that the solicitor had failed to book him. The appellant's solicitor was advised that Mr Pohl could not attend because of his commitment to the operating list. The master said he was not prepared to adjourn to the next week and if the witness was to be called it would have to be on the following day. When the matter resumed on that day counsel for the appellant announced that he had been unable to arrange for Mr Pohl to give evidence and again applied for an adjournment. The application was refused and counsel proceeded with addresses.In an affidavit filed at the hearing of the appeal counsel for the appellant at the trial stated that during the application for an adjournment he advised the master that Mr Pohl was an important witness because of the dispute between Mr Marshall and Mr Jose as to the extent of any incapacity suffered by the plaintiff by reason of injury to the appellant's ankle joint.

21. The granting or refusing of an application for adjournment is discretionary and appellate courts seldom interfere with the exercise of this discretion. (Maxwell v Keun [1928] 1 KB 645 at 653; Bloch v Bloch (1981) 37 ALR 55 at 58). On the other hand interference with the discretion is justified if there is strong reason for holding that a serious injustice has occurred. (Myers v Myers [1969] WAR 19). In recent years it has become pertinent to consider principles of caseflow management. In the joint judgment of Brennan, Deane and McHugh JJ in Sali v FPC Ltd (1993) 116 ALR 625 at 628 their Honours said:

"In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 SLJR 701, at 703; 37 ALR 55, at 58-9. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. Walker [1967] 1 WLR, at 330; Carryer
(1969) 90 WN (Pt 1) (NSW), at 569. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers (1979) 27 ALR 330, at 337 this 'may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing'. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."

22. Principles of caseflow management were discussed more recently by the High Court in State of Queensland v J.L. Holdings Pty Ltd (14 January 1997 FC
97/001 (unreported, available on SCALEplus). In that case the applicants were shut out of a defence following a refusal to permit amendment of the pleadings. In finding that the trial judge had erred in refusing the amendment Dawson, Gaudron and McHugh JJ said:
"In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."

23. Referring to Sali's case their Honours said:
"It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

24. In the present matter I do not think the master was obliged to adjourn the case over to a date which suited the appellant. There had been plenty of warning as to when the case was to be listed for hearing and it was the mistake of the appellant's solicitor which led to the witness being unavailable. It was not until the appellant was well into her case that the witness's name was first mentioned to the master as a potential witness. Even then the master was prepared to allow sufficient time for the witness to come to court, although he refused to adjourn the matter to the following week. I do not think that this is a case in which concern for caseflow management resulted in an injustice to a party to proceedings and I do not think that the appellant has made out a case for this court to interfere with the exercise of the master's discretion.Finally it was argued by the appellant that the awards of damages for future economic loss ($90,000) and gratuitous services ($2,000) were manifestly excessive. The respondent was almost 17 at the time of the accident and 21 at the date of trial. He left school in the first term of Year 12 and obtained employment at the timber yard. He had ambitions to be a carpenter and he prefers outside work. It has been a disappointment to him that since the accident his main job is in the office. He uses a computer but there is no suggestion that he has acquired expertise at a very high level. The respondent was employed originally because he played for a football team which was supported by his employer. The employer has had some offers to purchase his business and there is no guarantee of continued employment for the respondent. The employer gave evidence and confirmed that the respondent had not been able to handle the yard work adequately since the accident. The respondent's present take home pay is $450.00 per week.

25. The master accepted that the respondent incurred an injury which would affect him for the rest of his life and that his injury has made him less able to compete in the open labour market with other unskilled workers. The master said in his judgment:
"There is no doubt that should the plaintiff become unemployed upon the sale of Mr Aston's business, he would be significantly less able to find employment on the open market than would have been the case had this accident not occurred. This is particularly so when one realises that he lives in Mount Gambier which is a cold area where most unskilled work is outside and often involves the timber and farming industries, both characterised by uneven surfaces and thus making mobility difficult."

26. In my view all these findings were justified and, in the light of them, I cannot accept the submission that the award for future economic loss is manifestly excessive. I do not think that the actuarial tables are of a great deal of assistance in this case, but it is worth noting that the amount awarded represents only about four years' remuneration at the respondent's present rate of pay. When that is compared with a potential working life of about 40 years, I do not think it can be said that the allowance for future economic loss is manifestly excessive.

27. There was evidence that the respondent's mother was required to assist him not only after the first operation but also after at least one other operation. For a time she drove him to and from the rooms of the physiotherapist and to and from work. She assisted him to change his dressings. It appears she conveyed him to various other medical appointments and assisted generally during the periods of his convalescence. I do not agree that the award of $2,000 for gratuitous services is manifestly excessive.

28. I would dismiss the appeal.

DOYLE CJ

29. For the reasons given by Duggan J, to which I have nothing to add, I agree that the appeal should be dismissed.

BOLLEN J

30. I agree with the reasoning of Duggan J. I join with Duggan J in surprise about the manner in which the Master expressed himself in dealing with the evidence of Mr Jose. But no bias, actual or ostensible, has been established. My only other comment is that the amount of damages awarded for future economic loss is not in the least excessive.

31. I would dismiss the appeal.