Franklins Self Serve Pty Ltd v Goodie

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 7889 of 1997

FRANKLINS SELF SERVE PTY. LTD. & ANOR.

Appellants

ALBERTHA HENDRIKA THERESA GOODIE

Respondent

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JUDGES:	WINNEKE, P., BROOKING and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 1998
DATE OF JUDGMENT:	14 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 44

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Tort - Negligence - Damages - Rack of steel rakes falling on plaintiff in supermarket - Continuing neck-aches and headaches resulting from more vigorous activities - $14,000 for past and future pain and suffering and $5,000 for future physiotherapy not “wholly erroneous estimate”.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. A. Ramsey	Norris Coates & Hearle
For the Respondent	Mr. J. Jordan	Saines & Partners

WINNEKE, P.:

I will invite Mr Justice Ormiston to give the first judgment in this appeal.

ORMISTON, J.A.:

This appeal arises out of an accident to the respondent caused by the fall of a stand of steel garden rakes at the appellants' store at Wendouree on 30 May 1996. The rakes fell on the respondent's head in circumstances where she was quite unprepared for the sudden blow from above, which resulted not only in a profusely bleeding cut to her scalp but also a soft tissue injury caused by the rakes jarring her head down hard, which has in turn led subsequently, as the judge found, to persistent neck pain and headaches.
Neither at the trial nor on this appeal was there any issue as to liability, the only issues being whether the damages were properly assessed by the learned trial judge and whether the course of cross-examination was correctly directed by him.
After a trial extending over some two days the learned judge awarded damages in the total sum of $21,225. That sum consisted of $14,000 for past and future pain and suffering and loss of amenities of life; $1,708.40 for the past expenses of attending a physiotherapist; $5,000 for future physiotherapy expenses, which were based on some 16 to 20 visits a year for the rest of the respondent's life, appropriately discounted; $116.55 for medical expenses; and $400 damages in the nature of interest, which one may fairly assume, having regard to its quantum, was confined to past damage.
The grounds of appeal are confined to two issues: one, that the award of damages was manifestly excessive, and, two, that the learned judge erred in law by requiring appellants' counsel in the course of cross-examining the respondent to show an entire surveillance videotape before being entitled to cross-examine her as to any part of the contents of that videotape.
The facts giving rise to this appeal can be seen from the evidence given at the trial. The only oral evidence came from the respondent's side, consisting of her own and her son's evidence and that of a specialist surgeon, Mr Pryor. There was also tendered reports by Mr Pryor, that of a general practitioner, Dr Crook, and two by a physiotherapist, Mr Doddrell. For the appellants, the only evidence tendered was the videotape and a report by a specialist surgeon, Mr Battlay.
The respondent went to her general practitioner shortly after the accident. He applied surgical glue to a one centimetre laceration, which has caused no long- term problems. Dr Crook told her to take painkillers every three to four hours but it is not clear if the respondent complained of neck soreness on the first visit. Certainly on her next visit, on 3 June 1996, she complained of neck soreness. Painkillers were prescribed and he advised her to apply heat to the area. The respondent said she spent most of the first week or so in bed, but gradually returned to housework. On 24 June Dr Crook referred her for physiotherapy and took some x-rays, but they revealed no abnormality. However, the pain has continued and she has continued attending the physiotherapist Mr Doddrell on a regular basis thereafter, in fact 45 times in the year or so before the trial, and was still attending him at the time of trial, although perhaps not so frequently. She has not had any further medical treatment and saw Mr Pryor only for the purpose of these proceedings.
It seems that has felt the need for physiotherapy treatment every few weeks, whenever her neck ache and the associated headaches have returned. So she had seen the physiotherapist, as I said, 45 times in 17 months. Mr Doddrell reported her complaints that her neck movements were restricted and she had tenderness to the left zygapophyseal joints. Mr Pryor considered that she would need further intermittent physiotherapy.
The respondent was a strongly built widow aged 56 at the time of the accident. Her husband had died a little over one year earlier. She had been born in Holland but came to Australia at the age of 14. She lived in a three-bedroom house on a quarter acre block, or thereabouts, but was not then employed. Of her five children, one lived down the street and was able to give some help to her. She enjoyed gardening greatly, working in her garden all day, as well as keeping her house meticulously tidy, almost "unbearably" so, according to her son. She had had some heart problems leading to an "infusion by-pass", as she called it, about two years earlier. Her other activities included walking, swimming, crochetting and playing darts. She did not suggest she was unable to do any of her favourite activities after the accident; only that she was much restricted and movement of her neck led thereafter to headaches which would last several hours and also were described by her as "really bad", requiring the use of painkillers, the application of oil, the use of bead-bags and then, if unsuccessful, her return to the physiotherapist for some further treatment. Otherwise, the neck injury itself, she said, was only like a low-level, constant toothache.
Her difficulties, it seems, may in part be seen as the consequence of the fact that she has been unwilling to give in to this pain and its consequences, so that she has tried all her former activities in one way or another, especially her particular love, gardening. She still cleans the house. So she said she vacuumed the house, but only half of the house at one time and half at another. She cleans the base of the shower with difficulty but each time that leads to the aggravation of her neck pain and headaches. She cannot take a mattress off her bed without assistance. She cannot now climb a ladder to clean the spouting. She has difficulty turning her head in her car. When shopping, she gets her daughter to carry heavy things into the house. Even sitting causes problems if she leans forward while knitting or crochetting. She has reduced her visits to the pub where she played darts from three nights each week to one because it ordinarily leads to headaches. She still works in the garden, but not for the long hours she used to. She might stay outside for an hour or two, but then go in and lie down for a while. She admitted that she still does some vigorous work in the garden, even removing shrubs and trees, but not any more with a crowbar. She mows the lawn but cannot start the mower herself. However, each time the consequences of these activities are the same - aggravated neck- and headaches.
The respondent explained her willingness to undergo this form of pain by saying: "I can't give up life just because I have a sore neck." It would seem that the learned trial judge accepted that explanation and it was undoubtedly the reason for the conclusions he reached on the question of damages.
Of the medical evidence, Dr Crook said that he had not seen her for some time. The physiotherapist gave some evidence of her complaints and some estimate, which may not be of an expert kind, that she may need some further treatment in the future. The only expert evidence of her present condition given on behalf of the respondent was that given by Mr Pryor. Mr Pryor's conclusions were as follows:
"Mrs Goodie sustained a jerking injury, with impact injury causing laceration to the scalp and a soft tissue joint injury to the outer joints of the left side of the neck. Since that time she has been troubled by restriction of neck movement and referred headaches. She has become somewhat slowed in her working life. She finds that intermittent physical therapy eases her symptoms and finds this of value even some 12 months or so after the accident. As regards the longer term, the likelihood is that she will have some persisting aching in the neck and restricted function and periodic headaches. Serious deterioration in the future is possible, but unlikely. It is more likely that she will continue to have her present problems and to need intermittent physical therapy treatment. The injuries have slowed her down and partly restricted her working capacity. There are no major long-term sequelae to be anticipated."
On the other side, the appellants tendered a report from Mr Battlay. The learned judge did not accept his evidence in preference to that of Mr Pryor and so it is unnecessary to set it out in detail. It is sufficient to say that, though he thought that the respondent may have had a soft tissue injury, he did not see any physical basis for her ongoing complaints and thought it unlikely that any long-term disability would result, thus negating the need for frequent physiotherapy in the future.
There was, of course, also the videotaped record of the respondent working one day with friends in her garden. It went for some 1 hour and 20 minutes and showed quite vigorous movements by the respondent - chopping, cutting, sawing and removing the branches of trees and shrubs, although it would not seem inconsistent with her oral evidence, as the learned judge found.
The events giving rise to the second ground may be shortly stated. After extensive cross-examination as to the respondent's condition, counsel for the appellants sought to show some five minutes of the videotape. That short portion of the tape was played, in fact it appears that it was five minutes of sweeping at the end of the gardening or tree-clearing episode, and the respondent identified the events as at a time when she pulled up some trees or shrubs. Counsel was about to ask some further questions when counsel for the respondent intervened, saying that the tape was a "continuous film". The judge said that, if it was, it should be "shown in its entirety", and explaining:
"If it is another passage on another occasion, yes, it is fair enough to split it but if you are just showing what is one continuing filming session then it should all be shown before you cross-examine the witness about it."
The video was in fact for all practical purposes continuous in subject matter and extended, as I have said, for 1 hour and 20 minutes. Counsel complained that he should not be restricted in how he showed the film to the witness for the purposes of cross-examination. The learned judge said:
"I will direct the way in which you cross-examine when it comes to
extrinsic materials."
It appears the tape had not been started at the beginning, which the judge described as "improper" and he asked for an assurance that every piece of the film thereafter would be shown. Counsel objected, but the whole of the 1 hour 20 minutes of the tape was in fact shown on the following morning. It showed the respondent engaged for a long time in removing bulky and moderately large shrubs from her garden. Nothing else appeared on the videotape which was effectively confined to the episode on the one day. Cross-examination both before and afterwards consisted of ready admissions, with the explanation that afterwards she had suffered more neck- and headaches.
In his judgment, the learned trial judge found in favour of the respondent, accepted her version of the events and preferred her medical evidence. He found:
"That the plaintiff is an uncomplaining woman who bears pain. She has underlying nuisance value pain most of the time. Activity exacerbates her pain leading to significant headaches which requires physiotherapy or she uses self medications such as hot showers, Chinese herbal oils or a heated wheat bag around her neck. Self treatment gives her temporary relief.
The plaintiff strikes me as a perfectionist in her home and garden. Early in her cross-examination she conceded she worked through pain to do her house work. She would break up the work. She continued to pursue her gardening even to the extent of mowing the lawn. She said, without prompting, that on one occasion she had spent a day in the garden when she had removed a shrub. She said that she had obtained quotes for removing the shrub but she could not afford someone to have it removed. She said she would work through the pain; however it led to increased neck pan and severe headache. She made concessions as to what work she had actually done.
An inordinately long video was produced by the defendant. It went for 1 1/2 hours. The video showed the plaintiff doing moderately heavy gardening activity including sawing and lifting of a light to moderately heavy nature. None of these activities were inconsistent with what she said she could do. Further during the course of the video there was a nine-minute break. She stated in evidence that during that break she went inside and took painkilling medication. I accept she did do that. I found the film was of no assistance to the defendant. The impact on me was minimal.
The plaintiff's son gave evidence that the plaintiff works through her disability, is much slower and is prone to stay in bed in the morning. Her head and neck contrasts with what she was previously like. Previously, she was regularly out of bed in the early hours of the morning."
The learned judge then summarized the evidence of Mr Doddrell, Mr Battlay and Mr Pryor. He concluded:
"Having heard Mr Pryor and studied him under cross-examination I accept the accuracy of his opinion. Mr Pryor is a surgeon of good standing, he is very capable and I prefer his evidence where it differs from Mr Battlay. I am satisfied the plaintiff will suffer from the permanent effects of mild neck pain and headaches. She is a woman likely to remain active and such activity will lead to an increase in pain and headaches requiring intermittent treatment."
It was for that reason the learned judge found that she would need 16 to 20 visits a year to the physiotherapist for the respondent for the rest of her life, whereby he reached the figure, after appropriate discounting, of the sum of $5,000 for that element of the damages.
The first ground of appeal asserts that the damages awarded were manifestly excessive. I cannot agree. As to the estimate of future physiotherapy expenses, that estimate of $5,000 depends on the acceptance of the respondent and Mr Pryor as witnesses of truth. If they be accepted, then I can see no reason to find fault with what the judge awarded for that loss.
Counsel for the appellants argued that for various reasons neither of the respondent's witnesses should have been accepted as witnesses of truth and in preference the evidence of Mr Battlay should have been accepted. This was pre- eminently a matter for the trial judge. He had the benefit of seeing, in particular, the respondent give her evidence and also, of course, of seeing Mr Pryor cross- examined. In these circumstances I see no reason why he should not have accepted the view they expressed with respect to the duration of or the frequency of future physiotherapy treatments.
As to pain and suffering and loss of amenities, counsel fairly recognized the difficulty facing the appellants' case as he accepted that appellate courts will only review awards of this kind on a limited basis, assuming that no error of principle is apparent. As it was recently expressed by the President in CSR Readymix Australia Pty. Ltd. v. Payne (C.A. 23 May 1997 unreported) at p.4:
"Where it is alleged on appeal that a judge's assessment of damages is manifestly excessive, an appellate court, before it interferes, should be satisfied that the judge has acted on a wrong principle, or has misapprehended the facts or, for those or other reasons, can be seen to have made a wholly erroneous estimate of the damages suffered."
The matter was also examined by a Full Bench of this Court in Mobilio v. Balliotis (C.A. 10 November 1997 unreported) where Brooking, J.A., in considering a not dissimilar question, had cause to analyse a large number of authorities on appellate review of awards of damages, concluding that those authorities, at least in so far as damages for pain and suffering and loss of amenities of life are concerned, require an appellate court to be satisfied that the judge has made a "wholly erroneous estimate" before allowing an appeal, unless there be some other error of principle or of fact: see at pp.7-12 of his judgment. Although Phillips, J.A. and I differed as to his use of the word "discretionary" in that judgment in this context, no member of the Court who dealt with the issue differed. The test therefore to be satisfied is whether the award is "wholly erroneous" or, as the President and I preferred, "plainly wrong", but the difference is of no consequence.
In the present case, as I have said, counsel for the appellants recognized the difficulty that his clients faced in seeking to overturn the award made in this case. In fact he so clearly recognized it that he found difficulty in mounting an argument that, having regard to the learned trial judge's findings, the award was manifestly excessive. Instead he sought to demonstrate that the judge should not have accepted the respondent and her witnesses, saying that, having regard to the video film and her answers and her activities, this was not a case where she was suffering the neck aches and headaches to the extent she had alleged in the course of her evidence and so the judge was wrong in accepting her evidence and that of Mr Pryor as to her condition at the time of trial and the likelihood of that condition continuing into the future. There was, however, no ground directed to this question as to which evidence was properly accepted and no challenge made in the grounds of appeal as such. Whether or not those challenges could fairly now be made, I am of the opinion that nothing put in the course of argument by counsel, who wrestled valiantly with the difficult circumstances with which he was faced, showed that this was a case where the judge's estimate of damages was plainly wrong or that what he had done or arrived at was a wholly erroneous estimate.
In respect of these matters of pain and suffering and the like, they are largely matters of impression and estimate and I am not prepared to say that the judge was wrong. Nothing which counsel sought to rely upon in the course of his argument as to acceptance of the witnesses pointed in the opposite direction. In fact I would conclude that in essence he misunderstood the way in which the case was put, if I should be so unfair to him in saying that. The case was not put that she could do nothing; the case was put that what the respondent did was done with either difficulty or with the consequence that thereafter there would be neck aches and headaches which were of a kind which it was necessary to treat by a course of physiotherapy and that that condition continued not merely up to the time of trial but was likely to continue in the future. I am not satisfied that that was shown to be wrong or that the judge made a wholly wrong estimate of the damages in this case. I would dismiss this ground.
Then there was a further ground raised as to the admission and use of the videotape. In my opinion, and notwithstanding what counsel has said about it, it is sufficient to say in the circumstances of the case and having regard to the evidence given, in particular the cross-examination both before and after the showing of the videotape, that I do not believe that there was any miscarriage of justice resulting from what occurred even if I were to consider that there was any error of principle or practice. I would dismiss the appeal.

WINNEKE, P.:

For the reasons given by Ormiston, J.A., I too would dismiss this appeal.

BROOKING, J.A.:

I agree.

WINNEKE, P.:

The formal order of the Court will be that the appeal is dismissed with costs.
(Discussion ensued re costs.)

WINNEKE, P.:

We think it would not be appropriate to make any special order in this case and the orders will stand. The appeal is dismissed with costs.

[1998] VSCA 44

14 September 1998