Galletly and FAI Insurance Co Ltd v Rogers

[1998] QCA 96

IN THE COURT OF APPEAL	[1998] QCA 096
SUPREME COURT OF QUEENSLAND

Appeal No. 8250 of 1997.

Brisbane

[Galletly & Anor. v. Rogers]

BETWEEN:

CHARLES EDMOND GALLETLY

(First Defendant) Appellant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

A.C.N. 000 327 855

(Second Defendant) Appellant

AND:

BARBARA JOY ROGERS

(Plaintiff) Respondent

___________________________________________________________________________

McPherson J.A.
Pincus J.A.

White J.

___________________________________________________________________________

Judgment delivered 19 May 1998

Judgment of the Court

___________________________________________________________________________

APPEAL ALLOWED WITH COSTS. JUDGMENT IMPOSED BELOW SET ASIDE AND
ORDER IN LIEU THAT THERE BE JUDGMENT FOR $33,979.57 AND COSTS.

___________________________________________________________________________

CATCHWORDS:	PERSONAL INJURIES - motor vehicle collision - plaintiff suffered 2%
neck disability - damages award of $139,665.31 - plaintiff suffered an earlier injury in 1993 and had asserted not long before the current injury that she was disabled by the 1993 injury - whether the judge took into account sufficiently the consequences of the 1993 injury - where medical evidence of a relatively minor degree of neck disability but plaintiff complained of a severe degree of neck disability.
Counsel:	Mr R Myers for the appellants. Mr L Boccabella for the respondent.
Solicitors:	Clayton Utz for the appellants. Carswell & Co. for the respondent.
Hearing date:	1 May 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8250 of 1997.

Brisbane

Before McPherson J.A.

Pincus J.A.

White J.

[Galletly & Anor. v. Rogers]

BETWEEN:

CHARLES EDMOND GALLETLY

(First Defendant) Appellant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

A.C.N. 000 327 855

(Second Defendant) Appellant

AND:

BARBARA JOY ROGERS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19 May 1998

This is an appeal against an award of damages made in the District Court in favour of the

respondent plaintiff, a middle-aged woman who was injured in a motor collision on 22 April 1995.

According to the argument advanced on behalf of the appellant defendants the plaintiff’s injuries were

fairly minor; the award made was $139,665.31, from which it might be inferred that the trial judge

thought the injuries to be quite substantial. The case is complicated by the fact that the plaintiff suffered

an earlier injury, in 1993, and according to the argument advanced for the defendants before us, she had

asserted, not long before she suffered the 1995 injury, that she was disabled by the 1993 injury. We understood the argument for the defendants to include a contention that the judge did not take into

account sufficiently the consequences of the 1993 injury.

But the essential question is whether what was medically assessed as being a modest neck

disability, perhaps about 2%, could attract such a large award.

Pre-accident condition

It is not easy to reconcile the plaintiff’s account of her pre-accident condition, given in this trial,

with a statement produced for the purposes of litigation arising out of her 1993 accident pursuant to r.

149A of the District Courts Rules. According to that statement the plaintiff had suffered both past and

future economic loss - the latter being an amount in excess of $10,000. Although the precise nature of

the injuries is not explained in the statement, they included substantial trouble with her knees and one

shoulder; her statement said she was "likely to require in the future some arthroscopic treatment both

to her knees and to her shoulder . . .". She also said she had persistent pain in the right foot and that

she had to have her hair cut short as "she could not manage to raise her right arm to shoulder height".

It said that she could not then go on walks and could no longer play, among other things, social indoor

bowls; that is not, as far as we know, a particularly strenuous activity. Her statement said that the

plaintiff "suffers continual pain in both knees, shoulder, elbow, neck and toe". She could no longer

garden or enjoy working on her grazing property and could not attend the theatre. She was said to be

"unable to carry out her domestic duties without significant loss" and had to spend not less than $50 per

week to employ people to do this, claiming $27,750 on that account. The evidence relating to the 1993

accident and its consequences is lamentably incomplete - for example, it does not include the reports relating to the 1993 injuries even of those doctors who saw the plaintiff in relation to both sets of

injuries. But the statement we have discussed presents a picture of significant pain and disability.

The plaintiff gave some evidence in this case about her pre-accident condition, saying that she

had no problems with pain in her left leg, that before the 1995 accident she would perform

"[e]verything", except mustering on horseback, in relation to her grazing properties and that prior to the

1995 accident she went shopping. She said that she did not start working on her property for

"[p]robably 12 months" after the 1993 injury. The plaintiff gave no evidence of having, at the time of

the 1995 injury, any significant disability consequent upon that which happened in 1993. If she in fact

had none, there must have been a rapid improvement in her condition from when the August 1994

statement was produced until the date of the next accident, in April 1995. But if what she put forward

in August 1994 was true, she must surely have been disabled to some extent immediately before she

was injured again.

Legs

The plaintiff’s pleading makes two complaints about leg injury: aggravation of pre-existing

osteoarthritis in the knees and a large haematoma to the left thigh. The former complaint did not enter

into the judge’s reasoning. The plaintiff gave evidence that when she shopped in a supermarket she had

pain in her neck and legs (plural). But the medical evidence suggests that she complained only of

difficulty with the left thigh. There was some difference of medical opinion as to what was wrong with

the plaintiff’s left thigh and it is unclear what the judge’s view of that matter was; his Honour found that

the plaintiff had "ongoing symptoms in her left thigh", but did not say what they were. Dr Weidmann, a neurosurgeon, said there was "diminished sensation to pin prick" in the left thigh; Dr Khursandi, an

orthopaedic surgeon, said the plaintiff complained of pain in the left thigh, and Dr Morris, also an

orthopaedic surgeon, said there was numbness in the left thigh as, in effect, did Dr Cameron, a

neurologist. One would readily enough infer that there was nothing much wrong with the left thigh, but

the plaintiff’s evidence implied that it was pain in her neck and legs which caused her not to go shopping

in a supermarket. On the whole, and in the absence of any clear finding on the matter, it appears to us

that one should proceed on the basis that the symptoms in the left thigh were of numbness, not pain, that

being the majority medical opinion. They therefore seem to have no significance, so far as disability is

concerned.

Neck

The apparent discrepancy between the medical opinions about the severity of the neck injury

and the plaintiff’s evidence about the extent of it creates difficulty. Dr Rudolph, a general practitioner

with whose evidence the judge was particularly impressed, said nothing about a neck injury; he was

the only one of the doctors who had seen the plaintiff, so far as the evidence shows, other than to make

a medical report. Dr Rudolph saw the plaintiff often and presumably would have been in a position, if

he had proper records, to give an account of what it was she complained of from time to time; he gave

no such account. That she had difficulties in areas other than those related to the 1995 accident is clear.

We have mentioned the consequences of 1993 accident; she also said she suffered from asthma.

Further, it may be seen from Exhibit 7 that at about the end of 1995 the plaintiff had X-rays taken, of

her hip joint, the lumbo-sacral spine and chest, and also had a CAT scan done; the reason why these

areas were investigated does not appear from the evidence, but it is reasonable to infer that the plaintiff
had symptoms which were thought (presumably by Dr Rudolph) to require investigation.

The specialists did not, as it appears to us, add, in oral evidence, anything of real significance

to their reports on the neck injury. The neurologists found that movements in the cervical spine were

"slightly limited in all directions" (Dr Weidmann) or "very mildly restricted in all directions" (Dr

Cameron). The orthopaedists found that there was limitation of all neck movements to about 75% (Dr

Khursandi), and that she had "a fairly good range of motion" (Dr Morris). In so far as there are

differences between these various observations, they remain unresolved by the judge’s reasons. We

proceed on the basis that the doctors found limitation of movement in the neck, but not to any

considerable degree. This is of course of importance, as being a more objective indication of the extent

of disability than simple reports of constant pain.

There were two quantitative estimates of the disability: Dr Khursandi estimated 2½% of the

total body function and Dr Morris 1½%. Counsel for the defendant noted that the judge quoted Dr

Morris as writing of a 15% disability; that, the doctor later explained, was a mistyping for 1.5%.

Counsel’s point was that the judge made no reference to the correction of the percentage, which

perhaps suggests that his Honour did not regard this attempt to measure disability as helpful. Dr

Weidmann did not expect any significant long-term disability. When questioned about that, he said in

effect that although the condition the plaintiff had ordinarily resolved itself, in some instances it did not.

Dr Khursandi "could not rule out" that the plaintiff would have some permanent disability.

On the plaintiff’s version of events, the disability from which she suffered was substantial indeed - although it must be noted that she did not always discriminate between what was claimed to be the disability due to the neck alone and what was claimed to be the disability due to the neck and leg (or

legs). She said that before the accident she would perform everything by way of physical farm work

on the farm properties except mustering on horseback (an answer to which we have already referred).

She said she was not presently able to do any physical work on the property, that she had done no

shopping since the accident, that she got "severe pain" in her neck from sitting at a computer, she had

a lot of trouble sleeping because of the pain in her neck and that she wanted to give up her computer

work completely because (as we understand what she said) the pain in her neck was so bad. She said

that when she returned to work a few weeks after the accident her pain was "fairly severe" and that it

had not improved much since then. She had difficulty with cleaning, vacuuming, hanging clothes on the

line, washing and ironing, and her husband had to do most of the housework; she suffered severe pain

if she turned her neck suddenly. No-one was called to support any of these complaints.

All the appellants can do to advance the submission that the complaints are exaggerated is to

point to the medical reports. All the doctors called, except Dr Morris, whose evidence was not

challenged by any cross-examination, saw her at the behest of the plaintiff’s solicitors. One would not

suggest that that circumstance would tend to make them lean either way, but it is remarkable that none

of them gives an assessment of the plaintiff’s neck disability which has any close resemblance to that

given by the plaintiff herself.

No doubt being conscious of this, the judge found that:

". . . whatever the medical diagnosis may be . . . she has accurately informed this Court
of the problems she has".

We should add that the judge attributed to Dr Weidmann a statement that "in essence, he accepted [the plaintiff’s] complaints to be genuine". We have searched Dr Weidmann’s evidence for such a statement

and cannot locate one. What the doctor said which the judge might have had in mind appears from the

following question and answer.

"If she was still complaining of the same symptomatology, headaches and neck pain, would you think that by now her condition is likely to be permanent?-- Yeah, well, that would be over two years now since the accident, so I’d say that it’s likely to be permanent to some degree".

Dr Weidmann also said he could "[n]ot really" say whether the plaintiff fell within the small group (2%

to 5$) of people who do not improve after such an injury.

Conclusion

The case was one in which the doctors found on examination a relatively minor degree of neck

disability and the plaintiff said in effect that she has a severe degree of neck disability. All the doctors

had the opportunity of hearing the plaintiff’s complaints when they interviewed her as well as the

advantage, which the judge did not share, of having examined the injured area and the advantage, which

the judge did not share, of relevant expertise. We can see no sensible reason for rejecting the fairly

harmonious opinions of the four specialists called and assessing the plaintiff’s disability on the basis that

it was quite severe. To do so, one would have to assume that the judge could form a better idea of the

plaintiff’s disability, from merely hearing her evidence, than any of the experts; this seems to us an

improbable proposition.

In reaching our conclusion we are influenced by the circumstance mentioned above, that in 1994

the plaintiff complained of moderately serious disability, but did not suggest when she gave evidence in

this case that she had any disability at all in 1995. It is our opinion that the judge should have found that the plaintiff had no significant disability in the left thigh and only a mild disability, of the order of 2%,

resulting from her neck injury. The notion that such a disability, in the case of a middle-aged person,

could produce an award in the vicinity of $140,000 is, as it seems to us, one which has only to be stated

to be rejected.

The judge awarded $20,000 for pain and suffering and various other sums for economic loss.

There was $40,000 for future lost earnings, $1,000 for future pharmaceutical costs and $12,000 for

work the plaintiff’s husband had to do at home and on the farm, and the munificent sum of $50,000 for

future care. In our opinion one would not usefully, having arrived at the view that the judge should have

accepted the medical assessment of the plaintiff’s disability as not being severe, make arithmetical

calculations from that premise. We would reduce the award for pain and suffering to $10,000 and

award $20,000 under all the other heads except special damages. As was pointed out on behalf of the

appellants, the largest item of the damages was the purchase of special massaging equipment; that was

unsupported by any medical evidence and cannot be allowed. The award then becomes:

Pain and suffering	$10,000.00
Interest	$ 155.00
Economic loss	$20,000.00
Special damages	$ 3,357.57
Interest	$ 467.00

$33,979.57

It follows that there is no occasion for considering the respondent’s application on appeal to
amend the plaint to increase the claim for damages to more than the amount of $50,000 which is made

in it.

We allow the appeal with costs, set aside the learned primary judge’s judgment and order in

lieu that there be judgment for $33,979.57 and costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8250 of 1997

Brisbane

[Galletly & Anor. v. Rogers]

BETWEEN:

CHARLES EDMOND GALLETLY

(First Defendant) Appellant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED
A.C.N. 000 327 855

(Second Defendant) Appellant

AND:

BARBARA JOY ROGERS

(Plaintiff) Respondent

McPherson J.A.
Pincus J.A.

White J.

Judgment delivered 19 May 1998

Further Order delivered 5 June 1998

Further Order of the Court

APPLICATION FOR INDEMNITY CERTIFICATE UNDER SECTION 15 APPEAL

COSTS FUND ACT 1973 REFUSED.

Counsel:	Mr R. Myers for the appellants Mr L. Boccabella for the respondent
Solicitors:	Clayton Utz for the appellants Carswell & Co. for the respondent
Hearing Date:	1 May 1998