Garlick v Scordilis
[2000] TASSC 79
•28 June 2000
[2000] TASSC 79
CITATION: Garlick v Scordilis [2000] TASSC 79
PARTIES: GARLICK, Cameron Gary
v
SCORDILIS, Nick
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 3/1999
DELIVERED ON: 28 June 2000
DELIVERED AT: Hobart
HEARING DATES: 22, 23 March 2000
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS:
Damages - Particular awards of damages - Tasmania - Fractures of rib cage, sternum and two thoracic vertebrae in a 19 year old man already severely disabled by osteoporosis - Substantial recovery from initial injuries but further disabled by progression of illness - Some cosmetic aggravation of chest deformity - General damages $25,000.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Appellant: D J Gunson and E N Nylander
Respondent: K E Read
Solicitors:
Appellant: Gunson Pickard & Hann
Respondent: Phillips Taglieri
Judgment Number: [2000] TASSC 79
Number of Paragraphs: 49
Serial No 79/2000
File No FCA 3/1999
CAMERON GARY GARLICK v NICK SCORDILIS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
SLICER J
EVANS J
28 June 2000
Order of the Court
Appeal dismissed.
Serial No 79/2000
File No FCA 3/1999
CAMERON GARY GARLICK v NICK SCORDILIS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
28 June 2000
Introduction
The appellant was injured in a motor vehicle accident on 6 November 1993. He was then aged 19 years. He was a front seat passenger in a vehicle which ran off the road. Liability was not in issue. By a judgment dated 24 December 1998, the appellant's damages were assessed in the sum of $25,103. Of that sum, $25,000 was general damages for pain, suffering and loss of amenities of life.
By this appeal, the appellant contends that the assessment was manifestly inadequate and that certain findings that led to the making of the award were erroneous.
The appellant's credit was not in issue. His evidence of pain and disablement was substantially accepted by the learned trial judge. The central issue at trial was whether that pain and disablement was due to the respondent's tortious act or due to another cause that arose after the accident.
The appellant's history
Life has dealt the appellant a cruel blow. Since shortly after his birth, he has suffered from acute eczema and asthma. These conditions required, and still require, the administration of steroids upon which the appellant is dependent. This dependency has retarded his growth and caused severe osteoporosis. He is only 150cm tall and weighed only 36 kilograms at trial. During his childhood, the asthma led to many admissions to hospital. With the development of osteoporosis, the appellant suffered many fractures either as a result of minor trauma or spontaneously. At the time of the accident in November 1993, his bone density was 60 per cent of normal. The learned trial judge found that before the accident the appellant sustained the following fractures:
· the coccyx in October 1989;
· C3, C4 and C6 in 1992;
· C7 in 1992.
In addition to the foregoing, the appellant suffered from a congenital deformity known as "pigeon chest" which was a cosmetic blemish but posed no physical problem. All of these disabilities, which the learned trial judge found the appellant had managed with "admirable stoicism" and which predated the accident, interfered with the appellant's schooling and later reduced his capacity to earn income. The learned trial judge found that for some three years prior to the accident, the appellant had been employed as a casual employee at the Myer store in Hobart. He commenced his employment there as a casual during the 1990 Christmas season and was subsequently re-engaged from time to time when needed. In the 12 months before the accident, the appellant averaged 15 - 18 hours work per week at Myer. It was not disputed that his capacity to earn income diminished some time after the accident, but it was disputed that such diminution was causally linked to the accident.
The accident and its immediate sequelae
The appellant was asleep at the time of the accident and had no recall of the relevant events. He was taken to hospital but not admitted as an in-patient. X-ray examination reported no new fractures, but suggested that there was a possible fracture in the region of T2 - T4. Subsequent radiological evidence showed that these x-rays were inadequate. There was evidence that plain x-rays provide a poor radiological examination for a person with severe osteoporosis. Two days after the accident, the appellant consulted his general practitioner, Dr Ponsonby. An increase in the "pigeon chest" deformity was noted. At that time the x-rays taken at the hospital were not available to Dr Ponsonby.
About 10 days after the accident, the appellant consulted his treating rheumatologist, Dr Graham. He ordered a bone scan which was carried out on 18 November 1993. This revealed fresh fractures of the first six ribs on the right side, fractures of the first three ribs on the left side, a dislocation of the manubrio-sternal joint, as well as fractures of the third and fifth thoracic vertebrae. The scan also disclosed a possible fracture of the twelfth thoracic vertebrae. At that time, the appellant complained of pain in the region of all these fractures. The appellant described his pain as severe. He took analgesics for about six months after the accident to combat this pain. Although the plaintiff resumed taking analgesics in September 1998, five years after the accident, there was no evidence of him having taken analgesics between then and a period of about six months or so after the accident in November 1993.
The appellant's post-accident history
The pain occasioned by the tortious act prevented the appellant returning to work at the Myer store. About a year after the accident, he started work with his father, who ran a fire protection agency. As part of his rehabilitation program, the appellant did a graphic design course, and in November 1996 he started his own graphic design business, but it was not a success. The appellant cannot sit in one position for more than an hour without experiencing back pain such that he is compelled to walk about for 10 to 15 minutes. The appellant cannot work, on average, more than five to six hours a day. The learned trial judge found, "There is no prospect of his condition improving so as to increase his capacity to engage in remunerative employment".
The learned trial judge set out in his reasons for judgment at 3 the following description of the appellant's disabilities at the time of trial:
"The plaintiff complains of pain around the middle of the back tending to radiate up and down. He said that he had not suffered from back pain immediately prior to the accident, but that it has persisted since that time and now requires medication in the form of Panadeine Forte between twice and eight times each day. Just before he had first begun working for his father, he had been extremely depressed; but although work proved to be a distraction from his depression, he said his back pain became worse with activity. He is able to work about five hours per day, but about once a month does not feel up to going to work at all because of his pain. He attempted to do some sub-contracting work for a Mr Ian Rumney in June 1998 which involved full time work for about a month, but he found it too arduous and had to give it up. He has been told not to lift weights of more than 5 kilograms. He says his pain is confined to his back, but that he does get pins and needles in his arms if he raises them in such an activity as washing up or hanging clothes out on the line. He is engaged to be married and is able to do some domestic jobs, including mowing the small lawn at the flat he occupies with his fiancee. Prior to the accident, he used to do some mechanical work on motor cars as a hobby, but such activities as stripping down an engine cause pain. Driving for periods longer than an hour exacerbates his back pain and he is a restless sleeper, generally obtaining only about four hours per night of solid sleep."
The assessment
The learned trial judge found that the respondent's tortious act caused the appellant's "pigeon chest" to become more pronounced, that this was permanent and that although it caused no physical disablement, the appellant was entitled to compensation for the exacerbation of a cosmetic blemish in respect of which he was understandably sensitive, even before the accident.
The crux of this appeal arises out of the following impugned finding in the reasons for judgment at 8:
"In my opinion, the plaintiff suffered injuries which caused considerable distress and pain for a period in the order of eighteen months before settling down to a degree of discomfort which has now largely been overtaken and increased by the progression of osteoporosis which has caused other pain-producing fractures. The injuries in the car accident no longer represent any significant restriction on his capacity for work, that capacity being limited primarily by his other physical disabilities. He is entitled to moderate damages for the physical pain and suffering endured in those eighteen months, as well as the anxiety and depression associated with them. He is also entitled to not insubstantial damages for the cosmetic injuries which have cruelly emphasised his existing deformity, but I am unable to make an award on the basis that his continuing pain and his current work limitations are consequential upon the accident. Such economic loss as he suffered as the result of it has been compensated by the payment of a disability allowance for a period a little longer than that during which he was disabled by the injuries sustained in the accident."
Notwithstanding the undisputed evidence of pain and disablement, the above finding was made upon the basis that apart from a relatively brief period after the accident, such disablement was not shown to have been caused by the respondent's tort. This proposition the appellant challenges by the notice of appeal that relies upon the following grounds.
Grounds of appeal
"1 The learned trial judge's assessment of damages was inadequate.
2 The learned trial judge's finding that the injuries that the Appellant suffered in the motor vehicle accident on the 6th day of November 1993 had, after a period of 18 months, settled down to a degree of discomfort which had been overtaken and increased by the progression of osteoporosis which had caused other pain producing fractures, was against the evidence and the weight of the evidence.
3 The learned trial judge's finding that the Appellant has not suffered any economic loss after 18 months after the 6th November 1993 was against the evidence and the weight of the evidence.
4 The learned trial judge's finding that the Appellant will not suffer any future economic loss was against the evidence and the weight of the evidence.
5 [Abandoned upon the hearing of the appeal]."
All these grounds encompass a single issue, viz, whether, after about mid-1995, the appellant's pain and disablement has been caused by the respondent's tortious act.
It appeared from the evidence that after the accident in November 1993, the following fractures were detected:
· T7 (crush) in 1996;
· T11 in 1998.
The learned trial judge found at 7 - 8 of his reasons for judgment:
"I am satisfied that the car accident of November 1993 caused considerable pain to the plaintiff for a period of about six months in respect of his chest, and that although he does not appear to have had any specific asthmatic complication in that time, his debilitated respiratory system must have contributed to additional pain. His description of feeling pain like a knife thrust on breathing is probably not exaggerated. I am also satisfied that for a period of twelve or more months he suffered a significant pain in the upper thoracic region due to the injuries he had sustained to the upper vertebrae. All these injuries prevented him from working and caused anxiety and distress throughout that time. Some time in 1996 he suffered a fracture of the seventh thoracic vertebrae and this added to the residual pain he was still experiencing in the upper thoracic spine. But this new fracture became the site of the pain he feels now and which is presently limiting his activities. … I am unable to conclude, however, that he has any more than minimal residual discomfort from his injuries sustained in 1993 or that they have significantly reduced his capacity for work." [Emphasis added.]
During the course of argument on the appeal, Mr Gunson, senior counsel for the appellant, contended that the finding should have been that the appellant's pain was due in some undefined part to the tortious conduct and due in some undefined part to other causes. He submitted that his Honour's sentence, "but this new fracture became the site of the pain he feels now …" is erroneous and should have been, "but this new fracture became one of the sites of the pain he feels now …". He also submitted that the finding, "I am unable to conclude, however, that he has any more than minimal residual discomfort from his injuries sustained in 1993" should have been to the effect that the appellant suffered from substantial pain and discomfort from his injuries sustained in 1993. This is the nub of the matter.
The evidence
The learned trial judge found that in the accident the appellant suffered (inter alia) fractures at T3 and T5, as well as possibly at T12. This finding was not challenged. It is in accordance with the general consensus of expert opinion evidence on this point. Because of his general condition and many admissions to hospital, the appellant was understandably vague in his evidence about where and when he experienced pain after the accident. In his evidence-in-chief, he said that immediately after the accident, he suffered from excruciating pain in his chest when he took each breath. This was no doubt due to the fracture of many ribs. He described the pain as extremely severe and said that it lasted for about six to eight weeks.
According to the evidence of Dr Ponsonby, the appellant returned to see him the day after his initial consultation, by which time Dr Ponsonby had the x-rays from the hospital. Dr Ponsonby's notes record that the appellant complained of pain in the neck and back. Dr Ponsonby noted the report of a possible fracture in the region of T2 - T4 and palpated the appellant in that area. His notes record that the appellant did not complain of tenderness in that area. The relevant parts of Dr Ponsonby's evidence are set out at 1 of the learned trial judge's reasons for judgment.
The appellant was examined by orthopaedic surgeon, Mr Browne, at the request of the respondent on 17 May 1994, six months after the accident. The report tendered in evidence records a complaint of pain "which is felt in the upper dorsal region of the spine". On examination, Mr Browne noted tenderness over the upper dorsal area. There was then no complaint of tenderness or pain below the upper thoracic spine. The learned trial judge's findings of pain in the area of the upper thoracic spine, and that such pain was caused by the fractures of the thoracic vertebrae suffered in the accident, is in accordance with the evidence and not subject to challenge.
With respect to back pain, the appellant said in evidence that he suffered from "pins and needles and constant lower back pain, middle region to lower back pain", but a little later on in his evidence-in-chief, the appellant said that he suffered from pain in his neck, "just above my spine" and pins and needles across his shoulder blades. His evidence then proceeded to the effect that he currently suffers from pain in his lower back that he attributes to the accident, but all his other accident related pain had settled down. When Dr Ponsonby's evidence to the effect that a few days after the accident he had no pain in the neck was put to the appellant in cross-examination, he said:
"… I honestly can't remember back then but I am not lying now when I say that I have pain constantly.
No, I am not going to debate what you have got at the moment but what I am going to suggest to you is that shortly after your initial aches and pains settled down, you had no back pain for a long period of time? … No, I don't agree."
What was the cause of the appellant's pain in the middle to lower back?
The appellant said in cross-examination that in January 1996, he was involved in a motor bike accident and sustained an injury (inter alia) to the region of his lower back ¾the area in respect of which he was complaining of pain at trial. There is no challenge to the learned trial judge's finding that an MRI scan taken in 1996, after the accident in January that year, showed a crush fracture at T7 and that if not actually caused in the 1996 accident, it certainly occurred after the accident in 1993. The central thrust of the submissions put on behalf of the appellant was that the critical finding that the appellant's pain in the lower back was caused by the crush fracture of T7 and not caused by the 1993 accident, was against the weight of the expert medical evidence.
Expert medical opinion evidence on this issue was given by Dr Ponsonby, Dr Stewart and Dr Graham for the appellant. Mr Browne and consultant physician, Mr Stevenson, were called by the respondent.
Dr Stewart practised as an occupational physician. He was consulted for the purposes of this litigation on 14 April 1998, four and a half years after the accident. In his evidence-in-chief, Dr Stewart said that in his opinion, but for the appellant's osteoporosis, he would have recovered from the effects of the 1993 accident. Dr Stewart only became aware of the post-accident fractures to T7 and T11 during the course of cross-examination. Dr Stewart said that he was unable to determine the precise site of the pain, but it appeared to be in the general area of the upper lumbar spine and lower thoracic spine. The significant passages in Dr Stewart's evidence are set out at 4 of the learned trial judge's reasons for judgment. Dr Stewart said that his opinion that the appellant's pain, as reported to him in 1998, was casually related to the accident was based upon the appellant's history and the osteoporosis. He said that he thought that a fracture to T7 was a little too high to be the cause of the appellant's pain as reported to him. It followed that he agreed that the site of the fractures sustained in the accident was also too high to be the cause of the appellant's pain as reported to him in 1998. In re-examination, he indicated an area in the vicinity of T10 as being the area in respect of which the appellant complained to him of pain. The learned trial judge noted at 4, this area coincides with the post-accident fracture at T11. I have some reservations about this, however. Dr Stewart saw the appellant in April 1998, but according to the evidence of Dr Graham, the report of the fracture at T11 was dated May 1998. In his opinion, it was a fresh fracture in the sense that it occurred after the 1993 accident. Of course, the fracture at T11 may have occurred before Dr Stewart's examination, but it may not have occurred until after it. Mr Gunson submitted that the learned trial judge gave insufficient weight to the evidence of Dr Stewart that the appellant complained of pain at the site of T12 which was fractured in the accident. However, that submission overstates the evidence. The bone scan carried out on 18 November 1993 at the request of the appellant's treating rheumatologist, Dr Graham, only reported "a possible fracture" at T12. Thus, although Dr Stewart opined in general terms that he considered that the appellant's pain, as reported to him when he saw the appellant in 1998, to have been caused by the accident, Dr Stewart was unaware of the post-accident fractures and the site of pain, as he understood it, was not consistent with having as its origin, the fractures caused in the accident.
Dr Graham became the appellant's treating rheumatologist in about 1991 or 1992. In his medical report dated 27 May 1994, nearly seven months after the accident, Dr Graham identified the injuries suffered in the accident as:
"… multiple fractures of his ribs, those were subluxations oblique/fracture of the costa chondral joints anteriorly [sic] particularly on the right side of his chest. He has a fracture dislocation of the manubrio sternal joint and he has two fractures of the thoracic vertebra."
Dr Graham then wrote:
"Following his accident Cameron complained of chest pain in all that he had broken. That is to say thoracic spinal, anterior chest and lateral chest."
Dr Graham expressed the opinion that the appellant's pain should settle.
In early October 1995, nearly two years after the accident, Dr Graham reported:
"The description of the pain is that it is present continuously but to variable degrees. … He still has some pins and needles around the mid thoracic spine and down into both arms, however that has not really changed since the time of the accident."
Dr Graham was asked these questions and gave these answers in his evidence-in-chief:
"Now, he has given evidence to the court that ever since the accident in 1993 that he has suffered from pain in his thoracic spine that he relates to the motor vehicle accident. Throughout the years that you've treated him has he continued to complain to you of pain in the thoracic spine that he relates to the motor vehicle accident? ... Yes sir.
Given the nature of the injury to that spine that occurred in that accident which is clearly shown on the bone scan, that you consider it reasonable that he continue to have pain at that point? … I think it is very common, I don't think Cameron Garlick displays anything that is unusual in terms of pain duration. The fracture of the spine itself can be painful - the deformity that occurs can be painful. The degree of his osteoporosis in itself is not painful so that the ongoing reasons that you get pain in somebody who has a broken bone are those of ongoing instability at the level of the fracture or physical deformity as a result of the fracture. Certainly Cameron has evidence of the latter and it is very common to have incident related pain in relation to the fracture. That is to say when you go and use that part it is often painful."
No evidence was led in chief from Dr Graham with respect to the area to which the appellant's complaints of pain related, apart from the immediate post-accident period. With respect to that period, Dr Graham's oral evidence confirmed and amplified that written in his first report. He said:
"He complained of pain in his chest, in his thoracic spine and in his lower cervical spine, and is usually the case, by the time you see people like that who have been involved in a motor vehicle accident the pain is a lot more widely spread, usually from well up into the neck to well down into the thoracic spine."
Dr Graham gave a long and illuminating answer in his cross-examination with respect to the likely source of the appellant's pain. He said, in part:
"Now, in people who have musculo-skeletal pains, like Cameron, there is no reliable way of differentiating one group of injuries from another except by direct questionnaire or history from the patient. And, except in extreme circumstances, you are left entirely with their history as the only method of discerning what is different between now and then. My understanding of Cameron's pain is that he has a group of aches and pains from his car accident which include what one might call myofascial group of pains from his neck and shoulders, the whiplash type pain that is a common thought in the community [sic], his fracture pains, his pains in his anterior chest, all of which are fracture pains and over time as I understand it he has also had other fractures. My understanding of his pain is that he has his upper thoracic spinal pain as his remainder or residue if you wish from the time of his accident his other myofascial and anterior chest pains having largely settled down. He still has other aches and pains as I understand it from other trauma and other fractures. The pain that I understand Cameron to have when he is sitting uncomfortably or when he is lifting things, moving around and doing things, is of the high thoracic spinal type and is the same qualitatively and in location as that discomfort that he complained of and has complained of since his motor vehicle accident. That's my understanding. I have no doubt that he has other aches and pains and I have no doubt that over time he will accumulate more of them."
It was never directly put to Dr Graham that the source of the appellant's pain post-1996 and post-1998 was the crush fracture at T7 and the fracture at T11, respectively. In re-examination, Mr Gunson referred Dr Graham to a passage in the latter's report dated 10 July 1997 which refers to a motor bike accident "earlier this year". With respect to that accident, Dr Graham wrote that he did not believe that there had been any significant change in his state "from third accident" [sic]. In putting the question, Mr Gunson suggested that "third" should read "this" and Dr Graham agreed. However, the appellant's evidence was that he had a motor cycle accident in January 1996, not early 1997, and it may well be that Dr Graham's report was indeed referring to a third accident. However, the matter was not pursued further in re-examination. The learned trial judge's conclusion that the principal site in respect of which the appellant complained of pain to Dr Graham was the upper thoracic spine, is in accordance with the witness' evidence. This evidence is in conflict with that given by Dr Stewart in this respect.
In his written submissions, Mr Gunson submitted:
"Insufficient or no weight was given to Dr Graham's evidence that a later incident whereby the plaintiff fell off a minibike and sustained injuries did not significantly change his state from the accident (p 343T) and now experiences the plaintiff continues to complain of the same pain, only having recovered from the acute fracture pain but not the ongoing discomfort (p 342T) and now experiences pain which is incident related in relation to the fracture, such as when he must use that part of his body (p316T). Dr Graham further admitted in evidence that throughout the years he treated the plaintiff he had continued to complain to him of pain in the thoracic spine (p 315T). It was the same qualitatively and in location as he had complained of since his motor vehicle accident (p334T)."
Mr Gunson did not explain the above submission in his oral argument and I am unable to understand it except for the first half of the first sentence.
The critical issue of whether the cause of the appellant's complaints of pain was the fractures sustained in the motor vehicle accident or the fractures sustained subsequently, was not directly put to Mr Stevenson. In his evidence, he said that he examined the appellant only once in 1998, for the purposes of this litigation. He recorded complaints of pain in the lower dorsal region of the appellant's back radiating up and down on occasions, together with occasional and much less significant pain in the region of the cervical spine and upper thoracic spine. In his written report, Dr Stevenson expressed the opinion that the appellant had for some time made a full recovery from the injuries sustained in the motor vehicle accident, but under cross-examination conceded that there may remain some residual pain from those injuries.
Mr Browne's evidence directly dealt with the issue of the causal relationship between the post-accident fracture at T7 and the appellant's complaints of pain. He was of the opinion that in general terms, fractures such as those suffered by the appellant in the accident would not be a source of pain for more than about six months after their occurrence. He conceded, however, that there was no absolute rule about this.
Mr Browne noted that when he first saw the appellant in May 1994, his complaints of pain were confined to the "upper dorsal region of the spine". When the appellant saw Mr Browne at the end of 1996, being 11 months after the motor cycle accident in January of that year, he complained of pain "in the neck and the dorsal back and also in the lumbar back if he sits for any length of time. [The appellant] also has a generalised tingling sensation and headaches".
When Mr Browne saw the appellant in 1998, the appellant stated, "that he has a constant low dorsal back pain. This sometimes radiates up the dorsal spine towards the neck". In his report dated 11 February 1998, Mr Browne said:
"At the present time he is having pain in the mid dorsal region and the MRI scan of 1996 shows significant wedging of one vertebra in the mid dorsal region. He also had some pain radiating around his chest wall which I would consider comes from the same site. It would appear that this lesion in his dorsal spine has occurred since the accident of November of 1993, it is possible that it resulted from the accident of January of 1996. It may also have occurred spontaneously some time in between. In my opinion this lesion in his dorsal spine is as much the cause of his present back pain as the lesions in the upper dorsal spine. Certainly he seems to be more tender at this site than in the upper dorsal spine. I also note that the recent bone scan shows increased uptake at this level still."
Mr Browne's position with respect to the causal relationship between the appellant's pain and the fracture at T7 is reflected in this question and answer given during his cross-examination:
"Well, as to that, we come back to what I asked you in the beginning of cross-examination and that is that you are not able to specifically pinpoint the lesion at T7 as being causative of pain, do you agree with that? … I cannot say for certain that it is the cause of pain. All I can say is that it is more probably that that is the cause of the pain than the other lesions. I think I put that in my report."
The opinions of Mr Stevenson and Mr Browne were supported by the evidence of Dr Ponsonby that about a year after the accident:
"The pain that was preventing Cameron from working was partly by the accident but it was also partly by his underlying condition. So I felt that the accident fractures had probably healed up as much as they were going to. Perhaps there was some residual pain from that. But also there was residual pain from just the fact of having osteoporosis. So it was a combined thing, contributed to by the accident, that I regarded him ¾ that he wasn’t fit to return to work."
The learned trial judge did not find that there were no residual symptoms from the accident. He found that from about 1996 those symptoms were no more than minimal and that, given the appellant's pre-accident limitations, such symptoms did not significantly reduce his earning capacity.
Mr Browne was the only witness to address with precision the sites of pain as identified by the appellant from time to time, and the causal relationship between that pain and the various injuries sustained by the appellant in the accident and subsequently. The nature of Mr Browne's evidence was such that no error can be detected in the learned trial judge accepting his evidence of the appellant's complaints of pain over Dr Graham's evidence of the appellant's complaints of pain to him.
Mr Browne's evidence was consistent with the general consensus of medical opinion prevailing in the months after the accident, viz, that the appellant would make a full recovery from the injuries sustained in the accident after the fractures had healed. Although Mr Stewart was unaware of the crush fracture of T7 until he was told of its existence in cross-examination, his evidence of the appellant's complaints of pain to him in 1998 was consistent with Mr Browne's evidence about that matter when he saw him after the 1996 motor cycle accident. Dr Graham agreed that the appellant suffered from pain due to causes unrelated to the accident, although he adhered to his view that the appellant's upper thoracic pain was due to the 1993 accident. It was appropriate to accept the preponderance of expert opinion evidence with respect to the appellant's complaints of pain. Such acceptance led to the acceptance of Mr Browne's opinion as to the cause of that pain.
The impugned findings made by the learned trial judge with respect to the absence of any causal link between the appellant's pain after about mid-1995, apart from minimal discomfort, were the appropriate ones to make on the totality of the evidence.
Ground 2 of the notice of appeal is not made out.
No separate argument was adduced in support of ground 1. It, too, is not made out.
With respect to grounds 3 and 4, the arguments to support ground 2 were repeated. In addition, Mr Gunson put some additional argument in his written submissions with respect to the appellant's capacity to work as a shop assistant with Myer. However, in reply to Mr Read, who appeared as counsel for the respondent on the appeal, Mr Gunson said that he did not press his submissions with respect to the appellant's loss of his ability to utilise his pre-accident capacity to earn income from working with Myer. Given the failure of ground 2, no basis exists for interfering with the award of general damages in the sum of $25,000.
I would dismiss the appeal.
File No FCA 3/1999
CAMERON GARY GARLICK v NICK SCORDILIS
REASONS FOR JUDGMENT FULL COURT
SLICER J
28 June 2000
I have had the opportunity of reading in draft form the Reasons for Judgment of Underwood J. I agree with both his reasoning and conclusion. I would propose that the appeal be dismissed.
File No FCA 3/1999
CAMERON GARY GARLICK v NICK SCORDILIS
REASONS FOR JUDGMENT FULL COURT
EVANS J
28 June 2000
I agree with the Reasons for Judgment prepared by Underwood J, of which I have had the advantage of reading. I would dismiss the appeal.
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