Gialouris v Surfside Buslines Pty Ltd
[2014] NSWDC 223
•19 September 2014
District Court
New South Wales
Case Title: Gialouris v Surfside Buslines Pty Ltd Medium Neutral Citation: [2014] NSWDC 223 Hearing Date(s): 21 and 22 July 2014 Decision Date: 19 September 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for the sum of $1,442.80.
(2) Costs reserved with liberty to apply.
(3) Exhibits retained for 28 days.Catchwords: TORT - personal injury - assessment of damages - causation - plaintiff suffers injury when a bus in which she and her husband are passengers brakes suddenly - plaintiff seeks medical assistance for minor injuries but later claims serious shoulder injury - accounts given by the plaintiff and her husband to police, ambulance and hospital differ signficantly from the plaintiff's evidence in court - defendant's expert witness changes opinion as to causation after receiving information about the earlier inconsistent statements - defendant calls evidence from the bus driver which is consistent with the plaintiff's initial version of events - reconciling different versions by a plaintiff of an accident - reliability of statements made to health professionals - role of credit findings - assessment of damages Legislation Cited: Motor Accident Insurance Act 1994 (Qld)
Uniform Civil Procedure Rules 2005 (NSW), r 42.35Cases Cited: Container Terminals Australia v Huseyin [2008] NSWCA 320
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Ferguson v McDonalds [2005] NSWCA 401
Gulic v O'Neill [2011] NSWCA 361
Hill v Richards [2011] NSWCA 291
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
Mastronardi v State of New South Wales [2009] NSWCA 270
McGlen-McLeod v Galloway [2011] NSWDC 163
McGlen-McLeod v Galloway [2012] NSWCA 368
Nominal Defendant v Kostic [2007] NSWCA 14
Tchen v Nominal Defendant [2010] NSWCA 245
Whalan v Kogarah Municipal Council [2007] NSWCA 5Texts Cited: - Category: Principal judgment Parties: Plaintiff: Rena Gialouris
Defendant: Surfside Buslines Pty LtdRepresentation - Counsel: Plaintiff: Dr S C Thorton
Defendant: Ms C J Allan- Solicitors: Plaintiff: Schreuder Partners
Defendant: McInnes Wilson LawyersFile Number(s): 2013/283635 Publication Restriction: None
JUDGMENT
The plaintiff's pleaded claim for damages
The plaintiff brings proceedings pursuant to Motor Accident Insurance Act 1994 (Qld) for injuries suffered on 6 September 2011 when the plaintiff, while a passenger in the defendant's bus, suffered injuries when the bus driver suddenly applied the brakes.
According to the original statement of claim in these proceedings filed on 19 September 2013, the plaintiff's injuries were suffered when she was "thrown heavily forwards striking the glass screen in front of her". This is consistent with her description of her injuries when she was taken to the Robina Hospital, where her injuries were described as:
"[The plaintiff] was forced forward and [the plaintiff's] left eyebrow collided with the glass at the front of the bus, [the plaintiff] had a small laceration to the L eyelid which had stopped bleeding prior to QAS arrival. No neck or back pain."
The particulars of injuries are pleaded as follows:
(a)Aggravation injury to neck;
(b)Injury to left eye;
(c)Injury to left shoulder;
(d)Aggravation injury to lower back;
(e)Shock;
(f)Psychological sequelae.
The particulars of continuing disabilities are pleaded as follows:
(a)Scarring to left eyelid;
(b)Restriction of movement of neck;
(c)Restriction of movement of back;
(d)Restriction of movement of left arm;
(e)Inability to socialise;
(f)Requiring analgesic medication;
(g)Requiring physiotherapy;
(h)Constant pain in lower back;
(i)Aggravation to pain in lower back when sitting for extended periods;
(j)Aggravation to pain in lower back when standing for extended periods;
(k)Aggravation to pain in lower back when bending;
(l)Aggravation to pain in lower back when pushing;
(m)Pain in left shoulder;
(n)Restriction of movement of left arm;
(o)Aggravation to pain in left shoulder when lifting or moving left arm;
(p)Loss of strength in left arm;
(q)Inability to carry heavy weights including shopping with left arm;
(r)Pain in neck;
(s)Aggravation to neck pain when driving;
(t)Difficulty with overhead tasks;
(u)Stress;
(v)Nervous whilst a driver or as a passenger in a motor vehicle;
(w)Broken sleep pattern;
(x)Lethargy;
(y)Loss of concentration;
(z)Loss of confidence;
(aa)Reliance upon family members for assistance with domestic chores;
(bb)Restriction on social activities.
The plaintiff's evidence concerning the accident
The plaintiff described how she and her husband were sitting on the bus in the front seat adjacent to, rather than behind, the driver, when the bus driver suddenly slammed on the brakes:
"Q. When he put the brakes on really hard, what happened?
A. I jolted my head on the post. I tried to grab the post so I won't fall, because my husband fell on the floor.Q. So your husband fell on the floor first, was it?
A. Yes, first.Q. And then what did you do after your husband fell on the floor?
A. I slide from the seat from the left all the way to the right sitting half in the seat, and I grabbed the post and I hit my head on the post.Q. Did you knock yourself out or not? Did you lose consciousness?
A. No.Q. After the accident, did you go to the doctor or did you go to a hospital?
A. The ambulance come and took me to Robina Hospital." (T 4)The plaintiff said that she had made a complaint to the police about the accident:
"Q. When did that happen?
A. I think it may be a few days later. I can't remember the date, I'm sorry.Q. So is this the situation? You and your husband attended the police station to give some statements in relation to what happened?
A. We'd been to the hospital and then after they patched my eye and they put the glue on it, I took a taxi and we come home. And then after a few days, the pain was still very bad all over my body, and I had a terrible, terrible head ache. I went to the police station to report it because someone said to me, "You had better go and report it."Q. Did you go to the police station with your husband?
A. Yes.Q. Were you together when you gave your statements to the police?
A. Yes. Yes.Q. I take it, you heard what your husband said to the police as to what happened?
A. My husband? I don't know....
A. No, no, no. Together, together. We were together.
ALLAN
Q. You see, I suggest that you heard your husband tell this to the police officer: "As the bus was approaching the first main set of traffic lights, the bus stopped very quickly. I was lucky I was holding onto the pole at the time because I would have ended up on the floor of the bus. Rena hit her face on the glass screen in front of her. Her eyebrow was cut open and bleeding."
A. My husband's English is very, very bad. Like, I speak better English than him. He doesn't drive, he doesn't - he's an old man, 83 years old. He doesn't speak English properly. I don't know if he said that, I don't know, I'm sorry.Q. I'm suggesting to you that that's what you heard your husband say to the police when you went and reported it. What do you say about that?
A. He definitely fell. If you have pictures of your bus, the bus has cameras. If you get that video, you will see my husband on the ground. My husband was on the floor where the steps come in - you know, when they come up. He might have grabbed the post but he definitely fell on the floor. On the - you know where the steps are to go to the bus, to get into the bus? That's where he fell, on the hole - well." (T 34)The police interview transcript for the plaintiff, her husband and the bus driver is set out in more detail below. The description of the accident by both the plaintiff and her husband (who, it is agreed, is too ill to give evidence) is completely at variance with the description the plaintiff gave, in her evidence in chief, of the accident.
As the photographs of the bus show, the seat on which the plaintiff and her husband were sitting was so close to the bus driver's seat that, if the plaintiff's husband had fallen to the ground as claimed, he would have had to fall on the floor beside as well as partially behind the bus driver, which would have blocked her path out of the driver seat when she stopped the bus. The plaintiff was asked:
"Q. So he fell not only to the side of his seat but he moved towards the front?
A. He fell the right way, the bus stairs, when you come up with the bus steps, to get into the bus, he fell - that's where he fell. Where you cut the tickets.Q. So he was directly next to the bus driver. Correct?
A. The bus driver is - it's into the right.Q. Directly to the left of the bus driver is the steps you're referring to. Isn't that right?
A. Yeah. Yeah. To the left. That's where he fell.Q. So he fell--
A. Yes.Q. --directly next to the bus driver. Correct?
A. Yes, he did. Yes.Q. Do you have any recollection of the bus driver looking or seeing or saying anything to your husband as he lay on the floor?
A. No, I don't.Q. You see, what you've just said is just not correct, is it?
A. Yes, it is, I'm sorry.Q. Your husband did not fall onto the floor at all, did he?
A. He did fell on the floor.Q. He remained sitting in his seat holding onto the pole that you have just referred to.
A. That's not correct, I'm sorry, that's not correct.Q. In fact, what you did was hit your head on the glass screen which was in front of you.
A. No." (T 36)
The ambulance officer's observations
Ambulance officers came to the scene. The electronic ambulance report form notes:
"Patient was a passenger in a bus when the driver had to brake sharply, patient was forced forward and the patient's left eyebrow collided with the glass at the fron [sic] to the bus, patient has a small laceration to the left eyelid, which had stopped bleeding prior to QAS arrival, area cleaned and dressed, patient had no ALOC, no neck or back pain and no visual disturbance, patient a little bit upset and tearful."
The plaintiff's response to being read this material was as follows:
"Q. You see, I suggest this is what you told the ambulance officer, that you were forced forward and your left eyebrow collided with the glass at the front of the bus.
A. You can quote whatever you want, but my head, it hit the post.Q. You see, you also didn't make any complaint to the ambulance officer of any pain in your left shoulder, did you?
A. You're correct.Q. Because you didn't have any pain in your left shoulder at that time, did you?
A. I had a headache only, a really bad headache.Q. And you also didn't have any pain in your neck or back, did you?
A. Not then, but by the night it started hitting me a terrible lot from the neck all the way down. My whole body was in pain.Q. Because you attended Robina Hospital, didn't you?
A. Yes.Q. It's the case, isn't it, that while you were at hospital your only complaint was in relation to your headache.
A. That's correct.Q. Would you agree with that?
A. That's correct.Q. And that at that stage you had no neck pain.
A. No, that's correct." (T 36)The bus driver gave evidence before me, and was interviewed by police following the complaint by the plaintiff and her husband.
The bus driver's evidence
Mrs Agnes Tehau was called to give evidence. She described the accident as follows:
"Q. What happened?
A. Okay. When I left the bus stop the lights had changed. I came up to the lights. There was a car and a truck in front of me when I stopped. The lights changed. I was turning right, so with the traffic in front of me. As I was turning, the truck in front of me had stopped. There was road works there and it had stopped. So I put my foot on the brake and stopped.Q. First of all, you said that you turned right.
A. Yes.Q. And it's not the case that you turned left. Is that right?
A. No.Q. As you stopped the bus, what did you observe, if anything, about the passengers in the bus?
A. Well, it's just automatic that I look in the mirror inside the bus, as well as to my left, rear and my right mirrors. And the passengers were still in the seat. I only had about, probably five or six people in the bus, so.Q. Did you hear any noise as you stopped the bus?
A. Well, I heard a lot of talking and it kind of - it wasn't in English. I just heard a lot of talking and it just made me kind of look slightly to my left at the passengers, and the lady wasn't - she was crying, actually.Q. What did you do?
A. Well, like I said, I had stopped. I called up operations to let them know what was going on, and I slightly came out of the traffic to go into the left-hand lane to pull over, to attend to the passengers.Q. Did you attend to the passengers?
A. Yes, I did." (T 58).She called an ambulance because the plaintiff had a cut over her eye, and the plaintiff and her husband remained on the bus while the other passengers were taken away:
"Q. What did you do?
A. Before I could do anything, operations, which is base, sent another bus out to pick up the rest of the passengers. They asked me if I needed an ambulance. I said yes because while I was talking to them I noticed the lady had slightly cut her - just under her eyebrow.Q. Where were the lady and her companion?
A. They were in their seat that's behind the door.Q. They were still in the seat that they had entered--
A. They were still in the seat.Q. --when they got on the bus. Is that right? And what then happened?
A. Then I - after finishing talking to operations I hopped out of the seat and helped them to the disability seat in the middle of the bus.Q. What, if anything, did you notice about any injury sustained by the lady?
A. Well, I just noticed the slight cut under her eyebrow and I asked if she was okay and that, and he said they're fine." (T 58 - 9).She was adamant that the plaintiff's husband had not fallen to the floor at any time:
"Q. It has been suggested that when you braked, the male companion fell off his seat onto the floor in front of the steps and next to the ticket machine. What do you say about that?
A. Did not happen.Q. You're absolutely certain about that?
A. Yeah.Q. It has been suggested that the lady passenger slid to the aisle edge of the seat that she had been sitting on, that had been left vacant by her husband, who had fallen onto the floor. What do you say about that?
A. Didn't happen.Q. Apart from the pole which you identified in the photograph that I showed you earlier, is there any other pole in the vicinity of the seat that the female passenger and her companion were sitting in?
A. There's one at the back, which is where they put all their luggage, and it's just at the back of the seat, coinciding with the one that's in the front.Q. And is it, in terms of poles sitting in front of the seat, how many poles are there?
A. Just the one.Q. Where is it located, as compared to the aisle and the window?
A. Well, it's in the aisle."In cross-examination, all Mrs Tehau was asked was the following:
"Q. Just in relation to the plaintiff or Mrs Gialouris, you say, "I realise someone hit the screen." When did you realise someone hit the screen?
A. Well, like I said previously, they were talking and I heard - you get used to carrying a lot of passengers and just their persona about them and just the way - I just heard them talking and it sounded like something was wrong. I didn't actually see her hit her head on the Perspex, but when I got off to help them off, she had a cut under her eyebrow, her left eyebrow.Q. So we can assume, it's an assumption that she hit the Perspex. Is that correct?
A. Yes, there's no other way." (T 62).She completed an incident report form (T 60, Exhibit 4) which reads:
"2 x senior in front seat (left side). Turning right from Scarborough St onto Queens St a truck (Roadwork) stopped suddenly. I braked firmly and the female senior hit her head on the windowpane. Under her left eyebrow was slightly cut and bled a bit. She was a bit shaken up."
Mrs Tehau was an impressive witness. The consistency of her accounts in her report to her superiors and to the police was obvious.
The plaintiff sought medical advice after the accident. What she told her medical practitioners, between September 2011 and February 2012, is consistent with her having hit her head on the Perspex, and of having suffered no injury to her shoulder.
The plaintiff's treatment following the accident
The plaintiff described her subsequent treatment as follows:
"Q. When you injured your shoulder, did you go and have treatment, or what did you do for treatment?
A. I went to the doctor and he send me for xrays, and then he sent me - it's still hurting after - he still send me to a new person to make an ultrasound, and they said that I've got osteoarthritis on my shoulder and nothing's broken.Q. Did they give you any other treatment besides an ultrasound?
A. Ultrasound? Yes, they send me to a specialist to have an injection.Q. Do you remember who the specialist was?
A. Yes, I do. Professor Morrell." (T 7)The plaintiff attended Dr Fatideh, the general practitioner she consulted while staying at her holiday home at the Gold Coast. Dr Fatideh noted she attended for a "prescription" at 6.55pm (Exhibit 1, pp 55-56) and there is no note of any discussion of the circumstances of the accident. She returned on 10 September 2011 saying she felt "stiff in neck" as she had had a car accident on the Tuesday, and was a bit "bruise [sic]". She had been to Robina Hospital in relation to her left eye. She had a headache in circumstances where she had "never had headache before". An examination of her neck showed mild tenderness over the spinous process and she was noted as being "a bit stressed" (Exhibit 1, p 55). She returned on 13 September and was seen by Dr Day, who noted she came for a CT brain and spine result. The spine result was described as "nil" and it was noted "neck movements okay, nil tenderness".
Returning home to see her general practitioner at Caringbah, who noted the following:
"Was involved in a bus accident in the Gold Coast, was a passenger and hit her forehead against the metal post, was taken to the hospital there. Had CT scan of the brain - NAD. X-ray of the cervical spine - showed spondylolisthesis in most levels and osteophytes, mainly degenerative changes."
He went on to note that she was "still having pain in the neck and head, and lower back pain" and that she needed a script for Endone. She was described as being "depressed about her granddaughter, who has been diagnosed with cerebral palsy, depressed, very emotional, crying" and needing to be counselled. She said she was seeing a psychologist on the Gold Coast; I note there was a referral in August to a Dr Wood, psychologist, but the plaintiff's evidence was that she did not consult him.
When the plaintiff consulted her general practitioner on 10 October 2011, he noted she had had an X-ray three weeks beforehand, which was normal, and that there were no sign of degenerative changes. The diagnosis "? soft tissue injuries" is noted. Lower back pain was noted as starting "only during the physiotherapy". She was not tender over the spine. She was seen again on 11 and 17 October when she reported progress and that heat pack and massage was helping. While in Moree, the plaintiff saw Dr Percival on 25 October 2011, who noted she had "a sore neck and back ache" but "no leg or arm pain" (Exhibit 1). She attended Moree Hospital, where it was noted that her neck pain was "resolved". An entry from her general practitioner in Caringbah Medical Centre noted she had "no more back pain" and that she had gone to Moree Hospital for "severe lower abdominal pain". A further note on 13 December from the Caringbah Medical Centre was that she had lower back and neck pain and "has been doing hydrotherapy".
An entry on 4 January 2012 noted the plaintiff had left hand numbness and tingling waking her at night, described by her medical practitioner as "typical carpal tunnel". No claim is made that this carpal tunnel condition relates to the motor vehicle accident. An entry on 18 January refers to the plaintiff receiving benefit from hydrotherapy and an entry on 24 January 2012 refers to her having pain from a pulled muscle in the left buttock.
The plaintiff's report of the accident to the police
This brings me to the description given by the plaintiff and her husband to the police shortly after the accident. This was as follows:
"Surname: GIALOURIS
G/Names: RENA
Person Type: Passenger; VictimI was a passenger on the Surfside bus with my husband John. We got on the bus at Australia Fair and we were going to Ferry Road.
At about 11:30am just down the main road from where we got on the bus, the bus stopped fast to avoid hitting the back of the truck in front. The bus driver was going to [sic] fast and travelling close to the car in front.
When the bus stopped fast I hit my head on the glass screen. We were sitting at the front of the bus on the left hand side.
Ambulance took me to Robina Hospital. Since the accident I have had headaches [sic], neck and back pain." (Exhibit 2)
A description was given by the plaintiff's husband as follows:
"Surname: GIALOURIS
G/Names: JOHN
Person Type: WitnessWe were travelling from Australia fair [sic] shopping centre to Ferry Road Southport on the bus. The bus driver was travelling very close to the truck in front of it. As the bus was approaching the first main set of traffic lights the bus stopped very quickly, I was lucky I was holding the [sic] onto the pole at the time because I would have ended up on the floor of the bus. Rena hit her face on the glass screen infront [sic] of her, her eyebrow was cut open and bleeding. Ambulance came and took her to the Robina Hospital." (Exhibit 2)
A statement was taken by the bus driver who did not see the accident but said "I realised someone hit the screen" (Exhibit 2). She pulled over immediately in front of a pub in a very short distance. The whereabouts of the plaintiff's husband is of importance in terms of the mechanics of this accident. It is common ground that the plaintiff and her husband were sitting in the first seat immediately adjacent to the front door of the bus (on the left), and the bus driver (on the right). Consequently, the distance between the plaintiff, her husband and the bus driver was comparatively short, as the photographs (Exhibit 1) show.
The first mention of left arm pain
The first time the plaintiff complained of any pain in her left arm was on 13 February 2012, when her general practitioner noted her complaints as follows:
"Pain in the left arm, very limited movement due to pain.
AEL shoulder - pain is in the biceps muscle ? referred pain
No mass in the muscle, no lump
May need x-ray \ US [Ultrasound] L shoulder
Referred for such"
On 1 March 2012, the plaintiff was described as "still having pain in the left shoulder". She told the doctor she had an x-ray and ultrasound done on the Gold Coast which showed a tear in one of the tendons, but the report was not brought by the patient. That tear, however, was not seen in the shoulder the subject of these proceedings. The plaintiff had had a right shoulder repair performed surgically in January 2011, nine months before the accident, and was still recovering from it at the time of the accident.
On 5 March 2012, the plaintiff consulted Dr John Trantalis and told him she suffered an injury when a bus had to stop suddenly and she was thrown sideways. She said that she grabbed onto a pole with her left arm and felt a sudden pain in her shoulder.
This is the first description she had made of grabbing the pole with her left arm, although one earlier reference to her symptoms referred to her hitting her head on a pole.
There is no doubt that the plaintiff's rotator cuff injury is genuine, severe and inoperable. The question is its causation, given the very differing accounts of the plaintiff concerning the circumstances of her injury.
The plaintiff's description of her injury to medico-legal experts
The description given by the plaintiff to the court and to the medicolegal practitioners retained in these proceedings differ markedly from the description she gave doctors prior to March 2012, the description of the accident in her statement of claim (including the amended statement of claim) and in her report to the police.
The description given to Dr James G Bodel was as follows:
"Ms Gialouris indicates that the driver of the bus was travelling too fast. She was approaching an area where roadworks were being done and she had to brake suddenly to avoid hitting the workers at that area. The vehicle also steered violently to the right hand side and Ms Gialouris indicates that her husband was thrown out of his seat and onto the floor into the area near where the tickets are sold at the front of the bus and she was thrown towards the right hand side, twisted, grabbed the vertical pole near where she was sitting with her left arm and saved herself from falling on top of her husband. She did however hit her face on the vertical pole and she had to be taken to the nearby Robina Hospital where the cut on the eye was dressed and x-rays were taken but no fractures were seen.
She states that she and her husband then travelled home to Sydney where she came under the care of her local doctor in Caringbah. She had various treatments including physiotherapy and hydrotherapy and chiropractic treatment for her neck and back and left shoulder but eventually she was referred to Dr Trantalis, an orthopaedic surgeon, and he undertook an injection of local anaesthetic and hydrocortisone which did not help but she then had that repeated under ultrasound control and that was of some temporary benefit.
She also had an MRI scan of the left shoulder which shows evidence of a "full thickness tear involving 18 mm of the anterolateral attachment of the supraspinatus tendon with minimal medial retraction of the torn fragment". The scans show that this is in fact an insertional injury. It is full thickness anteriorly but not across the whole width of the supraspinatus tendon.
Ms Gialouris indicates that Dr Trantalis has indicated that she really should consider surgery but she states that she cannot do that as she has to care for her husband. She is continuing to use physiotherapy, hydrotherapy and chiropractic treatment intermittently and that helps her to maintain function in the neck and the back and the left shoulder.
PAST MEDICAL HISTORY
This lady suffers with hypertension for which she takes medication. She also has a raised current hearing loss level and takes thyroxine. She many years ago had a brain tumour and did have headaches for about three weeks after the bus accident but that settled and the CT scan of the brain was normal.
PREVIOUS CLAIMS
Nil."
Not surprisingly Dr Bodel considered there was a "direct causal link between the episode of injury to the left shoulder in the bus accident and the aggravation to the neck and back in the bus accident" (page 5, report 31 October 2012, Exhibit A). However, Dr Bodel has not examined the history of the plaintiff's complaint, and seen the difference between the version he has been given and that given to other doctors, or taken into account the five month delay in symptoms and diagnosis. Even the first time the plaintiff described the accident in this way, in the account she gave to Dr Trantalis, according to his report of 5 March 2012, made no reference to the dramatic claim that she was nearly thrown on top of her husband, but simply noted that she was thrown sideways and "grabbed onto a pole with her left arm and felt a sudden pain in her shoulder" (Exhibit A, Tab 12).
The delay is comparatively short. It would not be surprising if there were some delay between the accident and subsequent reports of injury. It is not unknown for plaintiffs to realise for long periods of time that they have suffered an injury. On occasions, gaps of up to two years without prior complaints to medical practitioners had been considered reasonable by the New South Wales Court of Appeal: McGlen-McLeod v Galloway [2012] NSWCA 368.
In the present case, however, I must be guided by the medical reports and reports of accident which have been tendered, and which paint a consistent picture of the plaintiff giving very different accounts at the time of the accident when compared to the account she gave months after the event.
If the plaintiff had suffered the injuries in the manner she described, and she had no prior difficulties with her left shoulder, the plaintiff's claim would be a straightforward one. However, not only was Dr Bodel given a version of the accident which is inconsistent with the plaintiff's contemporaneous accounts to the police and to the hospital, but omitted the plaintiff's prior history of problems with her left shoulder. As the plaintiff agreed in her evidence at T 5-6, she had torn her tendons in her other shoulder and had undergone surgery for this on 17 February 2011, about nine months before the accident. The importance of this evidence is explained in Dr Boys' report, set out below.
Thus the plaintiff's medical reports suffer three defects: failure to observe and comment on the change in the description of events, failure to note the delay in symptoms, and failure to obtain a full history of significant other injuries. The most important of these is the inconsistency in the plaintiff's account of the injury.
The court's approach to inconsistent accounts of the circumstances of accident and late complaints of injury
Inconsistencies in accounts of the circumstances of injury, particularly in relation to histories given to medical practitioners, are extremely common. The Court of Appeal has, on many occasions, warned trial judges not to be unduly concerned by apparent inconsistencies: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Ferguson v McDonalds [2005] NSWCA 401; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366; Container Terminals Australia v Huseyin [2008] NSWCA 320; Mason v Demasi [2009] NSWCA 227; Mastronardi v State of New South Wales [2009] NSWCA 270; Tchen v Nominal Defendant [2010] NSWCA 245; Hill v Richards [2011] NSWCA 291; Gulic v O'Neill [2011] NSWCA 361.
Similarly, the importance of a chronology in personal injury proceedings is to highlight the commonly occurring problem of delay in reporting injuries. In Whalan v Kogarah Municipal Council [2007] NSWCA 5 and Nominal Defendant v Kostic [2007] NSWCA 14 the Court of Appeal warned against uncritical acceptance (or rejection) of the plaintiff's account of events as opposed to an objective analysis of the chronology of events and in particular any delays in reporting injuries. A third commonly occurring problem is that the plaintiff's full medical history is not put to his or her own doctors. This is perhaps the most serious problem for the reasons explained by Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69].
These proceedings illustrate all three of these problems. I shall deal with each of them in turn.
Reconciling the plaintiff's different versions of the accident
As is noted above, the plaintiff's account of her accident in the witness box is inconsistent with the description of events in both the original and amended statements of claim (filed 13 November 2013), the accounts she and her husband gave to the police and hospital, and all the medical practitioners she consulted until February 2013.
Where a plaintiff gives one version of the accident at the time to her doctors, or to other third parties, and another to the court, particularly in circumstances where there is delay, problems in fact-finding arise. What is necessary in such circumstances is a close examination of the factual background.
In McGlen-McLeod v Galloway [2012] NSWCA 368, the plaintiff suffered an injury on 28 May 2008 when one of her legs fell through a hole in rotting floor boards on the veranda of rented premises. She received treatment, including an X-ray of the right leg, at the emergency centre at the local hospital that day, when her right leg was bandaged. She had her left leg bandage removed by her general practitioner a week later and a further X-ray recommended, as she had slipped and hurt her left leg a second time (McGlen-McLeod v Galloway [2011] NSWDC 163 at [12]). She did not consult any medical practitioners about leg injuries until 10 November 2009, when she told a doctor she had injured her left leg while pushing a car (at [19]). In December 2009 she commenced proceedings for damages, asserting that her May 2008 injury was to her right leg and not to her left leg. Her de facto partner, who witnessed the May 2008 accident, was not called as a witness. The NSW Court of Appeal set aside the findings that the plaintiff had not injured her right leg in the accident and remitted the proceedings to the District Court for rehearing as to causation, in part because there was no adverse credit finding in relation to the plaintiff. Tobias JA held at [103] - [104]:
"[103] In the result, it appears that the primary judge has rejected the reports referred to because they were generally based upon an inaccurate pre-accident work history provided to them by the appellant, and the failure to provide the doctors with the hospital notes and entries by the general practitioners whom the appellant consulted in 2008 and 2009. However neither of these matters can militate against the medical findings, opinions and prognoses expressed by each of the doctors concerned with respect to the injuries which the appellant asserted that she had sustained in the accident. Even if those practitioners had been made aware of the entries in the hospital notes as well as in the records of Drs Heslop, Cheney and Hertzberg, that would not have advanced the position as those doctors were not qualified to express a view as to whether it was her left leg or her right leg which fell through the floorboards. All they could do, and did do, was to express a view, which her Honour accepted, that her injuries were consistent with her right leg having fallen through the floorboards.
[104] Furthermore, the only other relevance of the reports with respect to the issue of causation (as distinct from damages) was that the appellant was entirely consistent in asserting to each of the practitioners concerned that it was indeed her right leg that fell through the floorboards and not her left leg. The issue which then arose was whether her evidence in this respect was credible and reliable. The hospital notes and the entries of the general practitioners were obviously relevant to this issue but, in my opinion, whatever inconsistencies were contained in them needed to be assessed against the credibility of the appellant in terms of her oral evidence both in chief and in cross-examination. That required an analysis of that evidence and an assessment of how it impacted upon the inconsistencies upon which her Honour relied on the causation issue. The appellant was, in my opinion, entitled to such an assessment. She was entitled to know whether she was or was not believed on her oath. Unfortunately, she was deprived of that right. It follows that there was a failure to take account of the appellant's evidence in a number of critical respects when determining the causation issue."
His Honour set out the submissions of the appellant at [121] and went on to agree with them.
Tobias JA noted the dangers of proceeding on the basis of notes written by busy practitioners and delay in complaint where there was subsequent consistent report of the circumstances of injury for the purpose of medico-legal reports (at [124]). All of these factors apply here.
However, the evidence in these proceedings is far stronger. This evidence consists of:
(a)Corroborative evidence in the form of contemporaneous statements to the police by the plaintiff, the plaintiff's husband and the bus driver.
(b)Expert evidence analysing the different explanations and the delay.
(c)Additionally, I have made credit findings about the plaintiff.
Corroborative evidence
I have set out above the relevant corroborative evidence of the police statements by the plaintiff and her husband, the contemporaneous report of the bus driver and her evidence before me (which was of such a compelling nature that she was not cross-examined about the plaintiff's version of events; she simply denied them in examination in chief).
Even allowing for the Court of Appeal's reservations about the accuracy of ambulance and general practitioners' notes (which, thanks to electronic reporting and record-keeping, are hopefully less of an issue now), the ambulance report and the general practitioners' notes could not be clearer. The plaintiff did not grab the pole and did not complain of shoulder pain prior to February 2012, when there were plenty of intervening reasons (such as picking up her grandchildren, something she had to stop doing at about that time because of the pain) for this condition.
Unlike McGlen-McLeod, where the plaintiff did not call the witness to her accident, this accident was seen by the plaintiff's husband and he reported the events to the police. Additionally, although the bus driver did not see the plaintiff injure herself, she would have seen the plaintiff's husband if he had fallen on her floor, because he would have fallen beside her.
All of the corroborative evidence points to the accident occurring in circumstances where the plaintiff did not grab the pole or otherwise injure her arm, and in circumstances where there was no complaint of arm pain until nearly five months later.
Expert evidence
In McGlen-McLeod, the court did not have the benefit of expert evidence examining the inconsistent medical history; the plaintiff's medico-legal experts accepted her evidence and the defendant's expert evidence simply dismissed her claims.
In these proceedings, the court has the benefit of reports from Dr Peter Boys, who initially considered (report 24 April 2013, Exhibit 1) that the plaintiff's injuries corresponded with the medical history she provided, but later concluded, having examined that medical history more closely, as well as her contemporaneous accounts of the accident, as follows:
"Subsequent to your correspondence of 30 April 2014 I have reviewed my notes and report concerning consultation on 24 April 2013.
I have reviewed the Schedule of Reports received subsequent to that date:
- Photographs depicting Surfside Bus
- Patient History
- Consultation Record
- Patient Summary
- Subpoenaed materials
These documents have been examined.
It was noted at the time of consultation that Ms Gialouris did note a past history of disability referable to the left shoulder with symptoms in 2007 initiating orthopaedic referral to Professor G Murrell. This history has been confirmed by perusal of the documentation of the Caringbah Medical Centre (Dr Romeo Robles) with a report provided by Dr A Paton (Radiologist) directed to radiographs of the left shoulder performed on 16 April 2008. I note the findings at fat time:
... There is mild osteoarthritic change in the glenohumeral and AC joints, No bony lesions or rotator cuff calcifications are seen. The subacromial space is normal...
The letter of referral provided by Dr Romeo Robles to Professor George Murrell dated 16 April 2008 is noted in this context:
... She has been having pain in her left shoulder for some time. She suffers from osteoarthritis. She wants to have a cortisone injection...
In the context of this lady's left shoulder complaints experienced in the period prior to the claimed bus accident on 6 September 20111 note no contemporaneous record referable to the left shoulder and the referral by Dr S Ibrahim for an ultrasound examination of the left shoulder performed on 17 February 2012.
I have previously opined that this lady suffered soft tissue injury to the region of the left shoulder (with aggravation of pre-existing degenerative change within the left rotator cuff) as a consequence of the claimed injury of 6 September 2011. This opinion has been formed in the light of the history provided to me by Ms Gialouris that she had pain in the left shoulder region (in association with neck and low back pain) at or about the time of initial assessment at the Robina Hospital. If it is accepted as a matter of fact that this lady did have a symptomatic condition of the left shoulder subsequent to the claim bus injury my opinions are unchanged.
If it is accepted that this lady had no specific complaint referable to the left shoulder over a period of some 5 months following injury it would be my opinion that symptoms experienced in the ensuing period are likely to reflect the effects of a pre-existing degenerative condition and, in this context, the bus accident of 6 September 2011 had not given rise to specific injury to the left shoulder region." (Exhibit 1, Tab 5)
There is no such evidence from any expert called by the plaintiff. Either they have not noticed the inconsistencies or they have simply failed to explain them. Dr Boys' careful analysis is thus to be preferred.
Credit issues
The plaintiff was deeply distressed about her condition, in circumstances where family problems, including her granddaughter's ill health, have crowded other issues out of her conscious mind. She wept openly as she described her distress at being unable to help in the care of her granddaughter, or even to pick her up.
In response to a question about the ambulance report being different to what she had said happened, the plaintiff said, "you can quote whatever you want" (T 36). The plaintiff's response to these pieces of evidence being put to her in cross-examination was to deny them and to repeat that her version of events was correct.
The plaintiff has persuaded herself that her accident has happened in a certain way and responds to evidence to the contrary with a flat denial. The relevant parts of her demeanour are her level of distress and unhappiness about family matters which appears to have overwhelmed her powers of reasoning and accurate recollection. Where her evidence is in conflict with that of Mrs Tehau, I prefer to accept the evidence of Mrs Tehau.
I am satisfied, therefore, that the plaintiff's shoulder injury is not causally related to the injuries she suffered while travelling in the defendant's bus.
Damages
The plaintiff makes no claim for non-economic loss whatever my findings of causation. The claims are restricted to past and future domestic care and assistance and out-of-pocket expenses. The plaintiff claims amounts totalling $145,024.70.
Past and future out-of-pocket expenses
The plaintiff claims $5,049.70 for past out-of-pocket expenses and a "cushion" of $10,000 for future out-of-pocket expenses, principally Panadol Osteo and visits to the general practitioner.
The defendant concedes that past out-of-pocket expenses of $4,191.20 relate to the plaintiff's condition of which $2,748.40 should be credited to the defendant, resulting in a net figure of $1,442.80.
The amount of past out-of-pocket expenses relating to the left shoulder treatment are $858.50.
Conformably with my findings as to the lack of relationship between the plaintiff's shoulder injury and the accident, I propose to allow $1,442.80 for the plaintiff's past out-of-pocket expenses. I note the difference in sums between the calculations of the plaintiff and defendant but prefer to err on the side of caution and accept the evidence of the defendant. The difference in amount is slight.
The plaintiff claims $10,000 for future prescriptions of Panadol Osteo and visits to the general practitioner. The defendant submits that this figure should be $0 as the plaintiff suffered only minor soft tissue injuries which have completely resolved. Conformably with my findings as to the plaintiff's lack of injury, I do not make any allowance for future out-of-pocket expenses.
Past and future care and assistance
The plaintiff's past care and assistance claim is mathematically agreed to be $8,280 which was paid for cleaning expenses. A future claim for domestic care and assistance of $121,695 is made.
Conformably with my findings that the plaintiff's rotator cuff injury is unrelated to the circumstances in which she injured herself while travelling on the defendant's bus, I do not propose to make any award for past and future care and assistance. The plaintiff is currently aged 73 and is approaching old age. She has a long history of medical problems, including a repair to her other shoulder.
If I have erred in this regard, I note that the plaintiff would nevertheless, notwithstanding her other physical infirmities, be unable to get over the threshold.
Concluding remarks
The amount to be awarded to the plaintiff is $1,442.80.
The amount awarded to the plaintiff falls below the threshold in r 42.35 Uniform Civil Procedure Rules 2005 (NSW), which provides:
"42.35 Costs order not to be made in proceedings in District Court unless Court satisfied proceedings in appropriate court
(1) This rule applies if:
(a) in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and
(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.
(2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted."
Accordingly, liberty to apply in relation to costs has been granted. However, given the smallness of the sum, I invite the parties to consider agreeing issues as to costs, to avoid further expenditure. This was a causation issue of some complexity and, without wishing to express a concluded view, it was not unreasonable to commence and continue these proceedings in this court, given the amount of time and cross-examination involved and the fact that Queensland legislation applied.
Orders
(1)Judgment for the plaintiff for the sum of $1,442.80.
(2)Costs reserved with liberty to apply.
(3)Exhibits retained for 28 days.
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