PARTIES: John Hume (Appellant) Vicki May Walton (Respondent)
JUDGMENT OF: Tobias JA McColl JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 606/02
LOWER COURT JUDICIAL OFFICER: Sidis DCJ
COUNSEL: K P Rewell SC/E G Romaniuk (Appellant) D J Russell SC/B A Bachelor (Respondent)
SOLICITORS: Thomas Laycock (Appellant) Armstrongs (Respondent)
CATCHWORDS: COURTS AND JUDGES - reasons for decision - requirement that critical evidence be analysed - duty to give reasons for preferring one case over the other - Court of Appeal - orders - new trial - whether appellant's case was adequately considered by primary judge - whether "substantial wrong or miscarriage of justice" - Supreme Court Rules 1970 Pt 51, r 23. (ND)
DECISION: (1) Appeal allowed (2) Set aside the judgment of and orders made by her Honour Judge Sidis on 4 December 2003 (3) Remit the matter to the District Court for reassessment of the respondent's damages (4) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled (5) Costs of the first trial are to be within the discretion of the judge conducting the new trial.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 41223/03 DC 606/02
TOBIAS JA McCOLL JA
Monday, 9 May 2005
John HUME v Vicki May WALTON
Judgment
TOBIAS JA: I agree with McColl JA.
McCOLL JA: This is an appeal from a judgment of Judge Sidis delivered on 3 December 2003 in which she awarded the respondent $460,566.71 in respect of injuries sustained in a motor vehicle accident.
Liability was admitted. Accordingly the trial was concerned only with damages.
Background
On 4 June 1999 the respondent, then aged 44, was injured in a collision which occurred when the appellant’s vehicle turned into the path of the respondent’s vehicle which was travelling at a speed of about 70 kph.
As a result of the collision the respondent alleged she suffered:
(a) a fracture of the sternum;
(b) an injury to her neck, including a left C4/5 disc prolapse;
(c) an injury to her back;
(d) psychological injury, including depression.
At the trial the respondent’s case was that as a result of the injuries she sustained in the accident she was in constant pain, was totally incapacitated for employment and required significant assistance in activities of daily living, personal care and nursing care.
The appellant’s case, at trial, was that the respondent was substantially incapacitated prior to the accident as a result of suffering from chronic fatigue syndrome, a condition which was diagnosed in 1990, as well as depression. The appellant also contended that the respondent was exaggerating the disabilities from which she suffered as a result of the accident.
There was no dispute…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hume v Walton [2005] NSWCA 148
Case
[2005] NSWCA 148
Decision Date
CaseChat Overview and Summary
The appeal concerned an assessment of damages following a motor vehicle collision in which the appellant admitted liability. The respondent claimed significant ongoing pain, total incapacity for employment, and a need for substantial assistance with daily living and personal care, attributing these to injuries sustained in the accident, including a fractured sternum, neck and back injuries, and psychological injury. The appellant contended that the respondent was substantially incapacitated prior to the accident due to chronic fatigue syndrome and depression, and that she was exaggerating her post-accident disabilities. The appeal was heard by the Court of Appeal.
The central legal issues before the Court of Appeal were whether the primary judge had adequately considered the appellant's case in assessing damages. Specifically, the court was required to determine if the primary judge, having made adverse findings regarding the credibility of the respondent and her family, had failed to give sufficient weight to these findings. Further, the court considered whether the primary judge had adequately addressed inconsistencies between the respondent's complaints and the objective medical evidence, and whether appropriate inferences should have been drawn from the respondent's failure to call certain medical practitioners. The court also had to assess whether the damages awarded were manifestly excessive, and if any of these failings constituted a "substantial wrong or miscarriage of justice" justifying appellate intervention.
The Court of Appeal found merit in the appellant's argument that the primary judge's reasons did not adequately reflect her findings. While the primary judge concluded that the respondent and her family had understated her pre-accident condition and overstated her post-accident condition, and that the evidence did not support the claimed considerable disability, the damages awarded appeared to be consistent with acceptance of the respondent's case for substantial, long-term injury. The court noted that the primary judge's treatment of the medical evidence, particularly that of Dr. Cummine, suggested a potential inconsistency between her stated findings and the ultimate award. The court concluded that the primary judge's reasons did not adequately explain how she arrived at the damages awarded, given her critical findings about the respondent's evidence.
The appeal was allowed, the judgment and orders of the primary judge were set aside, and the matter was remitted to the District Court for a reassessment of the respondent's damages. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate available under the Suitors' Fund Act 1951 if otherwise entitled. The costs of the first trial were left to the discretion of the judge conducting the new trial.
Orders
Orders of the court
(1) Appeal allowed (2) Set aside the judgment of and orders made by her Honour Judge Sidis on 4 December 2003 (3) Remit the matter to the District Court for reassessment of the respondent's damages (4) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled (5) Costs of the first trial are to be within the discretion of the judge conducting the new trial.
Background
Background to the litigation
Liability was admitted. Accordingly the trial was concerned only with damages.Background On 4 June 1999 the respondent, then aged 44, was injured in a collision which occurred when the appellant’s vehicle turned into the path of the respondent’s vehicle which was travelling at a speed of about 70 kph. As a result of the collision the respondent alleged she suffered:(a) a fracture of the sternum;(b) an injury to her neck, including a left C4/5 disc prolapse;(c) an injury to her back;(d) psychological injury, including depression. At the trial the respondent’s case was that as a result of the injuries she sustained in the accident she was in constant pain, was totally incapacitated for employment and required significant assistance in activities of daily living, personal care and nursing care. The appellant’s case, at trial, was that the respondent was substantially incapacitated prior to the accident as a result of suffering from chronic fatigue syndrome, a condition which was diagnosed in 1990, as well as depression. The appellant also contended that the respondent was exaggerating the disabilities from which she suffered as a result of the accident. There was no dispute that the respondent had suffered from both chronic fatigue syndrome as well as depression prior to her accident. However her case was that these conditions had virtually resolved at the time of the accident. The essential issues on the appeal were:(1)whether, having made findings adverse to the credit of the respondent and members of her family who gave evidence corroborating her complaints of disability, the primary judge failed to attach any, or any adequate, significance to those findings in assessing damages;(2)whether the medical evidence of the respondent’s medical condition afforded objective, incontrovertible material inconsistent with her claim that she suffered little, if any, medical disability prior to the accident;(3)whether the primary judge failed to attach any, or any adequate, weight to medical evidence which was inconsistent with the respondent’s complaints about her post-accident disabilities;(4)whether the primary judge failed to draw appropriate Jones v Dunkel inferences having regard to the respondent’s failure to call medical practitioners who had treated her since the accident;(5) whether the damages awarded were manifestly excessive. The effect of issues (1) – (4), the appellant argued, was that the primary judge had failed to consider his case properly, resulting in a “substantial wrong or miscarriage of justice which justified appellate intervention: Pt 51, r 23(1), Supreme Court Rules 1970; Dixon v Whisprun Pty Ltd [2003] NSWCA 310.The primary judge’s reasons The primary judge noted that there was no dispute that the respondent had suffered a fractured sternum in the accident which had been treated “with no ongoing complaints”. She recorded that the respondent claimed “she is considerably disabled as a result of the accident to the point where she is unable to undertake any form of employment and that she remains in need of significant assistance by way of personal and domestic services”.
Evidence
Evidence Before The Court
Having reviewed the medical evidence the primary judge said:“The difficulties which I face in the assessment of the plaintiff’s claim would be obvious from that summary of the medical material. The real issue is the extent to which the plaintiff’s psychological condition has been exacerbated by this motor vehicle accident. In this respect the ideal person to observe and report upon the differences between the plaintiff before and after the accident would have been Doctor Lamb who had provided the bulk of the treatment to the plaintiff up to June 1999. I have no report from Doctor Lamb, with the exception of exhibit 4 which indicated that her opinion one week prior to the plaintiff’s accident was that she continued to suffer from chronic fatigue and from depression which were conditions that had been long term.Doctor Kent’s reports deal with the plaintiff’s physical complaints only. Nothing is said concerning the extensive history of depression and chronic fatigue. There is reference to some psychiatric treatment provided to the plaintiff, apparently according to one reporter, related to family dysfunction. I have received no reports in respect of that treatment nor do I have any explanation for the absence of that information.As far as the complaints of neck pain are concerned, having regard to the objective evidence, the plaintiff’s complaints appear to be of a considerably greater degree of disability and discomfort than one would expect. Both Doctor Spittaler and Doctor Cummine are not persuaded as to the need for radical surgery. In contrast to Doctor Ghabrial’s finding, Doctor O’Keefe in March 2001 could find no evidence of cervical spasm, although Doctor O’Keefe stated that the plaintiff had definitely had arthritis in her neck prior to the injury. As to the complaints of virtual paralysis of the left arm and the left side of the body, there appears to be no medical support for these complaints at all, except to the extent that they may emanate from what are very minor indications of problems in the plaintiff’s neck.In addition I have noted discrepancies between the medical histories and the evidence of the plaintiff, her husband and her son concerning the extent to which the plaintiff was involved in housework prior to the accident as compared to the extent of the assistance required after the accident.It was argued on behalf of the plaintiff relying upon authorities such as Purkiss v Crittenden 114 CLR 164 and Watts v Rake 108 CLR 158, that, having put her evidence before the Court the evidentiary burden transferred to the defendant to establish that the plaintiff’s current complaints were the result of her pre-existing condition rather than the result of the accident. However, it must be remembered that it is the plaintiff’s responsibility to establish a prima facie case.Taking all these matters into consideration I have reached the conclusion that there was a considerable amount of understatement by the plaintiff and her family concerning her condition prior to the accident and a considerable amount of over statement relating to her condition as it has existed after the accident. Having said that I note that the plaintiff did suffer in this accident a fractured sternum which must have caused considerable pain and discomfort, that she was involved in an impact of considerable force which would undoubtedly have placed strains on her body such as to generate soft tissue injury and perhaps symptomatology in a previously asymptomatic degenerative neck condition. I have some sympathy with Doctor Cummine’s views that in ordinary circumstances the consequent symptoms of discomfort and disability ought gradually to have resolved. I am satisfied that the immediate post accident period would have been one of substantial pain and disability which may well have aggravated the plaintiff’s depressive condition and her chronic fatigue.I do not accept that the evidence before me establishes that the plaintiff has suffered as a result of this accident the considerable disability of which she now complains.” (emphasis added)
Decision
Reasons for decision
In oral argument, Mr Rewell submitted that the flaws in the primary judge’s reasons were highlighted by the fact that both parties to the appeal contended that her Honour had preferred their medical evidence to the other party’s. Conclusion In my view, there is force in the appellant’s argument. The primary judge summarised the evidence given by the respondent and her family as indicating “a person of some considerable disability … related solely to the consequences of the accident”. She examined the documentary material tended by both parties to determine whether it supported that conclusion. Her Honour reached two clear conclusions:(1)that there was a considerable amount of understatement by the respondent and her family concerning her condition prior to the accident and a considerable amount of overstatement about her condition after the accident;(2)that she did not accept that the evidence established that the respondent had suffered the “considerable disability of which she now complains” as a result of the accident. These conclusions indicated that her Honour had accepted the appellant’s case. Other passages in the judgment also support the appellant’s argument that the primary judge appeared to favour his case. I have underlined the relevant portions of her Honour’s judgment in the preceding paragraphs. When dealing with the appellant’s medical evidence she appeared to indicate she accepted it. Moreover, she appeared to contrast that evidence with conclusions which were unfavourable to the respondent. In contrast, her Honour recited the respondent’s medical evidence without any indication that she accepted it. Indeed, as I have noted, she was critical of Doctor Kent’s evidence in a manner which, on my reading, indicated that she rejected it. Notwithstanding these matters, her Honour made an award of damages which could only be consistent, in my view, with acceptance of the respondent’s case, that she had suffered a substantial injury the effect of which was likely to afflict her for the rest of her life. A useful illustration of the gravamen of the appellant’ s complaints can be seen in the manner in which the primary judge dealt with Doctor Cummine’s evidence. Her Honour referred to his evidence immediately after expressing the conclusion that the plaintiff and her family had considerably understated her pre-accident condition and overstated her post-accident condition. She referred to the fact that the respondent had suffered a fractured sternum, that the accident involved an impact of considerable force “which would undoubtedly have placed strains on her body such as to generate soft tissue injury and perhaps symptomatology in a previously asymptomatic degenerative neck condition“ and then said she had “some sympathy” with Doctor Cummine’s views “that in ordinary circumstances the consequent symptoms of discomfort and disability ought gradually to have resolved”. As at least one of the respondent’s principal complaints concerned her ongoing disability said to be related to her neck condition, the primary judge’s expression of “some sympathy” for Doctor Cummine’s views might, ordinarily, be understood to reflect her acceptance of his opinion. In this respect it is relevant to note that her Honour only extracted a portion of Doctor Cummine’s opinion concerning the resolution of the respondent’s symptoms. The full text of Doctor Cummine’s opinion was as follows: “I consider in the subject accident she has sustained a fractured sternum and minor soft tissue injuries only to the neck, left shoulder and left upper arm. In the normal course of events I would have envisaged a gradual resolution of all such symptoms with no late complications or permanent impairment attributable to them.” (emphasis added)