Janette Anne Crow v Graeme Lewis Miller No. SCRG 91/3068 Judgment No. 3851 Number of Pages 5 Damages

[1993] SASC 3851

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (1), OLSSON(2) AND PERRY(3), JJ

CWDS
Damages - Personal injury - musculo-ligamentous injury to thoracic spine - some persistent symptoms - plaintiff fit only for three days per week work as nursing sister prior to trial - judge not satisfied that she was still unfit for full time work - award $22,660 (reduced by $580 due to error in calculation) including $7,500 past economic loss $5,000 future economic loss and $8,560 (assigned value of 8) for non-economic loss - upheld on appeal.

HRNG ADELAIDE, 5 March 1993 #DATE 5:3:1993
Counsel for appellant:         Mr D Greenwell
Solicitors for appellant:     Brown Aston Hamilton
Counsel for respondent:         Mr T Forrest
Solicitors for respondent:     Stratford and Co.

ORDER
Appeal dismissed.

JUDGE1 KING CJ There are before the court an appeal and cross appeal with respect to a judgment entered in the District Court, awarding damages to the appellant for injuries sustained in a road accident which occurred on 20 March 1988. 2. The accident was a rear end collision, in which the appellant sustained a musculo ligamentous strain to the thoracic spine. She also sustained a minor injury to the neck and shoulders which cleared up within about a month. The symptoms from the musculo-ligamentous injury to the thoracic spine, however, persisted. 3. The appellant is a qualified nursing sister, and was aged 36 years at trial. The learned judge gave judgment for the sum of $22,660, inclusive of $800 interest. The damages component were as follows: Past economic loss $7,500, future economic loss including loss of a chance $5,000, non economic loss $9,360. 4. The appellant gave evidence at trial of considerable pain and disability, interference with many of her activities, and diminution of her enjoyment of life. There was medical evidence in the form of medical reports substantiating the existence of the musculo-ligamentous injury and of persistent effects of it. It was the task of the learned trial judge to assess the appellant and the evidence which she gave, and to endeavour to arrive at a true understanding of the levels of her pain, discomfort, and disabilities. To a considerable extent, this being a musculo-ligamentous injury, the assessment is dependent upon the weight to be attached to the appellant's account of her own sufferings and disabilities. 5. The learned judge did not accept the appellant as a reliable witness. His views are expressed in his reasons for judgment at p.139. He said:
    "Although there can be no doubt, as I find, that she suffered
    severe and disabling injuries as the result of the subject
    accident, I must say that I was left with a very strong feeling
    at the end of the day that the plaintiff had tended to
    exaggerate, at least in part and at least to some extent, the
    nature and extent of her symptoms, as well as her experiences
    and of her asserted disabilities.
    The plaintiff was in the witness box for a not insignificant
    time. Having taken particular note of her demeanour I have
    concluded that she was not a person suffering from a lot of
    physical discomfort, at least as I saw her at that time, at any
    rate. I observed her most carefully whilst giving her
    evidence. Having done that, and having carefully considered all
    the evidence before me, I have reached the conclusion that
    although the plaintiff was basically honest, and that she had no
    intention of embarking upon a course of conduct deliberately
    calculated to deceive the court, I am nevertheless satisfied
    that she has not been completely open, frank, and truthful. I
    thought, for example, when listening to the litany of her
    complaints, that she did not miss many opportunities to colour
    things in a manner which she obviously perceived as being
    favourable to her claim.
    For all these reasons I have concluded that this is not a case
    where I am prepared to accept the plaintiff as a totally
    accurate and completely subjective witness to be relied upon and
    to be believed on all the aspects of her case without
    reservation. My impression of her is not that she is dishonest
    but, rather, that she is given, perhaps unconsciously, to
    exaggerate her perception she has of her bodily feelings.
    Having reached this conclusion, I have scrutinised the
    plaintiff's evidence carefully before making any findings based
    exclusively upon it." 6. Mr Greenwell, who appeared for the appellant before us, has attacked his Honour's conclusions as to the reliability of the appellant's evidence. He contended that the trial judge based his conclusion upon misunderstandings of passages in the evidence which he used to discredit the appellant, but which are not capable, in Counsel's submissions, of supporting the conclusions which the judge drew. I have considered each of the submissions made by Mr Greenwell in this respect, and each of the passages in the evidence to which he referred. No doubt different minds will attach a different degree of weight to the passages in the evidence to which reference was made, and to their significance from the point of view of the appellant's credibility, but I see nothing in anything that was put by Mr Greenwell which would tend to shake an appellate court's faith in the assessment which the trial judge made of the reliability of the appellant as a witness. 7. I see no reason why this court should not accept the trial judge's impressions in that regard, formed, as they were, not only having regard to specific points in the evidence, but also with regard to the evidence taken as a whole, and, in particular, to the impression which he formed of the respondent in the witness box. It is notorious that witnesses use language in different ways to express their bodily sensations. Some have a habit of using language which understates, and others language which overstates, the reality of their bodily feelings. It is part of the task of a trial judge to endeavour to discern the reality which underlies the language which is used. I see no reason to doubt that the learned judge has performed this task satisfactorily. 8. His Honour reached certain conclusions which were expressed as follows at p.145:
    "I do not accept that the plaintiff has been and continues to be
    disabled to the extent deposed to by her; either as the result
    of the subject accident or otherwise. 9. My finding is that her way of life and her enjoyment of life's amenities was substantially impaired in the initial stages of the accident. I further find that the impairment has continued to date, but on a gradually reducing basis. I am satisfied, as I find, that the plaintiff has made a substantial recovery from the injuries which she received. In my judgment, if the plaintiff is still experiencing the problems to which she has deposed, those problems are causally linked to the subject accident and its sequilae only to a very limited extent. Accepting Mr Eriksen's opinion, as I do, it is my opinion, as I find, that in any event, whatever her present symptoms might be, those symptoms will lessen and come to normality in the course of the next 12 months or so, and I so hold'. 10. I find the learned judge's reference to the minor extent of the causal link of any problems which are now experienced to the subject accident, somewhat puzzling. The only other possible causes of any problems which the appellant now experiences, other than the subject accident, could be certain incidents which occurred in the course of her employment in the period between the subject accident and the trial. It may be that the judge was treating those as an independent cause, not related to the accident. If that was his intention, I think it was an error. I think that, on the whole of the evidence, it must be accepted that such additional discomfort as the appellant experienced following those incidents was an exacerbation of the condition which resulted from the subject accident. Nevertheless, the consequences of the incidents in the course of the employment were transient in nature, and, I think, do not have a big bearing upon the degree of suffering which the appellant has experienced, and none at all upon her present and future disability. 11. The learned judge assigned a value of eight on a scale of 1 - 60 in assessing non economic loss and I think that, in all the circumstances, that was a proper and reasonable assessment. Even accepting, as I would, that the consequences of the incidents which occurred at work were the result of the subject accident, the numerical value of eight would still be a proper and reasonable assessment of the non economic loss, and I would not vary it. In this respect, I should mention that there is a cross appeal by reason of a mistake made in the multiplier which was to be used in relation to that numerical value, to arrive at the figure for non economic loss. The judge, as the result of an error in the transcript, used the figure of $1,170 instead of $1,070, and, in consequence, the assessment of damages must on that account be reduced by $800. Mr Greenwell also attacked the figure for past economic loss. He claims that this figure had been agreed between the parties at the sum of $9,647.28, and that that figure should have been included in the judgment and not discounted. It is clear that the learned judge treated the agreement as relating only to the arithmetical calculation which would follow if the appellant had lost, as she claimed, two days a week from work in consequence of the accident. The appellant was working part time as a nursing sister at the time of the accident. She did not lose any significant time from work following the accident and, in any event, as she is not to be compensated, by virtue of the provisions of the Wrongs Act, for the first week, there was no amount to be included in the damages for loss of earnings immediately following the accident. 12. Her evidence was, however, and it was accepted, that if there had been no accident she would have commenced full time work in October 1990. Her evidence was that she was precluded from doing that by reason of her injuries, and that that loss continued until trial. 13. Having perused the transcript of what passed between counsel and the trial judge, I have reached the conclusion that the trial judge was correct in his interpretation of what was agreed between the parties. I think that it was an agreement only as to the arithmetical calculation involved in the loss of two day's work, for the period from October 1990 until the date of trial, and that the judge was at liberty to make such discount to that figure as he thought was warranted, having regard to the evidence. 14. He was entitled and, indeed, required to take into account the ordinary contingencies of life. There was moreover, in the present case, a further contingency, namely, the possibility that the appellant would have been without remunerative work for a period of even as much as 12 months, by reason of undertaking a course of training to obtain the triple nursing certificate. That was a contingency only, of course, but it was a contingency which had to be taken into account. 15. It may be thought that the amount of the discount applied by the learned judge was considerable, and other judges may have discounted the figure to a somewhat lesser extent. I do not think, however, that there is any basis upon which this appellate court could interfere, and I think that the sum of $7,500 for past economic loss must be upheld. There is one qualification to that, and it is this: The judge has evidently misunderstood the calculation underlying the agreement, to the extent that he thought that it did not take account of the week immediately following the accident for which damages were not to be allowed. But it is agreed by counsel that it did take account of that figure and, therefore, the sum of $220 must be added back into the award of damages for that reason. 16. Mr Greenwell also criticised the amount allowed by the judge for future economic loss. His Honour expressed his conclusions on that point at pp.160 in the following passages. Referring to a report of the surgeon Mr Eriksen, his Honour said:
    "In his report dated 31 July 1991 Mr Eriksen said: 'I would not
    assign a significant degree of disability which would prevent
    her from undertaking her general activities at this stage, and I
    believe that the symptoms she is experiencing at this time would
    lessen towards normality in the future'." 17. That future was identified at the end of the quotation from the report. The quotation from the judgment goes on:
    "That future was identified by Mr Eriksen as being likely to
    clear within a period of 12 to 18 months, if the plaintiff were
    to undergo a general fitness programme, with stabilising and
    strengthening exercises. The opinions expressed by Mr Eriksen,
    which I accept, and the totality of the evidence adduced at
    trial, have led me to conclude, as I find on the balance of
    probabilities, that if the plaintiff is now still unfit for
    normal nursing duties on a full-time basis (and I'm not
    satisfied that she is), then in my judgment that unfitness for
    those duties is no longer a condition of the subject accident
    and sequelae, and I so hold.' 18. I do not think that there is any basis in the evidence for holding that any unfitness which presently exists is attributable to any cause other than the subject accident. If his Honour's view that that might be the case were a decisive factor in his assessment of future economic loss then I think that it would be necessary for this court to interfere. However, it is necessary for the appellant to prove the loss and the extent of the loss. 19. The appellant, largely by reason of the fact that she did not convince the judge that her disabilities were as great as she deposed to, failed to satisfy the judge that she was, at the time of trial, and would be, in the future, unfit to work a five day week as a nursing sister. In order to recover a substantial amount by way of future economic loss it was essential for the appellant to gain from the trial judge, a finding, on the balance of probabilities, that she was presently unfit to engage in full-time duties. She failed to do that. 20. Her case necessarily depended, to a great extent, upon full acceptance of her evidence as reliable and the judge found himself unable to give that acceptance. His Honour expressed his reasons for allowing the sum which he did allow in the following passage at p.163:
    "I am satisfied, as I find on the balance of probabilities, that
    as a result of her injuries the plaintiff has lost some small
    chance to compete on equal terms with the next applicant for
    employment on the open labour market, a chance which admittedly
    she had and which, in my view, was hers as a right. I am also
    satisfied that as a result of the disabilities with which the
    plaintiff has been left she has probably lost some small chance
    to freely exercise the whole spectrum of her skills on a free,
    full and totally unrestricted basis. It is my opinion,
    therefore, as I find on the balance of probabilities, that the
    nature and extent of the plaintiff's injuries are likely to
    interfere with or diminish her future earning capacity and in
    all probabilities that will be productive of some very small
    economic loss at some time in the future. I mention also that
    in fixing the quantum of the plaintiff's damages I have given
    some consideration to the fact that she is not now as free and
    unrestrictive as she would have been able and/or to move from
    place to place in order to find and/or keep suitable
    employment." 21. I think on the evidence in this case, and having regard to his Honour's assessment of the appellant, that was a proper approach to the assessment of future economic loss and that, assessed on that basis, the sum of $5,000 is reasonable. 22. In my opinion then the appeal should be dismissed, the crossappeal should be allowed and the amount of the judgment should be reduced by the sum of $580, thereby reducing it to the sum of $22,080. There will be an order that the appellant pay to the respondent the costs of the appeal and crossappeal to be taxed.

JUDGE2 OLSSON J I agree.

JUDGE3 PERRY J I agree.