King v Barrie
[2020] ACTSC 36
•21 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | King v Barrie |
Citation: | [2020] ACTSC 36 |
Hearing Date(s): | 5 December 2019 |
DecisionDate: | 21 February 2020 |
Before: | Crowe AJ |
Decision: | See [53] |
Catchwords: | CIVIL LAW – APPEAL – appeal from the Magistrates Court – personal injury claim – where the plaintiff made a claim for physical and psychological injury as a result of a motor vehicle accident – where the motor vehicle accident was minor – whether the Chief Magistrate erred in determining that the plaintiff did not suffer any injury |
Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Griffiths v Kerkemeyer (1977) 15 ALR 387 Jones v Dunkel (1959) 101 CLR 298 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Mason v Demasi [2009] NSWCA 227 Urbaniak-Bak v Prail [2014] ACTSC 171 |
Parties: | Belinda Joy King (Appellant) Janet Barrie (First Respondent) Insurance Australia Limited Trading as NRMA Insurance (Second Respondent) |
Representation: | Counsel A Muller (Appellant) W Fitzsimmons SC (Respondents) |
| Solicitors Maliganis Edwards Johnson (Appellant) Sparke Helmore Lawyers (Respondents) | |
File Number(s): | SCA 37 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Chief Magistrate Walker Date of Decision: 28 June 2019 Case Title: King v Barrie & Anor Citation: [2019] ACTMC 21 |
Crowe AJ
Introduction
On 28 June 2019, Chief Magistrate Walker, as she then was, handed down her decision in relation to the claim for damages made by the plaintiff in relation to a motor vehicle accident which occurred on 25 June 2016 (the 2016 accident). For ease of reference, I will refer to the parties as they were in the litigation in the Magistrates Court.
Her Honour found in favour of the defendants and dismissed the plaintiff’s claim.
On 15 July 2019, the plaintiff filed a Notice of Appeal from her Honour’s judgement. That notice was amended at the commencement of the appeal hearing on 5 December 2019.
Decision in the Magistrates Court
The circumstances of the accident were described by her Honour as follows:
[1] The Plaintiff, Ms Belinda King (now married and known by her married name of Shedden), was leaving the Belconnen Shopping Mall car park on 45 June 2016. She was in a line of traffic backed up from the exit. She was driving her future husband's Ford Territory motor car ('the Territory'). Ms Janet Barrie, driving a Honda Civic ('the Honda'), collided with the rear of the Territory in what the parties agree was a low impact collision. Ms Shedden sues the First Defendant, Mrs Barrie, and the Second Defendant, her insurer, NRMA, in the tort of negligence. She alleges that she suffered low back pain, trochanteric bursitis of her left hip, aggravation of pre-existing neck and thoracic pain and aggravation of amaxaphobia (a fear of travelling in a motor vehicle) as a result of the collision.
Her Honour noted that the defendants had admitted a breach of the duty of care on the part of Ms Barrie, but denied that the plaintiff had suffered any injury in the accident. Her Honour saw the issues which she was required to determine in the following terms:
[4] In determining whether Ms Shedden suffered damage as a result of the insured's breach of duty, there were three main areas of contention which were:
(a) Just how low-impact the collision was for the purpose of determining whether it was capable of causing injury;
(b) What, if any, injuries Ms Shedden suffered as a result of the collision; and
(c) In the event that she did, what, if any, additional domestic assistance was required as a result of any injury suffered in the collision.
In relation to the magnitude of the impact of the motor vehicle accident, her Honour referred to the evidence of Ms Barrie (provided by way of a statement obtained shortly after the accident), the description of the damage done to the vehicles and a report from a bio-mechanical engineer, Dr McIntosh. Her Honour then concluded as follows:
[11] Having regard to this evidence, and applying common sense, it seems highly unlikely that the collision between the smaller Honda and the larger Territory, which caused only a dent to the number-plate of the Honda, resulted in the need for replacement of the Territory's towbar and associated work. However, ultimately, it is not necessary to make a finding one way or another as to this as the evidence is conclusive as between the parties that the collision was very low impact.
Her Honour then proceeded to address the question of injury:
[12] The far more difficult determination is as to whether an impact of that type could and, more particularly, did cause the physical and psychological injuries complained of by Ms Shedden.
[13] As to this, Dr Mclritosh concluded at paragraphs 99 and 100 of his report of 16 June
2017:
'In my opinion, on balance, in line with the likely circumstances of the accident, no proportion of Belinda King's injuries was caused by the insured driver… In consideration for (sic) Ms King's potential history of prior and/or chronic musculoskeletal neck, back and hip conditions, the collision may have exacerbated pre-existing symptoms for a short period, e.g. days to a week.'
[14] The weight which can be attributed to this opinion is influenced by a consideration of how it sits with the remaining evidence. For the reasons which follow, whilst I find that the collision was capable of exacerbating pre-existing symptoms for a short period, I cannot be satisfied on the balance of probabilities that it, in fact, did so.
Her Honour then set out a detailed summary of the oral evidence of the plaintiff. From this, it is evident that a major difficulty for the plaintiff was that she had not disclosed to the medico-legal assessors the nature and extent of pre-2016 accident spinal symptoms which she had suffered due to prior motor vehicle accidents in 2009 and 2012. In fact, the plaintiff had suffered an aggravation of these pre-existing symptoms shortly before the 2016 accident which had led to the plaintiff attending nine episodes of chiropractic treatment between 7 May 2016 and 22 June 2016. The plaintiff attended the chiropractor again for treatment on 29 June 2016 (occurring mere days after the motor vehicle accident on 25 June 2016). However, no reference was made to the recent motor vehicle accident in the clinical note of that attendance on 29 June 2016.
Her Honour then noted:
[36] A review of the Gungahlin Family Practice clinical notes discloses that, whilst the last prescription for Mobic was in July 2014, Ms Shedden was prescribed Endep in relation to her complaints of ongoing pain after that time. In a consultation with Dr Banerjee on 16 May 2016 she complained of 'back pain'. In a further consultation with Dr Banerjee on 25 May 2016, she complained of long-standing neck/back pain and that she was seeing a chiropractor twice a week. An MRI scan of her cervical and thoracic spine was requested: It was noted at that same consultation that Ms Shedden was getting a referral to a psychologist by a general practitioner at a different practice. She next saw Dr Paul Gooding on10 June 2016 when there was discussion regarding the use of Endep and It was noted that her neck was improving with chiropractic treatment. These consultations all occurred in the weeks preceding the 2016 collision.
[37] She then saw Dr Gooding on 28 June 2016, three days after the motor vehicle accident. At that consultation she complained of:
'low back pain came on immediately after accident and worse again next morning; 2d later lower back worse and headache; tingly around r shoulder blade; neck the same (pre-existing neck pain no worse)'. ·
On examination, the doctor noted amongst other things 'lumbar region paraspinal muscle spasm'.
After referring to some ongoing physiotherapy treatment and some treatment in 2019 for suspected trocherantic bursitis, her Honour then turned to the claimed aggravation of the plaintiff’s amaxaphobia condition due to the 2016 accident. This claim was supported by Dr McMahon (a psychologist), who assessed the plaintiff on 16 February 2017. In cross-examination it was put to Dr McMahon that the accident was a very minor one. Her Honour summarised that evidence as follows:
[40] ...When the triviality of the accident was put to him, Dr McMahon noted that for a person with a pre-existing vulnerability
'for her to have such a strong neurotic reaction to such a minor event... It Is not uncommon in people who have significant disordered personality and proneness to developing a neurotic condition.'
Whilst he assessed that the accident 'seemed to be material in her anxiety, I mean, to the extent that it's further trauma on her already quite traumatic background', he conceded that he did not have a baseline comparison. He did not agree in cross examination that the passage of time necessarily improved Ms Shedden's anxiety level following the 2009 and 2012 accidents as without proper treatment for someone with a trauma background the effect 'can simply become kind of cumulative’. He recommended a brief course of cognitive behavioural therapy over six sessions. Ms Shedden has not undertaken that recommended treatment.
The plaintiff qualified two other medical experts, namely Dr Bentivoglio (an orthopaedic surgeon) and Dr Le Leu (an occupational physician). Dr Bentivoglio, in his report dated 14 March 2017, concluded that the plaintiff’s back and hip symptoms had been caused by the 2016 accident. Dr Bentivoglio was unable to reach a conclusion in relation to the plaintiff’s neck symptoms. However, under cross-examination Dr Bentivoglio conceded that he was not aware of the level of force involved in the 2016 accident, that he had not been given a history of the plaintiff’s prior back and hip pain, nor had he been told that the plaintiff had not fully recovered from neck symptoms after the 2009 accident. Dr Bentivoglio also agreed that there were no objective signs of injury to any relevant part of the body and that he was thus heavily reliant on the accuracy of the symptoms described to him by the plaintiff and the history provided by the plaintiff.
Her Honour concluded in relation to Dr Bentivoglio’s evidence:
[45] Having regard to both the limited and the inaccurate history available to Dr Bentivoglio at the time of his assessment of Ms Shedden, I must conclude that his report is unreliable in relation to the injuries she suffered and particularly the causation thereof.
The second medical expert relied on was Dr Le Leu. In his report of 1 April 2017, Dr Le Leu expressed the opinion that the plaintiff had suffered as a result of the 2016 accident an exacerbation of pre-existing cervical and upper thoracic whiplash-associated disorder, possible lumbar disc injury with the suggestion of a nerve root injury on the left and trochanteric bursitis.
However, under cross-examination it became apparent that Dr Le Leu had not been given a full or accurate history of the plaintiff’s symptoms prior to the 2016 accident. In particular, Dr Le Leu had been led to believe that the plaintiff had recovered from the 2009 and 2012 accidents. Dr Le Leu was not aware of her complaints in 2016 and the chiropractic treatment she was receiving for them. Dr Le Leu was also not aware of the forces involved in the 2016 accident. He accepted that if the forces were trivial, it was unlikely that the plaintiff would have suffered significant injury, although in re-examination he expressed the view that if the plaintiff did have pre-existing neck, lower back and hip conditions she would be more susceptible to injury or aggravation in a low speed collision.
Her Honour said in relation to Dr Le Leu:
[50] The same reasoning applies to Dr Le Leu's report as to Dr Bentivoglio's; I must conclude that his report is unreliable in relation to the injuries she suffered and particularly the causation thereof.
The defendant relied on the evidence of Dr Muratore (a sports and exercise physician), who prepared a report dated 22 November 2017. Dr Muratore was provided information by the defendants as to the minor nature of the 2016 accident. Indeed, the history Dr Muratore took from the plaintiff was consistent with that information. Dr Muratore concluded that it was unlikely that the plaintiff would have suffered any injury given the triviality of the accident. It appears that that opinion was unshaken by the cross-examination.
Two lay witnesses also gave evidence before her Honour. They were the plaintiff’s husband, Mr N Shedden and his mother, Ms J Shedden. Mr Shedden gave evidence in relation to the condition of his Ford Territory (the car the plaintiff was driving in the 2016 accident) before the accident and the circumstances under which the tow bar came to be replaced. He also gave evidence as to the plaintiff’s need for increased domestic assistance after the 2016 accident compared with the situation before it. Ms Shedden gave evidence as to complaints made by the plaintiff during periods after December 2016 when the plaintiff and Mr Shedden had lived with her.
Her Honour referred to Mr Shedden’s evidence about the condition of his vehicle. However, her Honour did not specifically refer to his evidence about the plaintiff’s increased need for assistance.
Her Honour’s conclusions were expressed in the following terms:
[53] Having considered the totality of the evidence, I find Ms Shedden's evidence unreliable. She either failed to recollect or sought to downplay the significance of low back pain and hip pain that she had experienced in the period since the 2009 accident. Her inaccurate recall of her symptomatic state in the weeks prior to 2016 collision is significant. The level of pain complained of in her back and hips at that time is entirely inconsistent with the claim of a new injury to her lower back and hips immediately following the collision. It is also inconsistent with the low level of neck symptoms she said in her oral evidence that she was experiencing prior to that collision. It is apparent that she has complained of and sought treatment for all of the conditions she now claims for over many years at varying levels. Her failure to provide a reliable and comprehensive history of both her pre-existing conditions and the nature of the collision to her own medico-legal examiners rendered their evidence unreliable. Where her evidence is inconsistent with documentary records, I prefer the latter. In conclusion, I find on the balance of probabilities that she had pre-existing symptoms of neck, thoracic, low back and hip pain present in April and May 2016 and intermittently for many years before that. I am not satisfied that the 2016 collision caused any new injury or aggravation of pre-existing injury or degenerative change as a result of the 2016 condition.
[54] …In this case, there is no dispute as to the very minor nature of the collision and, for the reasons I have detailed, I am unable to rely on Ms Shedden's evidence in respect to the Impact of the motor vehicle accident upon her. The circumstances of this case require that I prefer Dr McIntosh's opinion given the unreliability of the plaintiff’s evidence.
[55] It follows that the plaintiff has failed to establish on the balance of probabilities that the collision described did, in fact, cause the injuries for which she claims. Whilst I accept that it may have been capable of causing an exacerbation of pre-existing neck and thoracic pain, in the particular circumstances of this case, I am not satisfied that it did so.
Notice of Appeal
The plaintiff sought and was granted leave at the commencement of the hearing of the appeal in December 2019 to file an Amended Notice of Appeal. The grounds of appeal in that notice were as follows:
4. The grounds of the appeal are that her Honour the Chief Magistrate erred in:
a.Giving undue weight to entries made in the Plaintiff’s clinical notes by treatment providers, both prior to and following the Accident;
b.Rejecting in their entirety the opinions expressed by Drs Bentivoglio and Le Leu in their respective reports;
c.Failing to make any findings whatsoever about the evidence of Nigel Snedden [sic] in respect of his observations of the Plaintiff prior to and following the Accident; and
d.Failing to give any or any adequate reasons for apparently rejecting evidence corroborative of the Plaintiff’s allegations of injury, including:
i.The opinion of Dr John McMahon;
ii.The entry made by Dr Gooding in the Plaintiff’s clinical notes on 28 June 2016, which included reference to lumbar region paraspinal muscle spasm; and
iii.Mr Snedden’s [sic] oral evidence; and
e.Failing or declining to make any finding about the existence or otherwise of damage to the tow bar of the Plaintiff’s vehicle.
Principles of Appeal
It is uncontroversial that the appeal is a rehearing based on the evidence in the court below; see Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[53]. No question of further evidence in the appeal arises. I have been referred to the comments by Rares J in Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 where his Honour noted at [20]-[21]:
[20] In Fox v Percy (2003) 214 CLR 118 at 126-127 [25] Gleeson CJ, Gummow and Kirby JJ held that:
“… the appellate court is obliged to conduct a real review of the trial and … of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).”
[21] And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.
I approach the current appeal in accordance with these principles.
Submissions
Submissions of the Plaintiff (Appellant)
Ground 4a
As to ground 4a, the plaintiff relied on the decisions of the NSW Court of Appeal in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (Huseyin) and Mason v Demasi [2009] NSWCA 227 (Mason) to support the proposition that caution was required in relying upon the pre-accident clinical notes in assessing the nature and degree of the symptoms which the plaintiff was suffering prior to 25 June 2016. Mr Muller, who appeared for the plaintiff, argued by reference to the chiropractic notes in particular, that they were so abbreviated as to be of little assistance in determining the extent of the symptoms which the plaintiff was suffering at that time. In that context, Mr Muller submitted that her Honour should have accepted the explanation given by the plaintiff in her oral evidence. That is, that the plaintiff had suffered a flare up of symptoms due to work conditions which had improved after 4 weeks of treatment.
Ground 4b
Ground 4b refers to her Honour's rejection of the evidence of Doctors Bentivoglio and Le Leu. Mr Muller submitted that a review of the oral evidence of the doctors supports the proposition that while they certainly revised the opinions expressed in their reports, neither “capitulated” on the issue of whether or not the accident was likely to have caused some injury to the plaintiff.
Mr Muller argued that it was an error for her Honour in those circumstances to reject the Doctor’s opinions supporting the proposition that the plaintiff had probably suffered some injury in the accident.
Ground 4c
In relation to ground 4c, Mr Muller submitted that her Honour erred in not properly addressing Mr Shedden’s evidence as to the damage done to his vehicle, and in failing to address any of Mr Shedden’s evidence as to the impact of the 2016 accident on the plaintiff at all. As to the first of these arguments see [29] below. As to the second, Mr Muller argued that it was an error for her Honour not to explain why she apparently did not accept the evidence of Mr Shedden as to the increased domestic limitations suffered by the plaintiff after the 2016 accident.
Ground 4d
Mr Muller argued in support of ground 4d that her Honour erred in two additional respects (additional to the error asserted in relation to Mr Shedden’s evidence as summarised at [26] above). One of these related to the clinical note of Dr Gooding on 28 June 2016. Although her Honour refers in her reasons for decision to that clinical note, she provides no explanation as to how an objective medical finding of a sign consistent with injury (that is, muscle spasm) can be reconciled with the Court’s finding that the plaintiff suffered no injury at all in the 2016 accident.
The second error is said to have been made in relation to the evidence of Dr McMahon. Mr Muller argued that Dr McMahon’s clinical opinion, aside from the history provided by the plaintiff, was that the plaintiff had suffered an aggravation of her amaxaphobia condition. That opinion was buttressed by Dr McMahon’s evidence that the prior accidents had made the plaintiff particularly vulnerable to the exacerbation of her condition should she be involved in a further accident, even though it might be relatively minor. It was submitted that her Honour provided no reasons for rejecting Dr McMahon’s opinion.
Ground 4e
In support of ground 4e, it was argued that contrary to her Honour’s view that it was not necessary for her to make a finding about the extent of the damage to the tow bar on the Ford Territory, that was a critical issue in the case which the Court was required to decide. That issue, it was submitted, was relevant to the assessment of Dr McIntosh’s opinion and indeed, to the medical evidence. It was also relevant to the question of whether the plaintiff suffered any injury in the accident. In that context, Mr Muller pointed to the evidence of Mr Shedden that the panel beater to whom he had taken his car had advised him that they had to replace his tow bar because it had been damaged in the accident.
Submissions of the Defendants (Respondents)
Mr Fitzsimmons SC appeared for the defendants in the appeal. He relied on a written outline of submissions and also the oral submissions made at the hearing. I will summarise those submissions in the order of the grounds of appeal.
Ground 4a
As to 4a, Mr Fitzsimmons SC distinguished the cases of Huseyin and Mason from the current proceedings. He noted that there was no challenge to her Honour’s finding as to the unreliability of the plaintiff. The clinical notes, particularly of the treating chiropractor, had been primarily used by the defendants’ counsel before her Honour to challenge the plaintiff’s credit having regard to the history she had given to the medico-legal experts (qualified on her behalf) of not having suffered low back or hip pain before the 2016 accident. In that regard, it was the very existence of the notes recording treatment, and the clear statements of the plaintiff herself in the new client questionnaire of 30 April 2016, which her Honour was entitled to rely upon.
It was submitted that her Honour was also entitled to rely upon the lack of reference to the accident in the clinical notes, and the fact that so far as they recorded complaints and the areas being treated there did not appear to be a change over the period of treatment before and after the 2016 accident. In relation to that, Mr Fitzsimmons SC made the point that the plaintiff tendered the notes. The plaintiff was cross-examined on them and did not call evidence from the relevant treatment provider(s) to clarify or correct what appeared from the notes themselves.
Ground 4b
In relation to the rejection of the evidence of Doctors Bentivoglio and Le Leu, the defendants submitted that the evidence of the medical experts is only as good as the reliability and accuracy of the history provided to them allows. Mr Fitzsimmons SC referred to the evidence of both doctors in some detail to submit that her Honour was correct to discount the opinions expressed by these doctors as to causation.
Ground 4c
In relation to the evidence of Mr Shedden, Mr Fitzsimmons SC argued, firstly, that the evidence about the damage to the tow bar was unsatisfactory. The onus was on the plaintiff to lead admissible evidence to establish that the tow bar was damaged in some significant way in the accident in order to establish that the force of the collision must have been greater than was otherwise apparent. it was submitted that the evidence of Mr Shedden fell short of that, particularly given his disclaimer under cross-examination that he was “not a panel beater”.
The second aspect of Mr Shedden’s evidence was his account of the extra domestic assistance required by the plaintiff after the 2016 accident. As to that Mr Fitzsimmons SC pointed to the evidence of the plaintiff that for the most part she avoided mopping and vacuuming before that accident. This was contrasted with the evidence of Mr Shedden that the plaintiff did perform that work before the accident and that he was required to help her with those tasks after it. In this context, it was submitted that even if her Honour erred in not referring to this evidence, if she had done so it would have made no difference to her analysis.
Ground 4d
In relation to ground 4d Mr Fitzsimmons SC argued as follows:
(1) The evidence of Dr McMahon fell into the same category as that of Doctors Bentivoglio and Le Leu. The unreliability of the history provided to him undermined his opinion.
(2) The single entry in the GP clinical notes on 28 June 2016 was insufficiently probative having regard to her Honour’s findings in relation to the reliability of the plaintiff and the triviality of the accident. It was not enough in the context of the other evidence in the case to warrant a finding that the plaintiff did suffer some injury in the accident.
Ground 4e
Ground 4e related to the significance of the damage to the tow bar. The defendants submitted that in the context of the evidence from the plaintiff, the first defendant, and Dr McIntosh, it was open to her Honour to conclude as she did. The evidence of Mr Shedden did not take things further (see [34] above) and the plaintiff failed to call expert evidence to establish that there was some structural damage done to the tow bar in the accident to warrant its replacement. Moreover, it was open to her Honour to have drawn a ‘Jones v Dunkel inference’ (see Jones v Dunkel (1959) 101 CLR 298) from the apparently unexplained absence of evidence from the plaintiff’s mother who was in the Ford Territory at the time of the accident.
Consideration
Ground 4a
I am not persuaded that her Honour gave undue weight to the clinical notes. Her Honour’s reference to them in para [29] of her reasons for decision is in my view unremarkable. It was relevant for her Honour to record that, somewhat surprisingly notwithstanding the caveats listed by Basten J in Huseyin and Mason, the notes do not record any reference at all to the 2016 motor vehicle accident, or a worsening of symptoms as a consequence of it. However, I do not see her Honour as having concluded that that absence in itself proved that the plaintiff had not suffered an injury. It appears from her conclusions at [53] that her Honour’s main reason for concluding that the plaintiff was unreliable as a witness was her failure to provide an accurate history to either Dr Bentivoglio or Dr Le Leu as to her spinal/hip symptoms before the 2016 accident. It appears from para [53] of her Honour’s reasons that it was the plaintiff’s unreliability combined with her finding as to the triviality of the collision which led her Honour to conclude as she did.
Ground 4b
Her Honour heard the oral evidence (I gather from the transcript that each gave evidence by telephone link to the Court) of Doctors Bentivoglio and Le Leu including the cross-examination by Senior Counsel for the defendants in which they largely resiled from the opinions they had expressed in their reports as to the cause of the plaintiff’s condition. It is true that both still maintained some support for the proposition that the 2016 accident, even if minor, caused an aggravation of her chronic problems from the prior accidents. However, in each case that depended upon assumptions as to the nature and extent of her pre-2016 accident symptoms. It seems to me that it was open to her Honour, in light of her doubts as to the reliability of the plaintiff’s evidence, to discount the evidence of these doctors as she did.
Ground 4c
It is true that her Honour does not address Mr Shedden’s evidence on the domestic assistance he says he provided to the plaintiff after the 2016 accident. It may be that her Honour saw that evidence as relevant only to the quantification of the Griffiths v Kerkemeyer (1977) 15 ALR 387 claim made by the plaintiff. The finding of ‘no injury’ meant that her Honour did not have to determine the issue of damages.
While it is true that the trial judge is not obliged to refer to every piece of evidence to indicate acceptance or rejection (see per Basten JA, McFarlan JA agreeing, in Huseyin at [4]) it does seem to me that the evidence of Mr Shedden on this issue was also relevant to whether or not the 2016 accident did cause an exacerbation of the plaintiff’s pre-existing neck, low back and hip complaints. It was evidence which was sufficiently important to require her Honour to deal with it, particularly given her Honour’s doubts as to the reliability of the plaintiff.
The defendant’s argument as to the detail of the extra assistance provided by Mr Shedden after the 2016 accident has some force. However, resolution of the apparent inconsistencies between the evidence of the plaintiff and the evidence of Mr Shedden depends to some extent on the assessment to be made of the credit of each witness. While it may be accepted that her Honour was not impressed with the plaintiff, she made no comments as to the credit of Mr Shedden. In my view, in failing to consider this evidence and making no finding on it, her Honour erred.
I will address Mr Shedden’s evidence as to the tow bar damage under ground 4e below.
Ground 4d
The first issue argued under this ground related to the evidence of Dr McMahon. I am not persuaded that Dr McMahon’s evidence fell into the same category as that of Doctors Bentivoglio and Le Leu, as submitted by Mr Fitzsimmons SC. Dr McMahon’s oral evidence is at pp 560-569 of Appeal Folder A. As I read it, while he conceded that he would have been assisted by having access to the report of Leesa Morris (a clinical psychologist) dated 12 July 2013, he did not resile from the opinion which he had expressed in his report. That is, that the 2016 accident, although minor, had aggravated the Specific Driving Phobia (Amaxaphobia) which the plaintiff had suffered as a consequence of the two prior accidents. While Dr McMahon accepted that he had to rely on the history of the plaintiff, he also noted that it was his professional assessment of the plaintiff during interview that she demonstrated increased anxiety in her account of the 2016 accident; see Appeal Folder A pp 562-563.
Her Honour summarised Dr McMahon’s evidence at para [40] of her reasons (see [10] above). However, her Honour did not explain why she rejected his opinion that the 2016 accident had aggravated the plaintiff’s psychological condition. In my view this constituted an error. It was not enough to simply conclude that the plaintiff was unreliable. It was implicit in the evidence of Dr McMahon that even accepting that the plaintiff was an unreliable historian, it was still his professional opinion that the 2016 accident had caused her mental harm. Given the importance of the issue, her Honour was required to explain why she rejected that opinion in concluding, as she did, that the plaintiff had failed to establish that the 2016 accident had caused any injury at all. Indeed, it is notable that her Honour does not refer specifically to the alleged mental harm claim in her reasons at paras [53]-[55].
The second issue argued under this ground related to the clinical note made by the plaintiff’s treating GP, Dr Gooding, on 28 June 2016. The note read as follows:
mva on 25/6/16
was stationary in carpark driving seat seatbelt on
rear impact
moderate impact (shunted car)
since accident
low back pain came on immed after accident and worse again next morning
2d later lower back worse and headache
tingly around shoulder blade
neck the same (pre-existing neck pain no worse)
Reason for visit:
Whiplash-Associated Disorder Grade 1
History:
lower back pain
some soreness r shoulder
o/e
back flexion and ext to 60
lat flexion to 50% r and 60% left
shoulder full rom but sore last 60 degrees on r side
tender spasm r shoulder blade
and lumbar region paraspinal muscle spasm
slr 60 r and 70 l side
neurol ? and ? intact…
Her Honour summarised this note at [37] of her reasons, see [9] above. In submissions the plaintiff’s counsel in the Magistrates Court drew her Honour’s attention to the clinical note and to the proposition that the paraspinal muscle spasm was an observable sign recorded by the plaintiff’s treating GP three days after the accident. In other words, it was an objective sign which did not rely on a report of the plaintiff. In a case where the defendants were asserting that the plaintiff had suffered no injury at all it was incumbent upon her Honour to explain why she did not accept the contents of the clinical note (and particularly the recorded muscle spasm) as indicating that the plaintiff probably had suffered some degree of injury in the accident.
It is to be remembered that the case pleaded and advanced by the defendants at hearing was not that the plaintiff was a fraud. The defendants’ case was that the accident was so minor that it was unlikely to have caused injury. That case was directly put to the plaintiff in cross-examination. However, it was not put to her that she had deliberately lied to her GP and manufactured responses to the physical examination which the GP conducted. In that context, the clinical note of the treating GP became a particularly important piece of evidence in relation to the key question of whether the plaintiff had suffered any injury in the accident. In my view, it was so important that that the clinical note could not be simply rejected on the general basis that the plaintiff was an unreliable witness. Indeed, her Honour specifically said in para [53] of her reasons that she would prefer the contents of the documentary records over the plaintiff’s testimony. That conclusion was open to her Honour, however it required, in the circumstances of this case that she provide her reasons for rejecting the inferences which she was asked to draw from the clinical note. Her Honour erred in failing to explain why she rejected the contents of that note as evidence that the plaintiff had suffered some injury in the accident.
On this point, Mr Fitzsimmons SC argued that the presence of muscle spasm might have just been a sign related to the ongoing lower and upper spinal symptoms which had lead to the course of chiropractic treatment from May 2016 onwards. That is a possibility, however the plaintiff had attended her GP on 16 May, 25 May and 10 June 2016 in relation to her spinal symptoms. There was no record at any of these attendances of muscle spasm. Nor, so far as I can understand them, was there any reference in the clinical notes of the treating chiropractor of muscle spasm prior to the 2016 accident. In the absence of an allegation that the plaintiff was a fraud, or that she had suffered some other aggravation injury shortly before she saw her GP on 28 June 2016, the natural inference from the clinical note of the attendance on that day would be that the plaintiff had, on the balance of probabilities, suffered the aggravation of her pre-existing spinal condition in the 2016 accident.
Ground 4e
There is some force in the conclusion reached by her Honour that it was not really necessary for her to make a finding about the nature and extent of the damage to the tow bar. On any view, as her Honour said, the accident was a “low impact” one. The only evidence that the accident had caused damage to the tow bar requiring its replacement was elicited by way of a hearsay statement from Mr Shedden in his evidence in chief (see Appeal Folder A p 515, transcript 24 June 2019 p. 82, lines 15-20.). In my view, that was an inadequate basis for the argument that the accident was other than a minor one. The plaintiff in her own evidence had said that the collision had just caused a “small jolt” to the Ford Territory. There were a number of reasons why the panel beater might have decided to replace the tow bar. It may have suffered some damage, not observable on casual inspection, due to a previous incident (Mr Shedden had only purchased the vehicle a short time before the accident). It may have been replaced as a cautionary step, given that there was some indication of impact on the tow bar. In the absence of evidence from the panel beater, or some other appropriately qualified expert, I do not see any error in her Honour’s conclusion at para [11] of her reasons.
Conclusion
I have concluded that her Honour erred in failing to deal with the evidence of Mr Shedden in relation to the affect of the 2016 accident on the plaintiff’s capacity for domestic tasks, the evidence of Dr McMahon and the contents of the 28 June 2016 GP clinical note. In the context of this case, there is a real risk that the failure to determine the significance of that evidence has resulted in an injustice to the plaintiff. There must be a real prospect that taking that evidence into account could lead to a finding that the plaintiff did suffer some physical and psychological injury as a result of the 2016 accident. It may well be that the injury was minor given her ongoing physical and psychological conditions, however even a minor injury is sufficient to complete the tort of negligence. Once injury is found, the Court would be required to do its best to assess the damages flowing from that injury.
It is unfortunate that I am not able to make an assessment of the damages in this case to save the parties from the burden of a rehearing. Having regard to the finding of unreliability made by her Honour, which was certainly open to her, it is likely that any award of damages here would be modest. However, the quantification of damages for personal injury, and particularly general damages, depends upon the assessment the Court makes of the individual plaintiff. I am not able to make that assessment, not having seen and heard her evidence. In the circumstances it seems to me that I have no choice but to remit the matter for rehearing in the Magistrates Court.
Orders
The orders of the Court are:
(1) The appeal is allowed and the order made by Chief Magistrate Walker on 28 June 2019 dismissing the plaintiff’s claim is set aside.
(2) The matter is remitted to the Magistrates Court for rehearing.
(3) The respondents pay the appellant’s costs of the appeal.
(4) Order (3) is stayed for 14 days.
(5) During the period of 14 days from the date of these orders the parties have liberty to apply in relation to order (4) on two days notice.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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