Merrin v. The Nominal Defendant

[2007] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

Merrin v The Nominal Defendant [2007] QCA 135

PARTIES:

SEAN JOHN MERRIN
(plaintiff/applicant)
v
THE NOMINAL DEFENDANT
(defendant/respondent)

FILE NO/S:

Appeal No 8227 of 2006
DC No 42 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2007

JUDGES:

Williams and Holmes JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1. Leave to appeal refused with costs
2. Application for leave to adduce further evidence dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL
PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – application for leave under s 118(3) District Court of Queensland Act1967 – personal injuries – pain in neck and back following accident – evidence of resolution of symptoms and that further symptoms referable to pre-morbid pathology – evidence that degenerative change not affected by accident – whether open to learned primary judge to accept that evidence

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules1999 (Qld), r 766(1)(c)

Purkess v Crittenden (1965) 114 CLR 164, cited
Pickering v McArthur [2005] QCA 294, CA No 4013 of 2005, 16 August 2005, cited
Watts v Rake (1960) 108 CLR 158, cited

COUNSEL:

A R Philp SC, with G F Crow, for the applicant
R B Dickson for the respondent

SOLICITORS:

S R Wallace & Wallace for the applicant
Broadley Rees for the respondent

1. :  WILLIAMS JAThe circumstances giving rise to this appeal are fully set out in the reasons for judgment of Helman J.  I agree with his Honour’s reasoning resulting in an order that leave to appeal be refused with costs.  The application for leave to adduce further evidence should also be formally dismissed.

1. HOLMES JA:  I agree with the reasons of Helman J. and the order he proposes.

1. HELMAN J: The applicant, the plaintiff below, seeks leave to appeal against a judgment given in the District Court at Mackay. The applicant claimed damages for personal injuries suffered on 29 August 2002 when he was riding a bicycle on a road near Mackay and was forced off the road by an unidentified motor car towing a trailer and the left side wheel arch of the trailer struck him, causing him to fall from the bicycle and to suffer injuries to his neck, right elbow and hand, right hip and buttock, and lower back. The respondent, the defendant below, admitted that it was liable to compensate the applicant, leaving the only issue for determination the quantum of the applicant’s damages. After a trial lasting two days his Honour reserved his decision, and on 1 September 2006 gave judgment for the applicant for $23,667.84 made up of general damages of $20,000 for pain, suffering and loss of amenities, $944 for gratuitous services, special damages of $873.60, and various sums of interest adding up to $1,850.24. The applicant seeks leave to appeal against that decision under s. 118(3) of the District Court of Queensland Act 1967 asserting that an appeal is necessary to correct a substantial injustice and that there is a reasonable argument that there is an error in his Honour’s reasoning that should be corrected: see Pickering v. McArthur [2005] QCA 294. The applicant initially also sought leave under rule 766(1)(c) of the Uniform Civil Procedure Rules 1999 to adduce further evidence, but we were told at the outset of the hearing that he did not wish to pursue that application.

1. The applicant was born on 1 October 1971 and so is now thirty-five years old.  His Honour found he had been employed in various capacities (cleaner, house painter, groundsman, and labourer) until November 2005.  He was training to become a professional kick boxer and triathlete (swimming, running, and cycling) in August 2002.  It is argued on his behalf that had his Honour applied proper legal principles to the case a substantial award of damages would have been made:  had the principles explained in Watts v. Rake (1960) 108 CLR 158 and Purkess v. Crittenden (1965) 114 CLR 164 been applied the applicant’s damages should have been assessed at a sum far greater than that which his Honour arrived at.

1. His Honour found that in the incident the applicant suffered soft tissue injuries to the right hip, buttock, arm and hand, and musculo-ligamentous injuries to his cervical spine area, and to the lumbar spine area, with no discal injuries.  His Honour found that the applicant continued to suffer from pain and discomfort from his soft tissue injuries at least until he ceased to have physiotherapy.  His Honour noted that the evidence did not reveal when that was, but he referred to exhibit 20 which is a report dated 25 March 2003 from the Mackay Physiotherapy Centre signed by Ms Suzanne Ketsimur to Ms Ninetta Rigoli, rehabilitation adviser employed by the respondent.  Formal parts omitted, the report was as follows:

Sean was referred to physiotherapy for treatment of his right hip and lower back following an accident in September 2002.  He was first assessed on 28 January 2003, complained of tenderness of the right lateral hip area and aggravation of a chronic/recurrent pain in his right lower back.

On assessment there was tenderness at the greater trochanter with tightness of some of his hip muscles (Piriformis and Tensor Fascia Latae).  His lumbar spine range of movement was not greatly reduced but there was some increased tightness of his right mid lumbar spine.

Treatment consisted of stretches of his hip muscles, mobilisation and stretches for his dorso-lumbar spine.  Sean showed good improvement and was compliant with his home program.

On discharge he had minimal tenderness of the hip with no pain in the hip during any activities.  He had very mild tightness in his back which was probably pre-existing.  I have advised him to continue with his home stretching program.  Sean was successfully undertaking all his work and sporting activities.

I do not have any plans to review his [sic] at this stage.

1. His Honour concluded that it was reasonable to accept that by about the end of June 2003, approximately nine months following the incident, the applicant’s symptoms from his soft tissue injuries had largely, if not completely, resolved and that any further symptoms were referable to pre-morbid pathology.  It was on that premiss that his Honour assessed the applicant’s damages for pain, suffering and loss of amenities at $20,000.  The gratuitous services were provided, his Honour found, from 26 September 2002 to the end of March 2003.  The applicant’s case in essence was that although he had recovered from a number of his injuries caused in the incident, that was not true of permanent and disabling injuries he had suffered to his neck and lower back.

1. His Honour accepted the evidence of Dr Ian Dickinson, orthopaedic surgeon, concerning the state of the applicant’s neck and back.  Dr Dickinson examined him on 12 February 2004, when the applicant complained of pain in his neck and lower back, and provided a report dated 22 March 2004 following that examination.  Dr Dickinson saw x-rays of the applicant’s right wrist and elbow taken in September 2002, and x-rays of his cervical and lumbar spines, right hip, right wrist and scaphoid taken in August 2003.  The x-rays showed all of those parts to be normal.  Dr Dickinson recorded that clinically the applicant was normal, as he was radiologically.  There was some restriction of movement of the neck but that did not reflect any underlying significant pathology.  Although the applicant had continued to complain of pain, there was no particular abnormality reflecting any of his pains and there was no evidence that he had any impairment in any of the regions that were injured. 

1. Dr Dickinson gave a further report dated 18 May 2005 after he was asked to review reports of others and magnetic resonance imaging scans of the cervical, thoracic, and lumbar spines dated 29 June 2004 and the accompanying report.  Those films showed degenerative change at L4-5 with darkening of the disc on the T2 weighted image with a dorsal disc bulge.  That degenerative change was caused, Dr Dickinson said, by desiccation of the disc material.  The thoracic spine was normal.  The scans showed desiccation of the discs from C2-3 to C6-7 of the cervical spine with a slight dorsal disc bulge at C6-7.  There were other minor abnormalities detected.  Dr Dickinson recorded that the persistence of symptoms did not reflect any significant underlying pathology, other than pathology that had otherwise been present.  There were impairments, (i.e., pathology) in both cervical and lumbar regions but they were related, he said, to pre-morbid degenerative change, adding, ‘Such degenerative change has not been affected by the accident.  The presence of any significant cervical or lumbar injury would have led to significant disability at the time of the accident of 2002, which did not occur’.  Dr Dickinson concluded:

   In summary, there is no evidence that Mr Merrin has suffered any impairment as a result of the accident of 29 August 2002.

   There is no evidence that Mr Merrin is more susceptible to a future injury, and he will not require decompressive or fusion surgery.  Such surgery would only be necessary on the basis of radicular symptoms (symptoms into the arms or legs).

   There is no evidence that he would be at risk of further injury to the lumbar spine as a result of this injury.  The changes in the lumbar spinal x-rays are related to pre-existing degenerative change and not to injury.  Mr Merrin has continued at work despite the views expressed elsewhere.

2. The reference to views expressed elsewhere is to those of Dr David White, orthopaedic surgeon, who also gave evidence before his Honour.  Dr White had examined the applicant on 15 July 2003 and 19 April 2004.  On the latter day the applicant told Dr White that the only remaining effect of the incident was pain in the neck and lower back.  All other areas had, the applicant said, recovered slowly.  Dr White’s opinion was that the applicant had a ten per cent. whole‑person permanent impairment caused by the condition of his cervical spine of which two-thirds was attributable to the incident.  Dr White’s opinion was that the applicant’s neck was more vulnerable to the effects of minor trauma than might otherwise have been the case and that the consequence of any such injury might require consideration of decompression‑fusion surgery.  As to the applicant’s lumbar spine, Dr White gave the opinion that there had been a ten per cent. whole‑person impairment, there were no signs of pre-existing degenerative change in that region, and the pathological findings were, Dr White considered, the consequence of the incident.

1. His Honour recorded that much depended upon whether or not he accepted the applicant’s evidence as to pain in his neck and back following the accident:  para 29.  If he were to find that the applicant had no symptoms of pain in his neck or back prior to the incident but afterwards consistently complained of symptoms in those areas beyond the immediate aftermath of the incident, then, notwithstanding Dr Dickinson’s opinion as to the pathology visible on the MRI, it would be open to him, his Honour said, to find that the applicant’s complaints of continuing symptoms were attributable to the incident.  His Honour carefully examined the relevant evidence:   the records of the Mackay Base Hospital, a medical certificate dated 31 August 2002 issued by the applicant’s general practitioner, a notice of accident claim under the Motor Accident Insurance Act 1994 dated 9 September 2002, a written statement dated 27 September 2002 the applicant gave to an investigator or assessor appointed by the defendant, an additional information form dated 16 December 2002, the general practitioner’s letter of referral to the physiotherapy centre dated 20 January 2003, Ms Ketsimur’s report, accounts of the applicant’s step‑father (and employer) and wife, and the applicant’s admission at failure to consult a doctor for medication for neck or back pain from 2003 until May 2005. In addition, his Honour referred to the evidence of Dr Brett Halliday, consultant orthopaedic surgeon, who examined the applicant on 18 October 2004 in connexion with a further motor vehicle collision that took place on 25 February 2004 in which the applicant was injured. His Honour noted that although the applicant had included a passage in his statement dated 27 September 2002 that he was considering undergoing physiotherapy to his neck and lower back as they were still very stiff and sore, on a number of other occasions of significance he had not complained of neck or lower back pain, perhaps most notably in the additional information form. Furthermore, he told Dr Halliday that he enjoyed cycling and last raced in January 2004, that he was working then full time as a house painter, and that the painting was heavy and hard work. Dr Halliday concluded that the applicant had suffered soft tissue injuries in the cervical and lumbar spines in the collision of February 2004.

1. While his Honour appears to have accepted that there was no evidence of the applicant’s suffering from pain and discomfort in the neck and back areas prior to the incident, the conclusion based on Dr Dickinson’s evidence and the other evidence to which I have referred was clearly open to his Honour.  In short, his Honour concluded that the incident had resulted in temporary pain and discomfort in the neck and back areas up to approximately June 2003 and after that any symptoms could be attributed to the degeneration evident on the MRI scans, which, in the opinion of the orthopaedic surgeon accepted by his Honour, was unconnected with the incident.  In those circumstances I am not persuaded that it has been demonstrated that his Honour fell into error.  It was said on behalf of the applicant that there did not seem to be any basis to arrive at June 2003, but clearly enough his Honour allowed some extra time after the end of the physiotherapy treatment since absolute precision in such matters is not possible.  There is no basis for concluding that his Honour was not mindful of the principles explained in Watts v. Rake and Purkess v. Crittenden.  The applicant failed to establish his case, and, so far as a burden lay upon the respondent to introduce evidence on the issue raised on this application, it did so to good effect, in particular by calling Dr Dickinson.

1. For those reasons, I conclude that the grounds of the application have not been made out and I should refuse the applicant leave to appeal with costs.  The application for leave to adduce further evidence should also be formally dismissed.