Mitchell v Rowe

[2004] WASCA 137

MITCHELL -v- ROWE [2004] WASCA 137

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 137
Court:	THE FULL COURT (WA)
Case No:	FUL:109/2003	Heard:	16 JUNE 2004
Coram:	MALCOLM CJ MURRAY J JENKINS J	Delivered:	16/06/04
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	HELEN MITCHELL GREGORY JOHN ROWE
Catchwords:	Damages Causation of harm Sufficiency of reasons of trial Judge Turns on own facts
Legislation:	Nil
Case References:	Garrett v Nicholson (1999) 21 WAR 226 March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 Lloyd v Faraone [1989] WAR 154 Stojkovski v Fitzgerald [1989] WAR 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MITCHELL -v- ROWE [2004] WASCA 137 CORAM : MALCOLM CJ

MURRAY J
JENKINS J

HEARD : 16 JUNE 2004 DELIVERED : 16 JUNE 2004 FILE NO/S : FUL 109 of 2003 BETWEEN : HELEN MITCHELL

Appellant

AND

GREGORY JOHN ROWE
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : MULLER DCJ

File Number : IND CIV 1063 of 2002

Catchwords:

Damages - Causation of harm - Sufficiency of reasons of trial Judge - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr K S Pratt
Respondent : Mr P R Momber

Solicitors:

Appellant : Trewin Norman & Co
Respondent : Peter Momber

Case(s) referred to in judgment(s):

Garrett v Nicholson (1999) 21 WAR 226
March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506

Case(s) also cited:

Lloyd v Faraone [1989] WAR 154
Stojkovski v Fitzgerald [1989] WAR 328


(Page 3)

1 MALCOLM CJ: I would ask Murray J to give the first judgment.

2 MURRAY J: The appellant sued the respondent for damages for negligence caused personal injuries. The case arose out of a motor vehicle accident on 20 July 2000. Basically the evidence was that the plaintiff's vehicle had been stationary when it was bumped from the rear by a prime mover and trailer driven by the respondent.

3 There was an initial bump and then there were three other bumps and the evidence in relation to that was the evidence given by the appellant, who described the way in which the accident happened and the effect of these impacts, if they may be so described, between the vehicles, upon her physically, as to whether they pushed her about in particular ways while she sat in the vehicle.

4 The respondent's negligence was admitted but the pleadings threw into issue the causation of the harm suffered by the appellant. An assessment of damages might be required as well, but the first and important matter for his Honour the trial Judge to determine was whether the injury sustained, of which the appellant complained as at the date of trial, had been caused by the accident or otherwise.

5 The appellant fell at that hurdle and her claim was dismissed with costs. She now appeals, seeking judgment for the amount of the damages provisionally assessed by the trial Judge or, perhaps more realistically, seeking that the matter be remitted for retrial to the District Court.

6 The grounds of appeal upon which she relies are:

"(1) The learned trial Judge erred in law by –

(a) finding that he was not prepared to accept the appellant (plaintiff's) direct evidence 'on its own'; and/or

(b) not giving any or any proper reasons for finding why he was not prepared to accept the appellant (plaintiff's) direct evidence 'on its own.'


(2) The learned trial Judge erred in law by not resolving by the giving of proper reasons the competing medical evidence."

(Page 4)

So both grounds of appeal attack the adequacy of the reasons provided by the trial Judge. The first criticises the way in which his Honour dealt with the question of the appellant's evidence, and the second criticises the way in which his Honour dealt with the medical evidence, which was also before him.

7 Those grounds are of course capable of establishing errors of law if the reasons were so deficient as to leave the reader unable to discern the reasoning process and the adequacy of the reasoning process employed by the trial Judge to reach the decision ultimately arrived at: Garrett v Nicholson(1999) 21 WAR 226, 237, [31].

8 I turn to the reasons provided by the Judge and observe that his Honour commenced by referring in some detail to the evidence given by the appellant as to the circumstances in which the accident occurred. His Honour highlighted the relevant aspects of that evidence and then discussed the evidence given by the appellant of the history of her disability and difficulties, the way in which they had developed, the treatment that had been obtained, and the incapacity for any relief to be obtained during a period of three years or thereabouts which had elapsed between the time when the accident occurred and when the matter came on for trial.

9 His Honour then went on to review thoroughly, and no complaint is made to the contrary, the medical evidence that had been provided. His Honour spoke of the way in which the opinions had been given, the extent to which they were supported by a history given by the appellant and the qualifications to those opinions in relation to the issue of causation.

10 In the end his Honour returned to the decision of the question of causation and par [32] and those following in his Honour's judgment mark the commencement of the fact-finding process. His Honour stated the approach he was to take to the resolution of that question by referring to March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506. He went on to correctly formulate what his Honour described as the critical issue, whether the appellant's diffuse pain state could be shown to be causally related to the accident.

11 As his Honour said, the answer to the question involved an examination of all the circumstantial factors that existed before, at the time of and following the accident. It also involved an assessment of the appellant as a witness. His Honour embarked upon that process

(Page 5)

immediately and spoke, not of difficulties in her demeanour and the consistency of her evidence, but of two particular areas where, as his Honour put it, she displayed uncertainty or there was difficulty in her testimony, firstly when cross-examined on the circumstances of the accident, particularly the minor nature of the impact, and secondly when questioned about her widespread and persisting symptoms of pain.

12 His Honour then embarked upon a consideration of what he described as the credibility of the appellant, by which it is clear his Honour meant, appropriately, the reliability of her evidence as establishing the causation of the symptoms from which she suffered at trial and for which she sued. His Honour, in my opinion appropriately, isolated the issues both in favour of acceptance of the appellant's evidence as being sufficiently probative of the issue of causation and those which tended against that view.

13 His Honour spoke of what he described as circumstantial factors militating strongly against the genuineness of the claim. He discussed the minimal nature of the impact involved in the collision and then went on to talk of the history of the appellant's pain and disability as she had provided it, and to relate that to the impact and the circumstances of the accident as a possible cause of that disability. His Honour spoke of her evidence in relation to the force of the impact and the effect that it had on her physically. He opposed that description in her evidence to the fact that there was no damage, or even a mark, to the rear of the car where the impacts were said to have occurred.

14 In addition, his Honour obviously considered, having regard to the medical evidence, that the nature of the impact between the vehicles was such that if it was creative of soft tissue injury upon her, it was remarkable that there had been no diminution of her symptoms and the persistence of her level of pain over the period of almost three years which had elapsed. His Honour contrasted the medical evidence about those symptoms to the accident as the cause of them and expressed a preference, which it is conceded, and properly conceded, was open to his Honour, for the opinion of the witness, the surgeon Mr Brash, that the symptoms were so widespread as to be inconsistent with the minor impact or series of impacts that occurred.

15 His Honour referred to the complete absence of any anatomical pathology to explain the plaintiff's diffuse pain state and concluded that he was not prepared to accept as establishing causation the direct evidence of the appellant herself. In his Honour's view the deficiency in her evidence

(Page 6)

was not made up by the evidence of medical witnesses which did not support the inference that more probably than not the accident was the cause of her symptoms and injuries. Indeed, as his Honour said, his view about that evidence was rather that the contrary inference was the one that which was reasonably open.

16 All of that seems to me to demonstrate a process of reasoning and a mode of handling the fact-finding process which is perfectly clear and eminently defensible. Thegrounds of appeal are, in my opinion, not made out and I would dismiss the appeal.

17 MALCOLM CJ: I agree with Murray J that the appeal should be dismissed. The grounds of appeal are in my opinion misconceived. Ground 1 contends that there was an error of law made by the trial Judge in finding that he was not prepared to accept the appellant's direct evidence on its own, that is to say, without corroboration. That is a finding of fact which involves no error of law whatsoever.

18 It was also contended in support of ground 1 that there was an error of law in not giving any or any proper reasons why his Honour was not prepared to accept the appellant's direct evidence on its own. That again is a finding based upon an assessment of the credibility of the evidence which was given, and, for the reasons which have been pronounced by Murray J, it would seem to me that those conclusions were clearly open to his Honour on the evidence that was before him. In relation to the circumstances of the accident and the absence of any damage to either of the two vehicles in question, the impact upon the appellant's vehicle must have been at its best minimal.

19 In relation to the medical evidence, it was open to his Honour as a matter of fact to draw conclusions about that evidence. In particular, his Honour accepted the evidence of Mr Brash that the symptoms were so widespread as to be inconsistent with the minor impact or series of impacts that occurred. This was a finding that was clearly open to his Honour, who also took into account the complete absence of any anatomical pathology to explain the appellant's diffuse pain state.

20 It was the combination of the absence of any pathology and the very minor forces involved in the accident that led to his Honour's conclusion that it was improbable that the appellant's condition was as she said it was or that it was caused by the collision. While his Honour did not have to find anyalternative cause for the appellant's condition, he did however

(Page 7)

have regard to the existence of a significant body of evidence to suggest that her complaints were psychosomatic in origin.

21 His Honour also found that the appellant's assertion that she recovered from her emotional trauma in a very short time was questionable. His Honour pointed out that, when she was examined by Dr Majda in May 2001, she was thought to have suffered a depressive illness which had been treated with the drug Zoloft. She had taken this drug for a substantial period, and while the dosage she took was small, it was sufficient, in the opinion of Dr Ng, to have masked what he described as a mild depressive disorder. It was equally possible, as the psychiatrist said, that she may not have had a depressive disorder at all.

22 His Honour noted that there were other stresses in the plaintiff's life. Together with symptoms of sleeplessness, loss of self-esteem, and constant tiredness, she was apprehensive about the court proceedings. His Honour was entitled to conclude, as he did, that, given the medical evidence, including that of the neurosurgeon, that stress, anxiety and depression are key factors in both the management and expression of pain in a person, it is possible that the appellant's condition was a product of her emotional or psychological state. However his Honour found, having made that observation, that it was not necessary for him to make any specific finding in relation to the issue. His conclusion was that it had not been proved on the balance of probabilities that the appellant's injury was causally related to the accident. That, in my opinion, was a conclusion which was clearly open, if not compelled, by the evidence that was before the trial Judge.

23 JENKINS J: I agree that, for the reasons given by Malcolm CJ and Murray J, the appeal should be dismissed.