Munday v Court
[2013] VSCA 279
•2 October 2013
COURT OF APPEAL
S APCI 2012 0125
| KERRYN LEE MUNDAY | Appellant |
| v | |
| JARROD COURT | Respondent |
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| JUDGES | WARREN CJ, PRIEST JA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 September 2013 |
| DATE OF JUDGMENT | 2 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 279 |
| JUDGMENT APPEALED FROM | Munday v Court (Unreported, County Court of Victoria, 21 June 2012, Judge Kings) |
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NEGLIGENCE – Transport accident – Damages – Appellant suffered injuries in a motor car collision in 1998 – Appellant alleged physical, psychiatric and psychological injuries – Whether assessment of damages by jury manifestly inadequate – Whether award reasonably open on view of evidence most favourable to the respondent – Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 – Whether the trial judge erred in charging the jury – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr VA Morfuni SC with Mr M J Walsh | Slater & Gordon |
| For the Respondent | Mr J Ruskin QC with Ms R N Annesley | Clark Toop & Taylor |
WARREN CJ:
The facts of this appeal are set out in the judgment of Priest JA which I gratefully adopt.
In essence, the appellant appealed a jury verdict awarding her damages of $70,000 for pain and suffering and $80,000 for pecuniary loss. The appellant claimed the award of damages was manifestly inadequate and therefore no reasonable jury could have given the verdict on the basis of the evidence before it.[1]
[1]See Hocking v Bell (1945) 71 CLR 460; John Fairfax Publishing v Rivkin (2003) 77 ALJR 1657; Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 303.
Turning to the grounds of appeal concerned with manifest inadequacy, it is relevant to start from the basic principle that this court looks at the matter from the perspective most favourable to the respondent.[2]
[2]Capers v State of Victoria [2011] VSCA 97, (Ashley JA, [35]); Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ).
In doing so, this court remains aware of its role as an appellate court assessing the jury verdict of a court below. Justice Kirby expounded this point in John Fairfax Publications Pty Ltd v Rivkin:[3]
In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons and in circumstances where only limited means are available to decide how the jury may have reached their conclusion. Nevertheless, the touchstone is – and should be – one of reasonableness. Nothing else would coincide with judicial authority. Nothing else would fit with the appellate court’s duty as a receptacle of statutory power. Reasonableness, rationality and fair process lie at the very heart of our legal system. There is no need to apologise for them, or to dispose of them, in deference to fictious or absolute notions or a blind faith in finality of legal process that has clearly miscarried.[4]
[3](2003) 77 ALJR 1657.
[4]Ibid 1682 (citations omitted).
His Honour cited with approval the following passage by Justice McHugh in Fox v Percy,[5] which sets out the well established test that must be met before a jury verdict will be overturned:
Juries give no reasons. Because that is so, appellate courts must act on the basis that the jury took that view of the evidence that was reasonably open to them and is consistent with their verdict. Nevertheless, in some cases no reasonable view of the evidence can support the verdict. In those cases the appellate court may intervene to set aside the verdict.[6]
[5](2003) 214 CLR 118; 77 ALJR 989.
[6]Ibid 1002; see also Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33.
Where an appellate court is asked to assess the evidence presented at trial, particularly medical evidence, it is important to consider the advantages available to the court at first instance. In Mobilio v Balliotis[7] Justice Brooking stated:
Further, where, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant's credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.[8]
[7][1998] 3 VR 833.
[8]Ibid 836.
In assessing medical evidence provided at trial, the court must keep in its mind that medical practitioners will often rely on the information given to them by the patient. If the information provided is believed to be unreliable by a court of first instance, then it is open to a judge or a jury to disregard that evidence. President Maxwell stated as such in TAC v Zepic:[9]
Of course, each expert practitioner would draw on his/her experience of such injuries in diagnosing, on the basis of the reported consequences, the injuries suffered by the particular patient. But that opinion would depend heavily on what the patient said about the consequences. In the present case, the accounts which Mr Zepic had given the practitioners could not be regarded as reliable, as his Honour found.[10]
[9][2013] VSCA 232.
[10]Ibid [91].
The credit of the appellant was put in issue by the respondent at trial, including as to the injuries alleged. Turning to the injuries relied upon by the appellant.
First was the spinal injury. Drs Miller[11], Jones[12] and Shannon[13] described the injury as muscular or soft tissue. Dr Fogarty considered there was no laudosis and that the plaintiff had a good prognosis.[14] Coupled with the medical evidence concerning the spinal injury was the surveillance films of the appellant.[15] The film showed the appellant moving around apparently pain-free, playing with her children and lifting school bags. The respondent made much of the behaviour and demeanour of the appellant to the jury.
[11]Trial transcript, 622.
[12]Ibid 826.
[13]Ibid 883.
[14]Ibid 791.
[15]Ibid 1107-1108; and described by Priest JA, [38].
Secondly, there were injuries to the feet. Significantly the appellant had suffered a pre-existing injury from jumping off a fence, but failed to disclose that fact to a number of medical practitioners. The plaintiff gave evidence that she had no pain from the pre-existing injury.[16] However, Dr Bourke said that the appellant would have suffered pain from an injury of that kind. Thus, it was open to the jury to form conclusions concerning the pre-existing injury and, also, the credit of the appellant. In addition, Dr Fogarty observed that the appellant was walking easily without a limp, had good foot movement and only suffered intermittent pain.[17] Dr Shannon said that the appellant had suffered a minor fracture from the accident, was suffering from pre-existing arthritis and had reasonable function of both feet.[18] Furthermore Dr Shannon considered that damage to the bone in the tarsometatarsal pre-dated the accident.[19]
[16]Ibid 571.
[17]Ibid 702.
[18]Ibid 884-8.
[19]Ibid 887.
It is apparent from the transcript[20] that the appellant hobbled around the courtroom during the trial contrary to the medical evidence of a number of doctors as to her capacity and the injury alleged.[21] Furthermore, the jury having been shown the surveillance film of the appellant, the respondent’s counsel made much of the fact that the appellant had been observed to walk normally in the film (compared with her hobbling in the courtroom during the trial). [22]
[20]Ibid 1100.
[21]Ibid: Dr Thomas at 512, Dr Jones, 875, Dr Shannon, 882 and Dr Burke, 512.
[22]Ibid 1108.
The third matter was the alleged acquired brain injury. There were differences in the medical opinions. Mr Dowling considered acquired brain injury was probable but another doctor, Dr Gibb said it was not. Essentially there was a contest of views between Dr Gibbs and Mr Dowling. Ultimately Dr Gibbs concluded that the appellant may have suffered a mild head or acquired brain injury, though he noted she may not have suffered one at all.[23] On the other hand Mr Dowling considered his tests hinted at a frontal lobe injury which may have explained the appellant’s displays of bad temper.[24] During the trial the appellant was intensively cross examined. Indeed she was in the witness box for approximately eleven hours. One of the matters that may have weighed on the jury’s judgment was the performance of the appellant in her university course described in some detail by Priest JA. Mr Dowling considered the results were irrelevant, though Dr Gibbs noted the appellant’s performance in his diagnosis as to the minor nature of a possible brain injury. However, in light of the evidence presented, it was open to the jury to conclude or at least ask the question as to how the appellant performed so well at university if she had an acquired brain injury. It was available to the jury to reject the evidence of Mr Dowling and prefer that of Dr Gibbs.
[23]Ibid 775.
[24]Ibid 360.
With respect to the brain injury, the appellant had run the case at trial that she suffered mood changes since the accident. Her evidence was to the effect was that she had been a happy outgoing person before the accident but afterwards she had been bad tempered and difficult. In this respect it is usually the evidence of the plaintiff as witness that is the strongest evidence.[25] Here the mother of the appellant gave evidence about how difficult the appellant had become, including a period of six months when the appellant did not speak to her.[26] There was also the incident (as described by Priest JA) of the appellant storming out of the appointment with the psychiatrist, Dr Klepfisz. Moreover, there was evidence of an incident in January 1993 when the appellant was in the Western Hospital. Records tendered in evidence from the appellant’s stay at the hospital described her as being verbally aggressive, agitated and uncooperative. Dr Gibbs considered this behaviour demonstrated how the appellant responded to other people both before and after the accident.[27] It was open to the jury to conclude that the behaviour of the appellant was unusual or suspicious, especially in light of the evidence presented at trial of the appellant storming out of the room during an examination with Dr Klepfisz.[28] There was then the evidence of the road rage incident where the appellant crashed into the car of her ex-partner’s girlfriend, resulting in an intervention order.[29] It was not suggested at any point that this incident was related to the accident. There was also evidence by the appellant that she claimed she had become an anxious driver after the accident.[30] In fact the evidence was that she had incurred twenty speeding fines. In viewing this evidence in totality, it was open to the jury to prefer the respondent’s evidence to the effect that the appellant was prone to erratic behaviour before the incident and was untrustworthy regarding both the evidence she presented at trial and the information she provided to medical staff.
[25]De Agostino v Leatch [2011] VSCA 249, (Tate JA, [51]).
[26]Ibid 78.
[27]Ibid 967-969.
[28]Ibid 1069.
[29]Ibid 260.
[30]Ibid 264-5.
So far as the evidence of the sexual assault by the cab driver was concerned there was no question that that was attributable in any way to the defendant in this case. As to the circumstances of the cross examination of the appellant on this point, I entirely agree with the observations and conclusions of Priest JA. Furthermore, I observe that the forensic decision by senior counsel for the appellant at trial not to object to the evidence relating to the cash in the ‘brown paper bag’ in any event gave
rise to a Whisprun point.[31] It cannot be raised on appeal.
[31]Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598.
There was also the medical evidence of Dr Ingram who concluded that the appellant suffered mild depression and a minimal psychological injury.[32] In contrast, there was evidence of the appellant’s active engagement on social media. The jury could have concluded this was inconsistent with a person suffering from acquired brain injury or depression.
[32]Ibid 1012.
In summary, therefore, the jury took the view that was open to them. In particular, it was open to the jury to prefer the respondent’s medical evidence when it is borne in mind that the appellant was the primary informant of the medical evidence on her behalf.
Save for these remarks I agree with Priest JA as to the dismissal of grounds 1, 2 and 3 of the appeal essentially for the reasons his Honour set out.
It follows that I would dismiss the appeal.
PRIEST JA:
Introduction
Kerryn Lee Munday, the plaintiff in proceedings in the County Court, appeals against a jury verdict of 21 June 2012 awarding her damages of $70,000 for pain and suffering, and $80,000 for pecuniary loss, arising from a car accident which occurred on 15 April 1998.
She claims that she is entitled to a new trial because the award of damages is manifestly inadequate, and the trial judge misdirected the jury in a particular respect. For the reasons that follow, in my opinion none of her grounds can be upheld. I would dismiss the appeal.
The course of the proceeding
Ms Munday’s claim arose from a car accident on 15 April 1998. She was driving her car along the Melton-Keilor Road, Tarneit, when a motor vehicle driven by the respondent veered into her vehicle’s path, causing a head-on collision. The appellant was taken by ambulance to the Western General Hospital where she remained for three days. X-rays taken on 15 April 1998 revealed an impacted fracture at the head of the left fourth metatarsal bone, and an undisplaced crack fracture at the distal part of the left cuboid. There was also a possible undisplaced crack fracture at the neck of the right fifth metacarpal bone. Although nothing turns on it, I note that her son, Connor, who had been a passenger in Ms Munday’s car, was taken by ambulance to the Royal Children’s Hospital where he was treated for a fractured femur.
On 22 December 2008 a Writ was issued in the County Court. The Statement of Claim alleged negligence on the part of the respondent and sought damages. Ms Munday’s injuries were particularised as follows:
(a) Injury to the right foot:
(i)the development of degenerative change with associated inflammation;
(ii)damage between the first and second metatarsals; and
(iii)damage between the first metatarsal and the medial cuneiform bone.
(b)Injury to the left foot:
(i)fracture of the cuboid bone;
(ii)fracture to the fourth and fifth metatarsals in the left foot; and
(iii)degenerative change and loss of joint space.
(c)Chronic pain in the left foot and right foot.
(d)Injury to the neck.
(e)Injury to the upper back and shoulder.
(f)Injury to the back.
(g)Stress, anxiety and depression.
(h)Pain and suffering.
Following a trial of some 13 days’ duration, a jury awarded Ms Munday $70,000 for pain and suffering and $80,000 by way of pecuniary loss damages. Judgment was entered for pain and suffering damages in the sum of $57,440, and, after calculation of interest, for pecuniary loss damages in the sum of $89,393 (total $146,833). The defendant/respondent was ordered to pay the plaintiff/appellant’s costs up to 31 August 2010 on the applicable scale, and thereafter the plaintiff to pay the defendant’s costs on an indemnity basis.
By Notice of Appeal dated 4 July 2012 Ms Munday sought to set aside the jury’s verdict and to have the matter remitted for retrial. Although there were some 11 grounds of appeal in the Notice, all but three were abandoned on the hearing of the appeal. The three grounds agitated were:
1.The verdict of the jury on the claim for pain and suffering damages was manifestly inadequate, and contrary to the evidence and the weight of the evidence.
2.The verdict of the jury on the claim for pecuniary loss damages was manifestly inadequate, and contrary to the evidence and the weight of the evidence.
3.[The trial judge] erred in her charge by directing the jury to disregard any reference made in the evidence in the proceeding to the Transport Accident Commission.
Claimed manifest inadequacy of damages – grounds 1 and 2
The principles applicable to a claim that a jury’s award of damages is inadequate are well known. An unsuccessful plaintiff in the appellant’s position embarks upon a formidable endeavour, particularly where, as here, credit played such a pivotal role in the jury’s assessment. I am mindful of the undeniable advantage that the jury had in seeing and hearing the witnesses – particularly the appellant – and in making assessments from direct observation.
The first two grounds of appeal – which relate respectively to pain and suffering damages and pecuniary loss damages – claim manifest inadequacy in the damages awarded, and assert that the verdict was contrary to the evidence and the weight of the evidence. This amounts to a claim that it was not reasonably open to the jury to reach the verdict it did. To make good a ground that a verdict was ‘not open’ or ‘not reasonably open’ on the evidence is a demanding task. It amounts to a contention that a jury acting reasonably could not have, on the available evidence, arrived at the conclusion that it did. When such a contention is advanced, it is not enough for the members of this Court to disagree with the assessment of the evidence by the jury. Rather, before the appellant is entitled to succeed, the Court must determine that the evidence compelled a conclusion favourable to her.[33] The relevant principle was expressed by the High Court in Calin v The Greater Union Organisation Pty Ltd:[34]
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.
[33]Capers v State of Victoria [2011] VSCA 97; Duma v Mader International Pty Ltd [2013] VSCA 23; Willett v State of Victoria [2013] VSCA 76.
[34](1991) 173 CLR 33, 41 (Mason CJ, Deane, Dawson and McHugh JJ). See also John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; (2003) 77 ALJR 1657.
In approaching the claim of manifest inadequacy, the Court is required to look at the evidence from the view most favourable to the respondent, since it would have been a permissible course for the jury to act upon it. Ashley JA expressed the pertinent considerations in Capers v State of Victoria:[35]
[T]o say that the jury might have so concluded or to say ... that most judges and most juries would have so concluded, does not resolve the matter in the appellant’s favour. Again and again it has been emphasised that a party that carried the onus of proof upon an issue at a trial by judge and jury, and failed, faces a very difficult task in attempting to satisfy an appellate court that it should overturn the judgment which eventuated. Again, it is not in dispute that, in considering an appeal of the present kind, an appellate court must take a view of the evidence most favourable to the respondent; and must be persuaded, upon such a view of the evidence, that there was no evidence which left it reasonably open to the jury to resolve the matter as it did.
[35][2011] VSCA 97, [35].
This Court cannot simply form its own view upon the facts and substitute it for the view which might reasonably have been taken in respondent’s favour by the jury. The same general considerations apply to a finding by a jury on an assessment of damages. As Ashley JA said in Butcher v Australian Tartaric Products Pty Ltd:[36]
Consideration of the direct evidence and available inferences to determine whether ‘the damages are so large or so small as to be unreasonable – so excessive or so inadequate that no jury could reasonably have awarded them, or out of all proportion to the circumstances of the case’, taking a view of the evidence most favourable to the respondent to the appeal – requires careful analysis of the evidence, as exemplified by decisions of this Court.
[36][2009] VSCA 303, [8] (citations omitted). See also Hocking v Bell (1945) 71 CLR 430.
The task assumed by the appellant of persuading the Court that the jury, acting reasonably, could not have awarded the damages it did, was formidable. She has not, however, on the evidence most favourable to the respondent, persuaded me that either component of the award of damages that the jury returned was manifestly inadequate, or that it was not reasonably open for the jury to arrive at the award that it did.
In his final address to the jury, senior counsel for the appellant submitted that the jury might consider ‘a minimum range’ of damages for pain and suffering ‘somewhere between’ $280,000 to $320,000. Adopting different formulae for each figure, he suggested that the jury might assess lost earnings to be either $414,888, $714,355 or $1,554,125. Unsurprisingly, counsel for the respondent had suggested more modest figures. As to pain and suffering damages, he submitted to the jury that they ‘would be measured in tens of thousands of dollars’; and that the jury might think ‘anything more than $100,000 might be perfectly adequate for this if not too much’. With respect to loss of earnings, he submitted that if the jury thought that Ms Munday might return to the workforce, and that her injuries might provide some impairment, the jury might make ‘a sensible but modest allowance now for her against that contingency’. He said that if the jury applied that notion, ‘$100,000 would be more than adequate if taken now, to ensure against the risk of any future economic loss that might occur in the future’. As is obvious, the figures arrived at by the jury for each component of the damages award were much closer to those advanced by the respondent than by the appellant.
The appellant was born on 2 June 1967, so that she was 31 years old when the relevant car accident occurred on 15 April 1998, and was 45 at the time of trial. She is a single parent, her four children having been born in January 1992, December 1999, March 2001 and February 2003. At the time of the accident she was the sole carer of her son, Connor, who was six years of age.
Having left school without completing Year 11, the appellant worked in retail. She moved to Queensland and sold real estate, before moving back to Victoria in 1992. In about 1993 she commenced working for Spotless Service Australia Limited as a caterer. Although she mainly worked during weekend football games at the MCG, she also worked at the Grand Prix and at golf tournaments. She was employed by Spotless as a permanent casual. In the financial year ending 30 June 1997, she had declared income with Spotless of a shade more than $10,000. She had not attempted to work in the 14 years from the time of the accident to trial.
As I have already observed, X-rays taken on the day of the accident revealed an impacted fracture at the head of the left fourth metatarsal bone, and an undisplaced crack fracture at the distal part of the left cuboid, with a possible undisplaced crack fracture at the neck of the right fifth metacarpal bone. She also claimed to have sustained other injuries, including facial lacerations, and injuries to her back, neck and hips. At trial, the appellant gave evidence that her injuries continued to cause her significant disablement which rendered her totally unfit for employment; in particular, osteoarthritis in her feet, ankle soreness, lower back pain, shoulder problems, neck pain, cognitive disturbance and depression.
On the other hand, there was a body of evidence – which it was open to the jury to accept – that her injuries had not had the great impact on the appellant’s life that she asserted. At the time of the accident the appellant had a pre-existing injury to her right foot (an injury about which, it would appear, she had not been entirely frank with some of the medicos). As to her back, investigation post-accident showed disc and facet joint degeneration at L4/5, but no other significant abnormality. The mild disc degeneration was consistent with her age. There was no evidence of any spinal neurological damage. MRI findings suggested minimal ankle problems.
With respect to her psychiatric condition, various psychiatrists and psychologists diagnosed that the appellant suffered from depression. Opinions differed as to whether she suffered post-traumatic stress disorder. There was evidence that her psychological condition had improved; that she had pre-existing anger issues; and that an incidence of sexual harassment, and a breakup with her de facto partner, Paul Vella, had been deleterious to her psychological state. The appellant had undergone minimal physical and psychological treatment, and no ongoing treatment. Indeed, it seems that she had not sought treatment for 10 years.
As to her claimed acquired brain injury, a neuropsychologist, Dr Andrew Gibbs, gave evidence that the effects were probably nil. In this he differed from the opinion of a Mr Dowling, but it was open to the jury to prefer Dr Gibbs’ evidence.
Importantly, there existed a variety of matters which had the capacity to markedly impinge on the appellant’s credit. Thus in January 1998 she had jumped from a fence and hurt her right foot, but she failed to mention this injury to many of the doctors who assessed her for medico-legal purposes. Moreover, she had another car accident in 2005, which occasioned a sore back. She did not mention this, however, to a range of doctors. The appellant claimed that since the car accident she had never had a full range of pain free movement in her ankles. Medical evidence revealed, however, that she had shown a full range of ankle movement.
The appellant claimed that she walked slowly, put little effort into hygiene and her appearance, and had constant back pain which she rated as 10 out of 10. She told one doctor that she could not step out without crying because of her back pain. By contrast, several surveillance films seemed to show her performing various activities in an unrestricted manner apparently pain free, including walking, driving, bending, twisting, reaching up and carrying school bags. She walked without a limp, and she was seen shopping, socialising with friends, taking children to school and laughing. Her appearance was neat. Additionally, she had prolific conversations on Twitter and Facebook, which portrayed a very different image to that which the appellant portrayed to the jury.
There was further evidence that in 2005 the appellant had collided her vehicle into one driven by Mr Vella’s new girlfriend, and had assaulted her. She later pleaded guilty to careless driving and assault. The appellant also claimed to one doctor that she drove more slowly as a result of the accident, yet she had acquired 20 speeding infringements since 2001.
A deal of the evidence suggested that the appellant was an unreliable historian, and that she was uncooperative with at least some of those required to carry out medical assessments. One graphic example involved a psychiatrist, Dr Klepfisz, who reported that he endeavoured to assess the appellant for psychiatric purposes in August 2000. The appellant refused to talk about personal things such as family. When Dr Klepfisz told the appellant that he would not be able to do a complete assessment if she chose to be selective about her history and personal issues, the appellant became angry, called Dr Klepfisz a ‘prick’ and told him to ‘jam it up your arse’. She then stormed out of the room, slamming a door against a painting on the wall and kicking over a heater.
In my opinion, the concatenation of these factors may well have led the jury, acting reasonably, to the view that the appellant’s injuries were not as serious as she had made out, and that they had not caused her the considerable pain and suffering that she alleged. Hence, in my view the award of $70,000 for pain and suffering could not be said to be unreasonable. It certainly was not manifestly inadequate.
With respect to the damages for past and future economic loss, I am also of the opinion that the award of $80,000 was not manifestly inadequate. There was evidence from which the jury could reasonably have concluded that the appellant’s capacity for work was not as reduced as she had claimed.
The appellant sought damages for past and future economic loss to age 67. In assessing pecuniary loss damages, the jury were entitled, in my opinion, to have regard to the fact that the appellant had a limited pre-accident employment history. In the financial year preceding the accident she had earned only $10,000. She had not worked, or sought paid employment, for 14 years.
Following the accident, the appellant gave birth to three children in four years. The births, and the appellant’s responsibilities for the care of the children, affected her ability and motivation to return to work.
Post-accident the appellant had also started a business, Lerkun Goods, making and selling belts. That showed an ability to work and be organised. At one point she had put the children in childcare to run the business. She had also completed about two thirds of an undergraduate degree in psychology and philosophy at Deakin University. Her ability to complete subjects and achieve good results, may well have demonstrated to the jury that she could concentrate, function at an acceptable level and work. Moreover, she had represented herself over four days against experienced counsel in a case heard in the County Court in 2008. She cross-examined medical witnesses and, it might be thought, demonstrated the capacity to think and concentrate.
In light of these factors, it was open to the jury to ‘compensate [the appellant] to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of future unemployment or less remunerative employment’.[37] In my opinion, taking the evidence at the best for the respondent, the sum of $80,000 could not fairly be described as inadequate.
[37]Victorian Stevedoring v Farlow [1963] VR 594, 598; Club Italia(Geelong) Inc. v Ritchie (2001) 3 VR 447, 464 [58]; SB v State of NSW (2004) 13 VR 527, 614 [622].
Grounds 1 and 2 therefore cannot be sustained.
Claimed error in charging the jury – ground 3
In my opinion there is nothing in this ground.
Cross-examination of the appellant by senior counsel for the respondent contained a spirited, sustained and wide-ranging attack on her credit. Part of the cross-examination involved a suggestion that the appellant had not sought any psychological help for any condition arising from the car accident. Rather, it was suggested, the appellant had sought psychological treatment because of inappropriate sexual conduct directed towards her by a taxi driver. The taxi driver apparently had been arranged by the Transport Accident Commission shortly after the appellant’s car accident to convey her to hydrotherapy and physiotherapy appointments for treatment for injuries resulting from the accident. When the appellant asserted that she had been paid $10,000 by the driver and $5,000 by the TAC to compensate her for the taxi driver’s conduct, the cross-examiner’s questions – which might fairly be said to have been dripping with cynicism – sought to cast doubt on what she had said, asserting, in what was a not wholly fair course of questions, that the appellant was claiming that she had been paid ‘hush money’ from a ‘brown paper bag’.
There was no objection to this cross-examination by counsel for the appellant. It must be assumed that this was a deliberate forensic choice. In any event, in re-examination of the appellant, her counsel – with an attitude of some triumph – was able to produce and tender a Deed of Release which showed that the driver had indeed agreed to pay $10,000 to the appellant, and the Transport Accident Commission, also a party to the Deed, $5,000.
In her charge to the jury, the judge directed that it was irrelevant that the defendant might have had the Transport Accident Commission standing behind him. She went on to say, in a passage that is the foundation of ground 3:
Any reference to the TAC are [sic.] an irrelevancy and should not have been made and should be ignored. This includes any other problems the plaintiff may or may not have had subsequently.
An exception was taken by senior counsel for the appellant, in which it was submitted that the judge ‘unintentionally went too far’. The trial judge did not, however, redirect.
Somewhat unrealistically, in my view, it is contended that the effect of this part of the charge was to permit the jury to ignore the Deed of Release as being irrelevant, thereby depriving the appellant of having her credit rehabilitated with respect to the cross-examination which precipitated the Deed’s tender. I doubt that the jury were so bereft of intelligence or common-sense that the judge’s directions in the impugned passage would have been interpreted in the manner contended for. When considered as a whole, the part of the charge in which the criticised passage occurs is a direction – entirely proper – to ignore the fact that the defendant might have an insurer behind him. No juror with a modicum of sense would have interpreted the passage as an invitation to ignore the Deed of Release as irrelevant to a consideration of the appellant’s credit.
No error has been demonstrated. Ground 3 is without substance.
Conclusion
None of the grounds having merit, the appeal must be dismissed.
ROBSON AJA:
I have had the advantage of reading in draft the reasons of the Chief Justice and Priest JA. I agree with them that the appeal should be dismissed.
The appellant seeks to set aside the jury’s verdict in her favour on the grounds that no reasonable jury could have so awarded. The jury awarded damages of $70,000 for pain and suffering, and damages of $80,000 for pecuniary loss.
The appellant’s counsel conceded that the appellant’s credit was severely challenged during the trial. The appellant’s counsel said, however, that even if the jury did not accept the appellant’s evidence, there was nevertheless independent objective evidence of the injuries that the appellant sustained which warranted a much higher award of damages for both pain and suffering and economic loss.
I disagree. The objective evidence did establish that, as a result of the accident, the appellant suffered injuries to her left foot and other soft tissue issues in her neck and back. The difficulty with the appellant’s case is that, even accepting that the appellant suffered the injuries to her left foot and back, the evidence in support of the pain and suffering is essentially supported by her own testimony.
The jury were entitled to reject her evidence on this account. There was DVD footage showing her walking in a normal fashion and laughing and enjoying herself while socialising with people. Her evidence that she hobbled around was obviously not accepted by the jury. Priest JA has referred to many other instances where her credit was successfully challenged. Accordingly, in my opinion, the appellant has not established that it was not reasonably open to the jury to award damages of $70,000 for pain and suffering.
As for economic loss, the evidence suggests that the appellant did make an active decision on the birth of her four children to be a full-time mother. The jury were entitled to find that the appellant had elected to stay at home and raise her children. The fact that she had not applied for any job in 14 years spoke volumes as to the choice that she had made.
It may well be that the appellant is capable of doing tasks which do not involve her standing and walking. In fact, the evidence suggests that the appellant is an intelligent person, as she has successfully undertaken portion of a degree at Deakin University and conducted, on her own behalf, an earlier case in the County Court. Obviously, many occupations which do not involve long periods of standing and walking are open to intelligent individuals, including the appellant,.
In my opinion, it was reasonably open to the jury to find that the appellant’s economic loss was slim indeed, that the appellant had chosen a life of raising her children and further, that if she chose to go back to work, there was a wide range of occupations where she could find employment. In my opinion, the appellant has not established that it was not reasonably open for the jury to award $80,000 for economic loss.
For these, and the reasons given by the Chief Justice and Priest JA, I would dismiss the appeal.
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Key Legal Topics
Areas of Law
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Tort Law
Legal Concepts
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Negligence
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Causation
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Compensatory Damages
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Appeal
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