Pearce v Burke

[2003] WASCA 109

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   PEARCE -v- BURKE [2003] WASCA 109

CORAM:   MURRAY J

WHEELER J
HASLUCK J

HEARD:   11 MARCH 2003

DELIVERED          :   28 MAY 2003

FILE NO/S:   FUL 12 of 2002

BETWEEN:   THOMAS GERARD PEARCE

Appellant (Plaintiff)

AND

MARY CATERINA BURKE
Respondent (Defendant)

Catchwords:

Tort - Personal injuries - Motor vehicle accident - Claim by plaintiff solicitor - Whether plaintiff permanently incapacitated from working as solicitor - Whether cognitive impairment caused by accident - Role of appellate court in regard to findings based on credibility of witnesses - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant (Plaintiff)        :     In person

Respondent (Defendant) :     Mr P R Momber

Solicitors:

Appellant (Plaintiff)        :     Hoffmans

Respondent (Defendant) :     Peter Momber

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

Clark v Ryan (1960) 103 CLR 486

Devries v Australian National Railways Commission (1993) 177 CLR 472

Rosenberg v Percival (2001) 205 CLR 434

Schultz v The Queen [1982] WAR 171

Villasevil v Pickering (2001) 24 WAR 167

Warren v Coombes (1979) 142 CLR 531

Wing Luck Foods v Lay Choo Lim [1989] WAR 358

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307

Bennett v Minister for Community Welfare (1992) 176 CLR 408

Briers v Atlas Tiles Ltd [1978] VR 151

Calder v Boyne Smelters Ltd [1991] 1 Qd R 325

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Commonwealth v McLean (1996) 41 NSWLR 389

Dykstna v Head (1989) Aust Torts Reps 80-280

Government Insurance Office of NSW v Evans (1990) 21 NSWLR 564

Graham v Baker (1961) 106 CLR 340

Husher v Husher (1999) 197 CLR 138

Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997

Kavanagh v Akhtar (1998) 45 NSWLR 588

Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

March v E&M H Stramare Pty Ltd (1991) 171 CLR 506

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Middleton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572

Moore v McDonald [2002] WADC 51

Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501

National Insurance Co of NZ Ltd v Espagne (1961) 105 CLR 569

Neall v Watson (1960) 34 ALJR 364

Paterson v Paterson (1953) 89 CLR 212

Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508

Purkess v Crittenden (1965) 114 CLR 164

R v Mackenney (1983) 76 Cr App R 271

R v Peisley (1990) 54 A Crim R 42

State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81¬003

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

Turley v Saffin (1975) 10 SASR 463

Watts v Rake (1960) 108 CLR 158

Western Australia v Watson [1990] WAR 248

Wickham v Walker [2002] WADC 167

Wilson v Peisley (1975) 50 ALJR 207

Wyong Shire Council v Shirt (1980) 146 CLR 40

1. MURRAY J:  I agree with Hasluck J, generally for the reasons given by his Honour, that the appeal should be dismissed.

2. WHEELER J:  I have had the advantage of reading in draft the reasons of Hasluck J, with which I agree.  I would dismiss this appeal.

3. HASLUCK J:  The appellant, Thomas Gerard Pearce, appeals from an award of damages in his favour in the District Court.  The appeal is brought principally on the ground that the learned trial Judge erred in the finding she made concerning the extent and duration of the appellant's incapacity to work as a solicitor as a result of the accident.  Related issues are raised as to the assessment of damages under several heads of claim.

The appellant's claim

1. The appellant was born on 15 March 1949 and is a legal practitioner.  On 12 April 1996 he was a passenger in the front seat of a car travelling in a southerly direction down Railway Parade in Bayswater heading towards Mount Lawley.  As the Toyota vehicle in which he was travelling commenced a right hand turn into Grand Promenade, a car driven by the respondent, Mary Caterina Burke, came through the intersection and collided with the Toyota on the left hand side at about the point where the appellant was sitting.

2. The appellant testified later that he was thrown forward.  He hit his head on the roof of the Toyota.  The momentum caused the seat belt to crush against his sternum and ribs with the result that he suffered extreme pain in that area.

3. It seems that the appellant's general practitioner, Dr Buttsworth, came to see him at his house two days later and arrangements were made for various tests to be performed including CAT scans and X‑rays.

4. Dr Buttsworth prepared a report dated 22 May 1996 which described the accident and continued as follows:

   "He was wearing a safety harness.  The vertex of his head hit the roof of the vehicle and he experienced 'stars' across his head for five minutes.  He also experienced pain across the (R) chest from the safety harness and he also experienced pain in the scapula region.  He felt pain across his knees from impact across the dash‑board.

On examination there was no haematoma over vertex of his head.

He was tender over (R) 5,6 and 7 intercostal spaces adjacent to his sternum.

He was tender in 5,6 and 7 ribs adjacent to his interscapular region.

His knees were slightly tender over the patellae.

Investigation included CT of head, X‑ray of chest lateral to (R) sternum, and X‑ray of interscapular region.

The X‑rays and CT were reviewed on the 30th April 1996 and no significant injury was reported."

1. In due course the appellant commenced legal proceedings.  The appellant asserted in his statement of claim dated 27 May 1999 that he had suffered the following injuries, namely, injury to his head, including psychological impairment; injury to his chest including ribs, heart and lungs; injury to back including spine; injury to both knees.  It is apparent from the particulars of treatment set out in the statement of claim that in addition to Dr Buttsworth the appellant attended upon a wide range of medical practitioners and specialists.

2. The respondent by her statement of defence admitted liability and negligence but denied that the appellant was entitled to the relief claimed or to any relief.

3. The action was brought on for hearing before Judge O'Brien at the District Court on 17 and 19 July 2000 and again from 20 to 22 November 2001.  Judgment in the matter was delivered on 14 December 2001 on which occasion the appellant was awarded damages in the total amount of $150,243 comprising non‑pecuniary loss $23,300, loss of past earnings $125,943 and past medication $1,000.

4. By his notice of appeal (amended pursuant to the order of Acting Master Chapman on Thursday, 19 December 2002) the appellant seeks to set aside the award.  More particularly, the notice of appeal seeks orders that in lieu of certain findings made by her Honour Judge O'Brien there be substituted findings that the appellant's psychological condition and cognitive deficits and the injuries to his knees and chest were accident caused and that the appellant gave credible testimony.  An order is sought that damages be reassessed accordingly.

5. Before turning to the grounds of appeal it will be useful to review the findings of her Honour Judge O'Brien and some of the principal evidentiary issues.

The judgment below

1. Her Honour Judge O'Brien commenced by describing the accident and the initial examination of the appellant on 14 April 1996 by Dr Buttsworth.  She referred to the report of Dr Buttsworth and his observation that there was no bruising to the vertex of the head and no significant injury was reported.  Her Honour went on to summarise the evidence given by the appellant concerning the pain and discomfort he experienced in the years following the accident, and the nature of the treatment he received.

2. The learned trial Judge noted that the appellant graduated from the University of Melbourne in 1973 with degrees in law and arts.  He was admitted to practise as a lawyer in Victoria in 1976.  He came to Perth in March 1982 and in following years obtained various forms of employment in the law including work in Mr Black's law firm.  He received treatment for alcoholism from Dr Buttsworth and also from Professor German.  He was suspended from legal practice in 1991 for a period of nine months and when he applied to have his practising certificate renewed in or about 1993 the application was refused.  On 12 June 1995, he regained his practising certificate and practised on his own account until his accident in 1996.

3. The judgment reveals that Mr Black gave evidence as to the appellant's ability as a legal practitioner before and after the accident.  This and related evidence suggested that after the accident there was a decline in the appellant's capacity to perform legal work.  Professor German said that the appellant's cognitive health was intact when he regained his practice certificate in 1995 but he was not the same after the accident.  Her Honour noted that the appellant's case rested substantially on the opinions of Professor German who had been treating the appellant over a period of nine years.

4. In the course of defining the issues, the learned trial Judge noted that the appellant claimed damages for injury to his head, knees, chest and his back.  Further, he claimed that the accident caused cognitive impairment which has resulted in him being unable to work as a solicitor and which will permanently incapacitate him from so doing.  The cognitive impairment is said to have been largely caused by brain damage sustained in the accident in the form of concussion which in turn resulted in a post‑concussive syndrome.  Other contributors to cognitive impairment are said to be chronic obstructive pulmonary disease (asthma) and sleep apnoea.  These conditions are also claimed to have resulted from the accident.

5. Having reviewed various medical opinions bearing upon these matters, her Honour asserted at par 67 of her judgment that the bulk of the medical evidence supported a finding that the appellant did not suffer brain injury (concussion) in the accident.  The basis of this opinion related essentially to the appellant's account of the physical impact, the findings of Dr Buttsworth on examination shortly after the accident and the results of the X‑rays and CAT scan taken within a month of the accident.  She noted that Professor German did not examine the appellant until nearly a year after the accident.  He was of the view that the appellant's depression and post‑concussive syndrome had resolved by September 1997.  Her Honour ruled out accident‑related brain injury as a cause of the appellant's mental symptoms.

6. The learned trial Judge reviewed a number of other matters and opinions bearing upon the cause of the appellant's alleged physical problems including cognitive impairment.  There was evidence pointing to a degree of malingering on the part of the appellant.  Her Honour was of the view that the appellant had understated his alcohol consumption.  She considered that the appellant had exaggerated at least some of his symptoms and had sought to overplay the significance of the accident on his physical and mental wellbeing.  She noted that the appellant had a pre‑existing history of depression, anxiety, cycolothymia, manic depression and alcoholism.

7. She referred also to certain surveillance video tape evidence suggesting that the appellant was more mobile than his evidence suggested.  Her Honour then went on to hold at par 93 that, in view of the doubts she had as to the appellant's credibility, coupled more particularly with the surveillance video tape evidence, she found that the appellant had exaggerated his knee symptoms.

8. The learned trial Judge said this at par 99 of her judgment:

   "Doing the best that I can with the evidence, I find that the plaintiff should be awarded general damages for pain and suffering caused by injuries to his knees and his chest and for his depression.  I find that the plaintiff was incapacitated from working as a solicitor because of his accident related depression until March 1998.  The reasons for this date are outlined below.  I am not satisfied on the balance of probabilities that any subsequent cognitive deficits were accident related."

9. It was against the background of these findings that the learned trial Judge proceeded to the assessment of damages.  She considered that the appellant should be awarded general damages for pain and suffering in respect of the alleged injury to his knees but on the basis that the award should be relatively modest as she doubted the appellant's evidence as to the severity of his symptoms.  She was not satisfied on the balance of probabilities that the appellant's back problems were caused or exacerbated by the accident.

10. When she turned to the award in respect of these matters she noted that non‑pecuniary loss was limited by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The maximum amount that may be awarded is $232,000 (prescribed). By s 3C(2) the amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. The maximum amount is to be awarded only in a most extreme case. The Court must therefore compare the case before it with a most extreme case and decide what proportion of $232,000 is to be awarded on that basis.

11. Her Honour was of the view that the appellant suffered from accident related depression until January 1998 when he was certified free of depression.  His chest pain was minor and there was some damage to the appellant's right knee.  Overall, she was of the view that the appellant's non‑pecuniary loss should be assessed at 15 per cent of a most extreme case, that is to say, at $34,800.  The amount of non‑pecuniary loss being greater than amount B ($11,500) but not more than amount C ($35,000), must be assessed at the excess of the amount over amount C.  Accordingly, the award for non‑pecuniary loss was to be fixed at $23,300.

12. She then proceeded to assess the loss of earnings upon the basis that the appellant was incapacitated until the end of March 1998.  She also reviewed the appellant's claim for special damages.  As I noted in earlier discussion, she held that the appellant was entitled to $125,943 in respect of loss of past earnings and $1,000 in respect of past medication.

13. The challenge to the findings made by her Honour and the consequential challenge to the assessment of damages must be considered having regard to the role of an appeal court.

Legal principles

1. In Villasevil v Pickering (2001) 24 WAR 167 Anderson J noted that the received doctrine prior to the enactment of 3A to 3D of the Motor Vehicle (Third Party Insurance) Act was that the judgment for damages for personal injury is a global award, not a series of awards under particular heads.  Appeals were treated as appeals against the total sum awarded (more accurately the discretionary judgment reflected in that sum), the question being whether the judgment for that total sum was or was not within the limits of a sound exercise of discretion.  However, underlying the provisions of 3A to 3D introduced into the Act in 1994 appears to be a legislative assumption that awards of damages in personal injury cases are not global awards, but are indeed a series of distinct assessments.

2. A number of decided cases in the High Court have indicated that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against that finding of fact.  If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.  A case must be exceptional to justify an appellate court overturning a credibility based assessment of a trial Judge: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Rosenberg v Percival (2001) 205 CLR 434.

3. However, in Warren v Coombes (1979) 142 CLR 531 Gibbs ACJ, Jacobs and Murphy JJ said that in general on an appeal by way of rehearing an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge.

4. In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 the Full Court in this State said at 362 that an appellate court is entitled to reach a conclusion that the court below has not taken proper advantage of having seen and heard the witnesses. Further, where there was a glaring improbability about the relevant evidence when it is looked at in the context of other objective facts, the appellate court is entitled to set aside a finding based on credibility.

5. I digress briefly to observe that at the hearing of the appeal the appellant sought to adduce further evidence being the report of an endocrinologist, Dr S K Gan, dated 20 August 2002 to the effect that since the trial the appellant has recently been diagnosed with type 2 diabetes in the setting of obesity and recent depression.  The admission of this report was opposed by the respondent upon the basis that it purported to raise an entirely new issue and the respondent had not had a sufficient opportunity to consider or deal with the matter.

6. I am of the view that the respondent's objection to the Gan report should be upheld for the reasons given by the respondent, and that the report in question should not form part of the materials before the Full Court.

The issues on appeal

1. It is apparent from the appellant's notice of appeal that the appellant contends for substituted findings to be made by the appellate Court that the appellant's psychological condition and cognitive deficits and the injuries to his knees and chest were accident caused.  Further, the appellant submits that when the evidence is looked at as a whole it will show that he gave credible testimony.  He seeks an order that damages be reassessed having regard to the substituted findings that he says should be made.

2. A central feature of the appellant's case on appeal was his contention that prior to the accident he had honestly and openly confronted his alcohol problem.  According to the appellant, the evidence showed that he had returned to legal practice as a self‑employed solicitor and was in good health at the time of the accident, and thus his efficient working capacity at that time should be kept steadily in mind as the appropriate benchmark against which the adverse impact of the negligent act complained of should be assessed.

3. Before turning to the individual grounds of appeal, it will be useful to make some general observations bearing upon the main thrust of the appellant's case.  This will assist the resolution of specific issues raised by the various grounds of appeal.

4. It emerges from my review of the relevant legal principles that an appellate court must give weight to the findings of the trial Judge in a case in which the credibility of the principal witnesses bears upon the findings made, unless it appears that the court below has not taken proper advantage of having seen and heard the witnesses or the findings are clearly improbable.

5. In the present case the learned trial Judge was obliged to give close consideration to the credibility of the appellant himself.  His evidence had to be considered against the background of a wide range of expert evidence adduced by both sides.  The reasons for decision of the learned trial Judge certainly suggest that she isolated the crucial issues and undertook a comprehensive review of the evidence brought before her in the course of the trial.  The appellant conceded at the hearing of the appeal that no application was made on his behalf to recall him or to re‑open the appellant's case in order to rebut certain evidence weighing against his case, especially the evidence of Dr Mustac and Martin Jackson.  He cannot identify any particular instance in which the learned trial Judge simply overlooked or ignored important evidence.

1. To my mind, as I look at the position in overview, having regard to the relevant legal principles, the learned trial Judge's decision can be characterised as a sound and sufficient judgment in which the principal findings, including her findings as to credibility, were open to her on the evidence and appear to be supported by the weight of the evidence.  Her Honour properly identified the issues to be tried in that she gave attention to the appellant's condition prior to the accident and focused upon the extent to which the injuries specifically complained of and related consequences could be said to be causally related to the accident.  She concluded that the appellant did not suffer a brain injury (concussion) and supported that conclusion by reference to various facts and matters including the report of Dr Buttsworth of May 1996 which was the first of many reports to be brought into existence.

2. Her Honour was entitled to give particular weight to the view expressed in the Buttsworth report that the appellant had not suffered a head injury of the kind contended for.  Her Honour properly took into account the inconsistent accounts of injury and illness provided by the appellant to various medical and health practitioners.  She clearly and precisely addressed each issue raised by the appellant and gave appropriate weight to facts and matters bearing upon his credibility such as his pre‑accident battle with alcoholism and the post‑accident surveillance video tapes.

3. When the matter is viewed in this light, it becomes apparent that in the circumstances of the present case an appellate Court must approach with caution the notion of setting aside or varying the findings made below.  Further, it appears from earlier discussion that her Honour translated the factual findings into an award of damages within certain categories in a manner that is consistent with the relevant principles concerning an assessment of damages.

4. Let me now turn to the specific grounds of appeal.

Ground 1A

1. The appellant contends that the findings of the learned trial Judge concerning the extent and duration of the appellant's incapacity to work as a solicitor or at all as a result of the accident and concerning the extent and duration of his general injuries arising from the accident were wrong in fact and in law and against the evidence.

2. The appellant refers specifically to an alleged failure to consider at all or give due weight to the evidence of Mr Black, Mr Donnelly (a client to whom the appellant had provided legal services prior to the accident) and Professor German.  It is said that the learned trial Judge also failed to give any or due weight to the continuum of post‑accident medical and other evidence linking the appellant's inability to function as a solicitor to the accident.  A number of other matters are also referred to in relation to this ground of appeal.

3. I consider that the various matters raised under this ground of appeal do not disclose any error of fact or law.  This, in effect, is a plea by the appellant to have the appellate Court choose evidence supportive of the appellant's claim for damages over the evidence the learned trial Judge properly concluded she had to accept as determinative of the issues raised.  It follows from my general observations that I am not persuaded that the appeal should be upheld on this ground.

Ground 1B

1. The appellant asserts that the learned trial Judge erred in conducting the case with undue haste which resulted in truncation of the time available for the conduct of the appellant's case and insufficient time for the appellant to re‑enter the witness box and rebut the evidence of several defendant witnesses namely, Dr Mustac, who had examined the appellant on two occasions after the appellant gave evidence, and Martin Jackson, who had examined the appellant for the appellant's income protection insurer.  Reference is made to the Jackson report having been admitted into evidence when the author of the report was not personally available to be tested on his evidence.

2. The appellant contends further under this ground of appeal that the learned trial Judge allowed insufficient time for the consideration of the great weight of medical and other evidence before the Court and did not have or appeared not to have sufficient expertise to comprehend the complexity of the medical evidence presented to the Court by the appellant's medical witnesses, and particularly Professor German.  It is said that the learned trial Judge did not properly exercise her responsibilities in controlling the conduct of defence counsel and this resulted in a perception of bias on the part of the learned trial Judge.

3. The evidentiary materials before the Full Court do not support the various contentions advanced under this ground of appeal.  It is apparent from the relevant materials that the learned trial Judge conducted the trial impartially and according to the usual procedures.  She was not required to be an expert in respect of the matters in issue.  Our system of jurisprudence does not, generally speaking, remit the determination of disputes to experts.  The opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.  In the light of the evidence, it is then for the Judge or jury, as the case may be, to make the necessary findings: Clark v Ryan (1960) 103 CLR 486 at 491; Schultz v The Queen [1982] WAR 171.

4. I note also that the appellant was represented by counsel and a solicitor, neither of whom made complaints of the kind now being advanced concerning the conduct of the learned trial Judge or of opposing counsel.

5. It follows from my general observations, and these further observations, that the appeal should not be allowed on this ground.

Further grounds of appeal

1. The appellant contends under ground 1 of the appeal that the finding of the learned trial Judge that the appellant's psychological condition and in particular the compromise to the appellant's executive brain function was not caused or exacerbated by the accident caused injuries was wrong in fact and in law and against the evidence and the weight of the evidence.

2. As to this ground of appeal, the appellant makes specific reference to an alleged failure to take account of Dr Gubbay's evidence that the appellant's condition was the result of psychological trauma and pain arising from the accident; an alleged failure to take account of Professor Hollingsworth's evidence that the appellant's condition was 50 per cent due to pre‑existing frontotemporal system damage and 50 per cent due to accident caused trauma; an alleged failure to take account of the evidence of Professor German, Dr Hayward and Ms Coxham that the accident led to a post‑traumatic stress disorder contributing to the appellant's psychological condition.

3. By ground 2 of appeal the appellant contends that the learned trial Judge erred in fact and in law in finding that the appellant was a witness of doubtful credibility and that he exaggerated at least some of his symptoms and sought to overplay the significance of the accident on his physical and mental wellbeing, such findings being against the evidence and the weight of the evidence.

4. The appellant contends under ground 3 of the appeal that the learned trial Judge erred in law in finding that the appellant suffered from manic depressive illness when there was no evidence to support that finding.

5. The appellant asserts under ground 4 of the appeal that the learned trial Judge should have found that the appellant suffered a psychological condition involving a compromise of his executive brain function caused or exacerbated by the accident which prevented him working as a solicitor or in any other employment.  Further, she should have found that he suffered and continues to suffer disabling knee pain as a result of the accident and also chest problems.

6. By ground 5 of the appeal the appellant contends that the learned trial Judge erred in her assessment of damages in that general damages should have been assessed on the basis that the appellant suffered and will continue to suffer a loss of cognitive function as a result of the accident which caused and causes loss of amenity, and that he also suffered knee injuries which required surgical treatment and that he suffered chest injuries which have required and continue to require treatment and to cause him pain.

7. It is said further that after deciding that the appellant suffered chest injuries the learned trial Judge neglected to calculate and award appropriate damages.  Reference is then made to various categories of claims.  It is said the award is too low and below the range of sound discretionary judgment.

8. It is immediately apparent that a common refrain underlies these further grounds of appeal, namely, that various findings of fact contended for by the appellant should be substituted for findings made by the learned trial Judge in that she failed to give sufficient weight to the testimony of the appellant and the evidence of his witnesses.    The appellant asserts, in particular, in various ways, that there was a failure to find that the appellant suffered and will continue to suffer a loss of cognitive function as a result of the accident.

9. It follows from my earlier observations that in a case of this kind where the findings below depend to a substantial degree on the credibility of the appellant as the principal witness on his side, the findings must stand unless the trial Judge has misused her advantage of observing the appellant and his witnesses or has acted on evidence which is glaringly improbable.  Error has not been demonstrated in the present case.  Indeed, on the contrary, the learned trial Judge's full review of the evidence and definition of the relevant issues shows that she gave proper attention to the various evidentiary issues raised by the pleadings.  It must be kept steadily in mind that the learned trial Judge was confronted with a wide range of conflicting expert evidence, and thus it should not be too readily assumed that she was obliged to follow the line contended for by the appellant's experts.  Further, the tenor of the expert opinions on the whole is that the absence of clear evidence of concussion at the time of the accident weighs against the permanent cognitive deficit of the kind contended for by the appellant.

10. As to ground 5, I have some difficulty in grasping the appellant's contention that the learned trial Judge failed to make an appropriate allowance in respect of chest injuries.  In the course of formulating an award of damages in respect to non‑pecuniary loss her Honour referred explicitly to "knee and chest pain and depression".  She held that the appellant's "chest pain was minor", and, in doing so, clearly took account of the view reflected in the Buttsworth report prepared in the immediate aftermath of the accident that there was no more than tenderness in that portion of the appellant's anatomy.  The reasoning in Villasevil (supra) shows that the manner in which her Honour dealt with this head of claim was appropriate.  I consider that she properly assessed damages on the basis of the evidence presented to her by the parties.

Summary

1. In my view, principally for the reasons reflected in my general observations, I am not satisfied that the appellant has made out any of the grounds of appeal or that the findings below should be reversed or varied.  I consider that the appeal should be dismissed.