Public Transport Corporation v Arambatzis
[1998] VSCA 41
•27 August 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 5921 of 97
PUBLIC TRANSPORT CORPORATION
Appellant
v
ARAMBATZIS
Respondent
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JUDGES: TADGELL, ORMISTON and CALLAWAY, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 26 August 1998 DATE OF JUDGMENT: 27 August 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 41
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TORT - Negligence - Metal ramp falling on plaintiff while waiting at railway station -
Damages - Continuing pain and suffering - Award of $35,000 not "plainly wrong".
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APPEARANCES: Counsel Solicitors For the Appellant Mr I.H. Munro Corrs Chambers Westgarth For the Respondent Mr G.J. Sala Pascalis Zaparas
TADGELL, J.A.:
I invite Ormiston, J.A. to deliver the first judgment.
ORMISTON, J.A.:
This is an appeal brought from a judgment of the County Court in an action brought by the respondent for damages for personal injuries allegedly suffered whilst waiting for a train at Coburg railway station on 15 March 1993. It was alleged that these injuries were caused as a result of negligence of the appellant, the Public Transport Corporation, which was the owner and occupier of that station. The respondent was a person who at the time was a 19-year-old student and on her way home from the Bundoora Campus of RMIT. On 6 June 1997 the learned County Court judge found in favour of the respondent, making an award of damages in her favour in the sum of $35,915 and further ordered the appellant to pay interest on $20,915 of that sum, and to pay costs.
The respondent alleged that the appellant had been negligent in placing a wheel-chair ramp against a wall. She asserted that this ramp fell on her and injured her and that she had been suffering from those injuries ever since. The appellant admitted she had been struck by the ramp while waiting for the train but denied it had been negligent and had caused the injuries she suffered.
The learned trial judge found that the inference was clearly open that the ramp was negligently placed by some servant or agent of the appellant in such a position that it would fall on to the platform without further human interference and that it must have been contemplated by the appellant that if the ramp were to fall someone might be injured. Thus, the learned judge found that she had been injured by the negligence of the Public Transport Corporation and, although that finding of negligence was the subject of a number of grounds of appeal, those grounds are now abandoned together with a number of other ancillary grounds relating to the question of damages.
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The facts relating to the respondent's condition need not for present purposes be set out in any great detail. She has over the last four years suffered pain resulting from essentially an injury to her shoulder, there have been limitations in what she can do and that pain continues.
The simplest way of dealing with the matter is to state the learned judge's findings because, as I would understand it, the appellant through its counsel does not challenge those findings, except to say that the damages assessed by him were manifestly excessive. Therefore, I will state what the judge said as follows:
"As to injuries, in general I accept the evidence of the plaintiff with the proviso that I think in terms of severity and frequency of pain it was a little exaggerated. I think her complaint of past pain and suffering is largely true. I think the plaintiff still has trouble with aches and pains about the shoulder and is somewhat limited in what she can do with her right arm. She cannot use it in the extremities of movement without pain and cannot perform tasks with that arm without eventual discomfort, which tasks require heavy and constant use of the right arm. I do not, however, accept that the pain is constant and unremitting, but it is a nuisance and becomes worse in cold weather. The plaintiff also gets headaches which I think are ascribable to the accident. The plaintiff has not had a great deal of medical treatment but has attended a chiropractor 23 times at her own expense. She did not persist with swimming and has not been referred by her medical practitioner to a physiotherapist. I think there is some sense in Dr Marshall's view that she probably needs some course of exercise and in that regard I find that she has not done all she should have done to minimize her condition and that must have some effect on the amount of damages she receives. It is clear that no bony damage was involved and in the state of evidence which exists I am unable to find positively that there was any disc injury involved, though of course that might well have occurred. I find that the injury was a soft tissue injury. Due to persistence I accept the proposition of Dr Rowe that in healing there must have been a formation of scar tissue which now causes pain and discomfort and will continue to do so."
It is said that perhaps was not the proposition of Dr Rowe, but it was not suggested that it was not said in evidence by one of the doctors.
The only issue raised on appeal was the quantum of the damages awarded in favour of the respondent. It was conceded $915 was the only amount awarded for special damages and so the award for past pain and suffering and other loss of amenities must therefore be treated as $20,000 and in respect of future pain and
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suffering it must be treated as $15,000. Essentially it was said that the award of the learned judge was manifestly excessive or so excessive that no reasonable court could have made it. Various incidental findings relating to the appellant's injuries were also challenged. They were abandoned in so far as the grounds of appeal related to them, but a number of matters were relied upon in argument.
On the principal question the difficulty facing the appellant, as counsel fairly recognized, is that appellate courts will only review awards of this kind on a limited basis, assuming that no error of principle is apparent. As it was recently expressed by the President in CSR Readymix Australia Pty. Ltd. v. Payne (C.A. 23 May 1997 unreported) at p.4:
"Where it is alleged on appeal that a judge's assessment of damages is manifestly excessive, an appellate court, before it interferes, should be satisfied that the judge has acted on a wrong principle, or has misapprehended the facts or, for those or other reasons, can be seen to have made a wholly erroneous estimate of the damages suffered."
The matter was also examined by a Full Bench of this Court in Mobilio v. Balliotis (C.A. 10 November 1997 unreported) where Brooking, J.A., in analysing a not dissimilar question, had cause to analyse a large number of authorities on appellate review of awards of damages, concluding that those authorities, at least in so far as damages for pain and suffering and loss of amenities of life are concerned, require an appellate court to be satisfied that the judge has made a "wholly erroneous estimate" before allowing an appeal, unless there be some other error of principle or of fact: see at pp.7 to 12 of his judgment. Although Phillips, J.A. and I differed as to the use of the word "discretionary" in that judgment in this context, no member of the Court who dealt with the issue differed, the test therefore to be satisfied is whether the award is "wholly erroneous" or, as the President and I preferred, "plainly wrong", but the difference is of no consequence.
Here it is not necessary to examine the extent to which the test applies to economic loss component of any award of damages for, as I have said, it is conceded that $35,000 was awarded in respect of non-economic loss.
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Let me say at once I am not persuaded that the judge's decision on this issue was "plainly wrong" or that the figure reached by him was an "entirely erroneous estimate". It may not be precisely what I may have awarded; I may have seen a lesser sum as appropriate, I may not have. I did not see the witnesses or hear their evidence. In particular I did not have the benefit of observing the respondent in the witness box. As has been said so often, damages for pain and suffering and the like involve matters of opinion, impression, speculation and estimation such that I would not be satisfied that the learned judge here was in error.
Much reliance was placed by the appellant on the judge's conclusion that the respondent's account was "exaggerated". But what the judge found was that "in general" he accepted her evidence, although "in terms of severity and frequency of pain it was a little exaggerated" (my emphasis). It is just that kind of qualification which makes it so difficult for an appellate court to be confident that a judge's estimate of loss is "plainly wrong". He clearly saw it as not minor in consequence, largely because her suffering had continued in one form or another for four years and was not immediately expected to cease, unless one accepted Mr Marshall's opinion. But, despite valiant argument why a different view as to future loss should be now preferred, that is not what the judge was obliged to do. He was entitled to weigh up the whole of the evidence and conclude that the respondent's condition could and would continue at least some time into the future, thus justifying the substantial sum he included for future pain and suffering. These are matters hard to estimate, but the judge was dealing with a 22-year-old woman, injured when 19, and who had unnecessarily had to put up with a variety of aches and pains, and worse, while she was still young and who would, as best the judge could estimate, have had to put up with similar pain and suffering for a number of years into the future, again at a time when she might otherwise have expected to enjoy complete health and physical fitness. These, as I say, are matters of impression and estimation and I am not prepared to say the judge was wrong or wholly erroneous in his award.
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There were a number of specific matters which counsel referred to. It is sufficient to say that none of them has persuaded me that the judge was plainly wrong. In fact every one of them was taken into account and the experienced judge clearly reached a conclusion which he thought was consistent with those findings. I am not prepared to differ.
I would dismiss this appeal.
TADGELL, J.A.:
I had an impression upon first looking at the evidence in this case that the award of $35,000 for general damages for pain and suffering was generous. Having heard Mr Munro for the appellant I retain that impression. That, however, is not enough to entitle us to overturn the learned judge's assessment. I agree in general with the reasons cited by Ormiston, J.A. for dismissing this appeal.
CALLAWAY, J.A.:
Like the learned presiding judge, I think that this was a generous award but, measured against his Honour's findings of fact, of which no complaint is made, I cannot say that it was a wholly erroneous estimate or plainly wrong. I, too, would dismiss the appeal.
TADGELL, J.A.:
The judgment of the court is appeal dismissed with costs.
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