Puntureri v IAROSSA - [2005] SASC 139

Supreme Court of South Australia
(Magistrates Appeals: Civil)
PUNTURERI v IAROSSA
Judgment of The Honourable Chief Justice Doyle (ex tempore)
11 April 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
An appeal against the decision of a Magistrate dismissing the plaintiff's claim for damages for personal injury resulting from an alleged motor vehicle collision - the Magistrate dismissed the claim on the basis of the evidence about the degree of impact, the lack of credibility of the plaintiff and on expert evidence about the type of movement that would cause the injury sustained - on appeal - whether Magistrate erred in findings on credibility - whether Magistrate gave undue weight to some evidence - slightness of impact and delay in seeking medical attention as they relate to causation - appeal dismissed.

PUNTURERI v IAROSSA
[2005] SASC 139
Magistrates Appeals: Civil

DOYLE CJ (ex tempore): I have had the benefit of reading written submissions before the hearing of the appeal and the benefit also of considering the Magistrate’s reasons for decision. I have also had an opportunity to consider the evidence before the Magistrate and the exhibits before him. Having had the chance to consider that material in advance, and to consider the submissions today, I now propose to give my decision.
Mr Puntureri, who was the plaintiff in these proceedings, sued the defendant for damages for personal injury, claiming that the injury was caused by the defendant’s negligent driving. The defendant allegedly drove her motor car into the rear of Mr Puntureri’s motor car in which he was sitting at the time.
The Magistrate who heard the case dismissed the claim. The Magistrate found that the impact, which was not denied, was a very slight one and could not have caused the injury of which Mr Puntureri complained. The Magistrate did not accept Mr Puntureri as a witness of truth.
I mention here that Mr Puntureri conducted his own case before the Magistrate. Mr Puntureri appeals against the dismissal of his claim.
The accident or impact happened on 18 September 1998. Mr Puntureri was sitting in his car which was parked at the side of the road. I gather that the engine was off. Mr Puntureri’s sister was sitting in the back seat. Mr Puntureri described the incident in his evidence-in-chief as follows. At p 2 he said, having given some preliminaries, that he was talking to his sister and:
… then suddenly this car behind, that wasn’t a bang just a push. I didn’t notice so much but my sister, when there was the push my sister scream on me and she said “What did you do”. I said “I don’t do nothing”. I hear the scream. I was just relax. I turned around that fast to see what my sister was she scream. While we were talking in the car, she was sitting in the back.
And he went on to say that he then saw a woman, apparently the driver of the car at the rear, walk past his car and he spoke to her in connection with the impact.
Mr Puntureri’s car was not damaged. He explained this saying that he had what the Magistrate called a bull bar on the back of his car, but the impression I get is that that is a reference to a tow bar, a tow bar of the kind that projects from the rear of Mr Puntureri’s car.
Mr Puntureri also said at pages 4 to 5 of his evidence that next morning he felt pain in his neck and he had had neck trouble ever since. He said he consulted his doctor because of the neck pain about a week later. That is a matter that assumed some significance at trial.
The effect of the medical evidence given by three different doctors was that assuming the incident occurred as described by Mr Puntureri, the symptoms of which he complained must be attributable to a musculo-ligamentous strain of the cervical spine, or soft tissue damage to his neck. What I mean by that is they said that if his car was jolted by an impact from behind, then the type of symptoms of which he was complaining could be attributable to that kind of neck injury which in turn could be attributable to the force of the impact. There were no objective signs of any injury, but that is not unusual in the case of an injury of this kind.
The diagnosis by the doctors depended on their acceptance, or I might say their acceptance of the substance of Mr Puntureri’s account of the incident and of the symptoms and their onset.
The Magistrate summarised the defendant’s evidence as to the occurrence of the incident at [20] as follows:
Her evidence was that on parking her car she left it and she was unaware that her car had touched the other car. She was surprised when she was called back by the plaintiff. She said that she apologised to him at the time and said that she didn’t hear or feel anything when the collision took place. She agreed that there was no exchange of particulars at the time.
So the effect of her evidence was that the impact was so minor that it had not been noticed by her at all. There was no suggestion in the evidence that her vehicle was a much heavier vehicle, or that anything about the nature of her vehicle would cause her to be unaware of an impact between the two vehicles.
As I said, the Magistrate did not accept Mr Puntureri’s evidence. He accepted the defendant as a witness of truth. He found that the impact was so minor that it could not have caused the injury which the doctors suggested could explain Mr Puntureri’s symptoms. The Magistrate relied on a number of matters.
First, the defendant tendered the front number plate from her car. It bore a trifling dent on it. The Magistrate considered that if the incident had occurred as claimed by Mr Puntureri there would have been more damage to the number plate than that, and by inference that there would have been damage to the motor car.
Second, in contrast to Mr Puntureri’s claim that he consulted his general practitioner within a week, Dr Munro’s evidence was that he was first consulted 32 days after the accident. On that occasion Mr Puntureri was complaining of neck pain that he attributed to the impact. The evidence indicated that Mr Puntureri also consulted a chiropractor a good deal later than he claimed.
A third matter relied on by the Magistrate was that the evidence of the doctors who were called supported, without compelling, a conclusion that if the incident occurred as described by the defendant it was unlikely to have caused an injury that could explain Mr Puntureri’s symptoms.
My understanding of the effect of the evidence of each of the three doctors who were called is that the doctors agreed that an impact so minor as to be unnoticed by the defendant, and as to cause nothing other than a trifling dent in the number plate, would be unlikely to cause an injury of a kind that would explain the symptoms of which Mr Puntureri complained.
I mention that on Mr Puntureri’s case his injury could have been attributable to the impact or to Mr Puntureri suddenly turning his head to see why his sister had screamed out at the moment of impact. During the course of the case before the Magistrate this suggestion was advanced as a possible cause of the injury. The effect of the medical evidence was that such a movement was quite unlikely to be the cause of Mr Puntureri’s symptoms. The Magistrate was entitled to put that aside as a possible cause.
Fourth, the Magistrate took an adverse view of Mr Puntureri’s assertion that his general practitioner was wrong in maintaining that he had not been consulted until 20 October, and also of Mr Puntureri maintaining that doctors had wrongly recorded his description of the accident.
The fifth matter relied on by the Magistrate, which is implicit in his reasons, is that the Magistrate accepted the defendant as a truthful witness in relation to the force of impact or, more appropriately, the lack of force.
I must make my own assessment of the evidence, making due allowance for the advantage that the Magistrate had in having Mr Puntureri and the defendant give their evidence.
Mr Kerin, counsel for Mr Puntureri on appeal, submits that it is often the case that a doctor’s diagnosis of the cause of symptoms depends on the truth of the patient’s account of the relevant incident. I agree. But there is no indication that the Magistrate made inappropriate use of this feature of the case.
Mr Kerin submits that the Magistrate gave undue weight to the difference between Mr Puntureri’s evidence about when he consulted his general practitioner and the doctor’s evidence. However commonsense suggests that if Mr Puntureri did not experience pain that caused him to consult his general practitioner until about 32 days after the accident, the link between the accident and the complaint of neck pain must be doubted. In saying that I do not suggest that the Magistrate made a finding that the onset of neck pain was only shortly before the consultation. Perhaps it is better expressed by saying that the longer the gap between the incident and the onset of pain, the less likely one would be to attribute the onset of pain to the incident. And as I said, Mr Puntureri in his evidence asserted that he had seen the doctor because of neck pain within seven days of the accident.
However in fairness to Mr Puntureri it must be remembered that according to the general practitioner Dr Munro, he told Dr Munro that neck pain had troubled him since the occurrence of the incident. So while this is a matter that the Magistrate was entitled to consider, it is not of great significance in itself in my opinion.
Mr Kerin also challenged the Magistrate’s reliance on the differences between Mr Puntureri’s account of the incident and what he had told Dr Osti, an orthopaedic surgeon. They spoke to one another in Italian, lessening the likelihood of any misunderstanding, although Dr Osti said that Mr Puntureri used a dialect.
I consider that the Magistrate was entitled to be confident that any difference between what Mr Puntureri said in evidence and what he told Dr Osti was not attributable to a misunderstanding. The fact is that Dr Osti had recorded that Mr Puntureri had referred to significant damage to the defendant’s vehicle. While not suggesting they were necessarily the precise words used by Mr Puntureri, there was a basis for the Magistrate to find that Mr Puntureri had told the doctor that there was something noticeable or of significance by way of damage to the defendant’s vehicle, whereas clearly on the evidence that the Magistrate accepted that was not so.
Mr Kerin also challenges the Magistrate’s reliance on the emotive manner in which Mr Puntureri described aspects of the incident. That is something on which the Magistrate was entitled to rely if he saw fit, although I agree with Mr Kerin that it is not of any particular significance. A matter like that depends very much on the personality of the individual.
Mr Kerin argues that the very link between the incident and the onset of symptoms is supportive of Mr Puntureri’s case, that is, the fact that symptoms began after the incident. But here the issue was, and is, in part whether the symptoms did in fact begin shortly after the incident as claimed. So the matter cannot proceed on the basis that there was only a short gap between the incident and the onset of symptoms. The length of that gap was an issue in the case, and the Magistrate has found by implication that the symptoms did not occur within the first few days after the incident as claimed by Mr Puntureri.
Mr Kerin also complains of the Magistrate’s failure to refer to evidence from the doctors that the injury might have been caused by a minor impact between the two vehicles. I have looked at that evidence, both beforehand and in the course of the argument. I agree with the Magistrate that the tenor of the evidence from the doctors is that a very slight impact of the kind described by the defendant is unlikely to have caused the injury, and that is the problem which Mr Puntureri faces. The incident as described by the defendant would not, according to the doctors, on the balance of probabilities have caused the injury. One could not say it is impossible for this to have happened. But one would not make a finding that it did happen, on the balance of probabilities. If anything the balance of probabilities pointed the other way.
Having considered all these matters, I do not agree that the Magistrate has erred in his approach to the finding of fact that he made about the incident. The matters on which he relied were relevant and could be used as he used them. Nevertheless it is still necessary to review the whole matter, and I now do so.
The very minor damage to the number plate is of some objective significance, and it favours the defendant. So does the delay in Mr Puntureri consulting his general practitioner. Although I do not attribute great weight to this failure, it is a factor. It is also the case that a very minor impact, if the impact was very minor, is unlikely to have been the cause of Mr Puntureri’s symptoms. As I have already said, that was the effect of the evidence from all of the doctors.
I am not satisfied that the Magistrate erred. The manner in which Mr Puntureri and the defendant gave their evidence affected the Magistrate’s conclusion in relation to the evidence of each of them. He was entitled to rely on these matters, although I agree that demeanour was not a matter of great significance.
I also accept Mr Kerin’s submission that the Magistrate’s finding that Mr Puntureri lied, or was not a witness of truth, might not be warranted. But even if one takes that out of the equation one is left with a finding supported by evidence, of a very minor impact which is unlikely to be the cause of the symptoms of which Mr Puntureri complains, a finding supported to some extent by objective evidence and certainly supported by other evidence. So it is not necessary to make a finding that Mr Puntureri was untruthful to conclude that he has not established that the impact was the cause of his injuries.
I agree with Mr Kerin that there was no insurmountable obstacle to the success of Mr Puntureri’s claim, but it does not follow that the Magistrate could not reject his evidence on crucial issues. The claim that his case was supported by medical evidence is correct, but that support rests to a considerable degree on acceptance of Mr Puntureri’s description of the incident. In Mr Puntureri’s favour there were three matters perhaps. The first is that no doctor said that any of his symptoms were not consistent with a musculo-ligamentous strain of the type in question. The second is that no doctor suggested any alternative cause for the complaint of neck pain. And the third factor is that no other incident was identified by anyone which might have caused an injury.
But even making allowance for those matters, and taking out of the equation the finding that Mr Puntureri was untruthful, I am not satisfied that the Magistrate was wrong to find as he did. There was evidence to support his finding that there was a very minor impact, being one that was not capable of causing an injury of the kind which the doctors said would explain the symptoms. That finding was supported by the evidence to which I have referred, and I again refer in brief to the number plate, the time that elapsed before consulting a doctor, and the fact that Mr Puntureri was not a persuasive witness, which I emphasise is not saying that he was untruthful, simply that the Magistrate was not sufficiently satisfied about his evidence to put reliance on it compared with that of the defendant.
For all those reasons I must conclude that no error has been demonstrated by the Magistrate and that the appeal should be dismissed.
The orders of the court are as follows:
1. That the appeal be dismissed.
2. That the appellant pay the respondent’s costs of the appeal.