Richards v Forsyth; Richards v Transport Accident Commission
[2007] VSCA 227
•15 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| JASON RICHARDS v DAVID FORSYTH | No 3823 of 2006 |
| JASON RICHARDS |
| No. 3767 of 2006 |
| v |
| TRANSPORT ACCIDENT COMMISSION |
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JUDGES: | BUCHANAN, NETTLE and NEAVE, JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 September 2007 | |
DATE OF JUDGMENT: | 15 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 227 | |
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Negligence – Motor vehicle accident – Application to lead fresh evidence on appeal refused – Injury to lumbar spine not caused by accident – Finding open on evidence.
Statutory duty – Transport Accident Commission – Claim for damages for breach of duty to pay for special bed – Action struck out.
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| APPEARANCES: | Counsel | Solicitors |
| The Appellant appeared in person | ||
| For the Respondents | Mr D E Curtain QC with Mr B Anderson | Solicitor to Transport Accident Commission |
BUCHANAN JA:
On 25 May 1996 the appellant, then a 24 year old carpenter and joiner, was injured when the motor car he was driving collided with a motor car driven by the first named respondent (‘the respondent’).
The appellant brought two proceedings arising from the accident. The first was an action against the respondents claiming damages in negligence for pain and suffering and loss of earning capacity caused by the appellant’s injuries. The second was an action against the second named respondent (‘the Commission’) for damages for breach of statutory duty. The appellant alleged that the Commission had failed in its duty to buy or supply a specialised bed, which the appellant said he needed as a consequence of the injuries the subject matter of the first proceeding.
In the first action, which was tried before a judge in the County Court, the appellant was awarded damages in an amount of $30,000 for pain and suffering and loss of enjoyment of life and an amount of $40,000 for loss of earning capacity together with interest. As the award of damages for pain and suffering and loss of enjoyment of life fell short of the minimum amount set by s 93(7) of the Transport Accident Act 1986, it was disregarded and judgment was entered for the appellant in an amount of $45,748.72. The respondent was ordered to pay the appellant’s costs up to 15 June 2005 and the appellant to pay the respondent’s costs thereafter.
The appellant contended at trial that, as a consequence of the accident, he sustained a soft tissue injury to his cervical spine and injured his lumbar spine. The respondent conceded that the appellant had sustained an injury to his cervical spine but contended that any injury to his lumbar spine was not attributable to the accident. The trial judge found that the respondent’s contention was correct.
According to the evidence led on behalf of the appellant, he first believed himself to be uninjured, but within 15 minutes became conscious of cervical pain. He attended hospital on 29 May 1996 complaining of a sore neck and muscle spasms. No abnormality was demonstrated by an x-ray. On 1 August 1996 the appellant was examined by an orthopaedic surgeon. He did not tell the surgeon about any lumbar problem.
In his evidence before the County Court judge the appellant said that he did not experience any symptoms of injury to his lumbar spine for some three months after the accident, but then pain in his lumbar spine increased to the point where it reached a ‘huge peak’ about eight months after the accident.
On 28 January 1997 the appellant saw Mr Kevin King, an orthopaedic surgeon. The appellant told Mr King that he suffered a sore neck and muscle spasms as a consequence of the accident. He did not refer to any problems with his lumbar spine. Mr King reported to the appellant’s solicitors that his complaints were confined to his cervical spine and said, ‘Fortunately there is no evidence of injury to his thoracolumbar spine.’
On 12 May 1997 the appellant lodged an application for benefits under the Transport Accident Act1986 (‘the Act’), specifying his injury as being one to his cervical spine.
On 3 June 1997 the appellant saw Mr King again and complained only of pain in his cervical spine. He saw Mr King on 28 November 1997 and complained of an intermittent, nagging ache in his neck. The appellant saw Mr King again in December 1997, but made no reference to any lumbar injury.
In 1998 the appellant made a claim upon the Commission for benefits under the Act. As a result of that application he was referred to Mr Russell Miller, an orthopaedic surgeon. The appellant saw Mr Miller in October 1998 and complained only of injury to his cervical spine. Despite his limited complaints, Mr Miller conducted a thoracolumbar spine examination, which he described as ‘unremarkable’.
The appellant’s solicitors referred him to Professor McDermott, to whom he complained only of cervical injury when he was examined in January 1999.
On 26 February 1999 the appellant saw Mr King, and for the first time complained of problems with his lumbar spine. Mr King noted that the appellant had occasional discomfort in his thoracolumbar spine.
In 1999 the appellant supplied a detailed statement and affidavit in support of his application before the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for benefits under the Act. No reference was made to any lumbar injury. At the hearing before the Tribunal the appellant relied only upon cervical injury.
In December 2001 the appellant was referred to Mr Peter Turner, an orthopaedic surgeon, who diagnosed the appellant as suffering muscular problems in his lumbar spine, but thought that the appellant had no significant injury.
Mr De La Harpe, another orthopaedic surgeon, observed a spasm in the erector muscles of the appellant and thought that there was a level of disc degeneration, which was not attributable to normal wear and tear. The trial judge noted that was the only objective evidence of injury to the appellant’s lumbar spine in all the material before him.
The appellant saw Mr Miller again in August 2002. Mr Miller examined the appellant’s lumbar spine and thought that he was suffering from disc degenerative disease. Mr Miller said that whether the condition which he observed was a consequence of the accident depended upon when the symptoms emerged. If they emerged within some months of the accident, he was prepared to accept that it had made a contribution to the evolution of the back condition, but if not, then he would not be prepared to accept a connection. Mr King saw the appellant more recently and accepted a connection between the accident and the disc degeneration in the appellant’s lumbar spine, but that opinion was based upon the history given to him by the appellant of the emergence of symptoms some two or three months after the accident in 1996.
The trial judge concluded that the appellant did not injure his lumbar spine in the accident which occurred in 1996. He said that the appellant was not conscious of lumbar problems until early 1999 or perhaps late 1998. He said that it was not just a case of no complaint being made, there were incidental examinations conducted of his thoracolumbar spine disclosing no injury. His Honour said, ‘There was no reason to connect degenerative change with the accident … ‘.
The trial judge refused to accept the appellant’s evidence that the cervical injury which he sustained in the accident was ongoing. He said:
In the short term unquestionably he suffered from a problem, but I am not satisfied that it has been long term or at anything like the level of severity that he claims … I conclude that the plaintiff suffered from moderately severe but slowly improving cervical condition over a period of approximately three years.
His Honour expressed reservations about the accuracy of the histories recounted by the appellant to the doctors he attended.
At the outset of the appeal the appellant sought to lead evidence consisting of a number of documents relating to the damage caused to the appellant’s motor car in the accident and a report by a neurosurgeon, who examined the appellant at the request of the appellant’s solicitor, to whom the report was furnished. The appellant had not sought to lead the evidence at trial.
At trial the appellant knew of the existence of the documents and was in possession of at least copies of all the documents. The appellant did not seek to tender the documents relating to damage to his motor car at trial because he claimed that he was surprised by the manner in which the respondent conducted his case. For the purposes of the trial of the issue of liability, the respondent was concerned to establish that the appellant’s motor car was travelling at a high speed. On the issue of quantum, however, the respondent attempted to minimise the appellant’s injuries by contending that the collision occurred at a low speed. Unprepared for this change, the appellant did not lead certain of the evidence available to him of the extent of damage to his motor car which, he said, was extensive. The appellant did not seek to tender the neurosurgeon’s report because he thought the respondent would incorporate it in the bundle of medical reports to which both parties contributed and which was placed before the Court.
In my opinion the application to lead the evidence should be refused. The documents were known and available to the appellant at the trial. The documents did not answer the description of fresh evidence discovered since the conclusion of the proceedings in the Court below.[1] The respondent was under no obligation to include in the bundle of the reports put before the Court a report upon which the appellant did not seek to rely.
[1]Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.
For the foregoing reasons I would refuse the application to lead further evidence.
There are a large number of grounds of appeal, 53 in all. The first group of grounds complain that the trial judge ignored or rejected medical evidence without giving reasons. In my view the history of the appellant’s complaints to doctors and the nature of his treatment stated by his Honour is entirely consistent with and accounts for the evidence lead from medical practitioners. The trial judge spelled out the basis upon which he approached the medical evidence, which made clear his reasons for rejecting parts of that evidence. In general terms the trial judge discounted medical opinions based upon certain of the accounts given to the doctors by the appellant, on the basis that the trial judge did not accept the appellant’s accounts.
The next group of grounds concern the severity of the impact between the motor cars driven by the appellant and the respondent. The appellant contends that the trial judge erred in rejecting the tender of a receipt issued by a towing service which the appellant contended proved that his motor car was too badly damaged to be driven. In my view there was no error: the receipt was hearsay. The trial judge described the accident as ‘a relatively minor collision.’ The appellant contends that his Honour erred in reaching that conclusion and ought to have preferred certain of the evidence to other evidence. I can detect no error in the trial judge’s treatment of the question of the speed of the appellant’s motor car.
Ground 12 alleges that the appellant was taken by surprise when the respondent contended that the accident occurred at a low speed so as to reduce the severity of the impact, when the respondent had pleaded in respect to the issue of contributory negligence that the appellant was driving at an excessive speed. The ground does not identify error on the part of the trial judge. In any event, it does not appear to me that there is any necessary inconsistency in the positions adopted by the respondent, for excessive speed when the respondent first saw the appellant’s motor car could have been reduced to a moderate speed at impact.
The next ground of appeal alleges that the trial judge was bound to accept that the appellant suffered ‘a serious long-term impairment or loss of a body function’ within the meaning of s 93(17) of the Act because that decision had been made by another judge in an earlier decision granting leave to bring the proceeding pursuant to s 93(4)(b) of the Act. In my opinion the first decision did not in any way limit or prescribe the findings in the trial of the damages action. The issues at each stage of the proceeding were discrete.
A number of the grounds complain that the trial judge erred in failing to find that the degeneration of the appellant’s lumbar spine was caused or aggravated by the accident. His Honour’s conclusion was largely based upon the evidence of Mr Miller that a connection between the accident and the injury required symptoms of the injury to emerge within months of the accident and his Honour’s finding that the symptoms of injury to the lumbar spine did not appear until years after the accident. In my view his Honour is not shown to have erred in accepting Mr Miller’s thesis or in making the finding. It appears to me that the appellant’s grounds assume that it was incumbent upon the respondent to prove a cause of the injury to his lumbar spine other than the accident. In fact it was for the appellant to establish that the condition of his lumbar spine was caused by the accident.
Another group of grounds complain of the trial judge’s failing to act upon certain evidence or drawing incorrect inferences from the evidence. In my view none of the grounds have been established. For example, the appellant submitted that the trial judge erred in stating that the appellant was not treated for injury to his lumbar spine at a time when he was swimming as a form of treatment. In my view his Honour was referring to treatment by medical practitioners in the context of a failure by the appellant to seek treatment of that kind.
The appellant complained that the trial judge exerted pressure on him not to call medical practitioners as witnesses. In my view the transcript of the trial does not bear out this complaint.
Under the headings ‘Litigant in Person’ and ‘General’, the grounds of appeal in general terms accuse the trial judge and counsel for the respondent of conspiring to unjustly attack the appellant’s character and mental state, the trial judge of bias and conducting an unfair trial, counsel for the respondent of deception and the respondent of concealing evidence. The transcript simply does not suggest, let alone disclose, any such wrong doing.
Another ground complains that the revised reasons for judgment were different from those which the appellant says that he heard on the day judgment was pronounced. The appellant has not given any particulars of the changes. There is no rule or principle which precludes a judge later revising reasons for decision pronounced orally. It is often done.
A ground of appeal complains that the trial judge erred in accepting a report made by an employee of the Williamstown Hospital. In his evidence the appellant disputed parts of the report. It does not appear to me that his Honour erred in accepting one version rather than another. He was not bound to accept the appellant’s account.
Finally, the grounds of appeal attack the quantum of damages awarded by the trial judge.
The trial judge based the assessment of damages for pain and suffering and loss and enjoyment of life on a finding that the appellant ‘suffered from a moderately severe but slowing improving cervical condition over a period of approximately three years.’ His Honour said that the appellant had considerably overstated his suffering. In my view those findings were open to the trial judge on the evidence and the quantum of damages which he found was consistent with the findings. The period of three years was presumably derived from the appellant’s evidence. He said:
[T]he neck was very painful and did not significantly start reducing until the three year mark.
The appellant relied upon a great deal of material directed to the question of the earnings he said he had lost as a consequence of his injuries, ranging from magazine articles to invoices for advertisements for work placed in local newspapers by the appellant. The trial judge dealt with the appellant’s case in a broad brush fashion. I consider that was appropriate having regard to the nature of the claim. As his Honour noted, the assessment of the claim was rendered complicated by reason of the minimal income that the appellant had generated prior to the accident and the fact that he had incidentally developed a lumbar condition. The trial judge was required to determine the stage at which the condition of the appellant’s cervical spine ceased to play a significant part in his ongoing economic loss. Having regard to the paucity of evidence and the large number of assumptions which he was required to make, I consider that the award finally determined by the trial judge was one which was open to him.
For the foregoing reasons I am of the opinion that none of the grounds in the appeal in the proceeding for common law damages has been established.
In the second action launched in the County Court the appellant alleged that he needed a ‘specialised bed’ to cope with the injuries he sustained in the accident on 25 May 1996 and that the Commission, ‘in breach of statutory duty’, had failed to pay for the bed or provide it to the appellant. The appellant claimed that the Commission’s breach caused him pain and suffering, distress and aggravation of the injuries sustained in the accident. He claimed general and punitive damages.
The Commission applied for summary judgment or alternatively to strike out the statement of claim on the grounds that it did not disclose a cause of action, was scandalous, frivolous or vexatious or was an abuse of the process of the Court. The judge in the County Court acceded to the Commission’s application and dismissed the proceeding. His Honour held that the Commission’s duty was to consider the application of the appellant. If the appellant was dissatisfied with the Commission’s decision, his remedy was a review of the decision by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) pursuant to the provisions of s 77 of the Act.
The appellant identified s 60 of the Act as the source of the duty which he alleged the Commission failed to fulfil. The section provides, in part:
(2)The Commission is liable to pay as compensation to a person who is injured … as a result of a Transport accident –
(a)the reasonable costs of … medical services, hospital services, nursing services, disability services, rehabilitation services … received in Australia because of a transport accident …
In my view the cost of a bed of a type calculated to reduce the discomfort and increase the prospects of recovery of a person injured in a transport accident could fall within this provision. The decision whether such a bed was required to meet that need and thus constituted disability or rehabilitation services was a matter for the Commission to determine. It was under no absolute duty to grant a request for compensation. Its duty was to consider the request. If the Commission rejects a request for compensation, the disappointed claimant’s remedy is not an action in damages, but a reconsideration of the claim by the Commission and a review of the Commissioner’s decision pursuant to the provisions of ss 77 and 78 of the Act, which provide:
77(1)A person whose interests are affected by a decision of the Commission may, within 12 months after becoming aware of the decision, apply to the Tribunal for review of the decision.
…
78(1) The Commission must, within 28 days after receiving a copy of an application under s 77 for review of a decision of the Commission, reconsider the decision …
The appellant submitted that s 77 was an alternative to suit against the Commission and contended that that Commission could only refuse a request for compensation if there was ‘evidence which supports the denial of the request or funding.’ He said that he was only required to seek a review of the Commission’s decision by the Tribunal if there was such evidence.
In my opinion, it is clear that there was no absolute duty imposed upon the Commission to grant a request in the absence of evidence opposing the request. The Commission’s duty was to consider matters advanced by a claimant. If the Commission considered the claim was not established, it was entitled to refuse it. That decision could only be reviewed in the manner provided by the Act.
For the foregoing reasons, I would dismiss the appeals arising from both proceedings.
NETTLE JA:
I agree with Buchanan JA.
NEAVE JA:
For the reasons given by Buchanan JA I would also dismiss the appeal. I wish only to add a comment on the effects of the appellant’s neck injury.
It is clear that the appellant has a firm belief that his neck injury is seriously disabling and that the damages awarded to him by the judge below do not adequately compensate him for his economic and non-economic loss. As the trial judge said in his reasons:[2]
The plaintiff is an intense, passionate, young man who I suspect has come to believe his account of his ongoing disability in a way that will not ever be changed…
[2]Richards v Forsyth and TAC (Unreported, County Court of Victoria, Duggan J, 14 December 2006) [55].
The appellant has been occupied in legal proceedings for a considerable period. He represented himself in this Court with intelligence and courtesy. Now that his appeal has failed he has the opportunity to put these matters behind him. It is, of course, not this Court’s function to offer him advice, but I note that he has the intellect and determination to begin his recovery and to consider ways in which he might use his capacities to re-enter the workforce.
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