Robinson v Nominal Defendant

[2000] NSWCA 192

CITATION:	ROBINSON v NOMINAL DEFENDANT [2000] NSWCA 192
FILE NUMBER(S):	CA 40874/99
HEARING DATE(S):	19/07/00
JUDGMENT DATE:	19 July 2000
PARTIES :	David William Robinson - Appellant Nominal Defendant - Respsondent
JUDGMENT OF:	Sheller JA at 1; Foster AJA at 30

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	70176/98
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	A T McInnes QC/R J deMeyrick - Appellant J D Hislop QC/D P M O'Dowd - Respondent
SOLICITORS:	Orchiston Ranzetta Finney - Appellant B Ramrakha - Respondent
CATCHWORDS:	TORTS - negligence - motor vehicle accident - plaintiff appeals from finding on damages - where conflicting medical reports at trial and no oral expert evidence - Motor Accidents Act 1988, ss70A and 79 - NR
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	N/A
DECISION:	1. On the application the Court grants leave to appeal against the verdict on damages ; 2. On the appeal, the appeal is upheld, the verdict on damages set aside; 3. A new trial is ordered; and ; 4. The opponent respondent is to pay the costs of the application and of the appeal.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40874/99
DC 70176/98 (Gosford)

SHELLER JA
FOSTER AJA

Wednesday, 19 July 2000

ROBINSON v NOMINAL DEFENDANT

JUDGMENT

1    SHELLER JA: This is an application for leave to appeal from a decision given by her Honour Judge English on 28 October 1999. The applicant is David William Robinson, who was the unsuccessful plaintiff. The respondent and successful defendant is the Nominal Defendant.

2    On 22 February 1997 at about 4.30 am the applicant was knocked down by an unidentified motor vehicle while he was walking home along Donald Avenue, Umina. As a result he was injured. He sued the Nominal Defendant in the District Court. Judge English found that the applicant’s injuries were the result of the lack of due care on the part of the driver of an unidentified motor vehicle. Her Honour found no contributory negligence and she found that the appropriate steps had been taken to make the Nominal Defendant liable for any damages suffered.

3    The applicant did not recall the events leading up to the accident or the accident itself. His first recollection was “coming to on the roadway and people comforting him”. The applicant was found by a local resident lying on the road. His face was grazed and he had blood on his arms. He was taken to Gosford District Hospital. He was found to have a closed head injury, fractures of the middle third shafts of the right radius and ulna with some comminution and a moderate degree of angulation of the right arm. He had grazes over the elbow and a gross effusion over the elbow. He underwent an open reduction and internal fixation of the fractured right radius and ulna. The orthopaedic surgeon who operated was Dr Stokes.

4    On 24 February 1997 the applicant was discharged from the hospital. On 4 March 1997 he was reviewed at the hospital. He was found to have a slight paraesthesia in the distribution of the radial nerve. On 8 April 1997 a further review occurred, when his cast was removed. Physiotherapy was to continue. He did not attend a further appointment for review on 6 May 1997.

5    The applicant was seen by Dr Raymond Wallace on 8 February 1999 for medico-legal purposes. In a report of 7 April 1999 Dr Wallace recorded the applicant’s complaints as follows:

“He now complains of persisting pain at the right shoulder, elbow and forearm which is worse with any use of his right arm, particularly heavy lifting activities and has no relieving factors. He is right hand dominant.
He complains of intermittent paraesthesia and numbness about the right elbow. He complains of persisting weakness of the right arm. He complains of intermittent locking at the right elbow and stiffness of the right wrist.”

Dr Wallace expressed his opinion as follows:

“At present, I do not believe he would be fit for activities requiring repetitive bending or twisting movements at his right elbow or wrist, repetitive fine motor movements at his right hand, activities requiring normal grip strength at his right hand, working in confined spaces, at heights or on ladders or prolonged driving of a motor vehicle or operation of machinery.
PROGNOSIS: I believe his symptoms will persist despite further conservative treatment. He may derive short term symptomatic relief from an ongoing intermittent course of physiotherapy, massage and medication.”

The doctor went on:

“Unfortunately his occupational choices will be restricted in the future due to ongoing right arm disability. He would be best suited to work involving only clerical duties or light to moderate physical activity with due consideration given to restrictions on his activities detailed above.”

The applicant’s occupation was that of a builder’s labourer.

6    Dr Wallace gave what appears to be a later report, though it also bears the date 7 April 1999. In that report the doctor said

“I believe this patient’s condition has now stabilised and I would estimate he has suffered a permanent loss of efficient use of his right arm at or above the elbow, taking into account the arm as a whole of 17%, directly attributable to injuries sustained as a result of a pedestrian/motor vehicle accident on 22 February 1997. This estimate of disability has been made as compared to a most extreme case. He describes no pre-existing injury at his right arm.”

7    The applicant was also assessed by two doctors on behalf of the Nominal Defendant. One of those, Dr Anthony Millar, gave a report of 23 November 1998, following an examination which had taken place a few days before. Dr Millar said:

“ PRESENT STATE
He states that his forearm and upper arm are both weak when he tries to lift things. The right elbow aches at times with use. There is a full range of movement present in the right upper limb but there is some shoulder soreness when he moves his arm.
….

ON EXAMINATION
Clinical examination showed him to have scarring of the forearm. There was a muscle hernia over the medial bellies of the right forearm.
There were abrasion scars over the elbow.
There was a full range of movement in all joints. Grip in the right hand was slightly reduced when compared with the left. There was no wasting.”

8    Dr Millar opined that the applicant had made a good recovery from his fracture and was fit to return to work. He said:

“Initially he could do all light and moderate work and this could be graded in such a way that he returned to heavy work.
There is no likelihood of any future deterioration occurring. It is probable that some time in the future he will need removal of the screws and plates.
His rehabilitation to date is adequate and no further programs would help him.
The claimant is fit to resume work as I have previously mentioned and his ability to lead a normal life has not been impaired by the accident.”

9    I should observe in passing that the report contains no explanation for that last opinion, bearing in mind the applicant’s statement that his forearm and upper arm were both weak when he tried to lift things and bearing in mind the nature of the applicant’s employment.

10    The second doctor who assessed the applicant on behalf of the defendant was Dr Lloyd Hughes whose report is dated 12 February 1999. Under the heading “Present Symptoms” he said

“He complains that his right elbow becomes stiff sometimes and he has difficulty straightening it occasionally. His right shoulder aches sometimes. His right arm feels a bit weaker than his left and he has difficulty lifting heavy items.”

11    On examination the doctor found:

“There was no deformity of the right upper limb and the circumference of the right upper limb was greater than the circumference of the left upper limb by 0.5 centimetres, consistent with him being right handed and inconsistent with any disuse of the right upper limb. Full painless movements were present in the shoulder, elbow and wrist. The grip of his right hand was normal and strong. There was a surgical scar on the volar aspect of the forearm, but no tenderness anywhere and the sensation was normal. There was no evidence of any nerve damage.”

Dr Hughes opined:

“Based on my clinical assessment, he has regained good function in his right upper limb and undoubtedly x-rays would confirm sound bony union of the previous fractures.
He requires no further treatment and is fit for work in all normal daily activities without restriction.
There is no long term disability as a result of the motor vehicle accident and it will not be necessary to remove the plates from the radius and ulna unless they cause any problems and it does not appear likely that this situation will occur.”

12    Again, in light of the symptoms which the doctor recorded, no explanation appears on the report for his conclusion about the applicant’s fitness for work, bearing in mind again the type of work that the applicant did.

13    In his evidence at the trial, the applicant was asked in chief what problems he had with his right arm. His answer was as follows:

“Where do I start? My elbow locks up and aches in cold weather and so does my wrist and my forearm. It’s been aching because lately we’re coming into winter so I’ve realised that it gives a dull ache in the evening. And my wrist hasn’t got a lot of strength in it. If I try and undo like a tap that’s fairly tight, I can’t. I’ve got to try my left hand because it feels like my wrist is going to snap. Heavy weights I can’t, you know, I can lift average heavy things but to do heavy lifting and bending of the wrist, it’s definitely not a go today.”

14    He was asked if his arm hurt and he said “Yep, it does at different times” and that it hurt some times more than others. Asked how many times in the course of a day or a week he experienced arm pains, he said:

“Lately on average I suppose anything up to 12, 15 times a week, you know I’d notice it, I’d have to think about what was going on with my arm.”

15    Later in his evidence he was asked about whether he had had any difficulties in performing the duties in a particular job to which he was referred and he said this:

“In that job, just slightly because once again because it’s my uncle I’m basically allowed to be a bit choosy and fussy to the degree where I made sure I didn’t do anything which would have - you know, wouldn’t affected my arm. A task basically yeah.”

16    Then a little further on he was asked “What sort of tasks are they that you can’t do or that you are avoiding doing now?” to which he replied:

“Using any sort of spinning machinery, like a big drill or anything where if it catches it will do something to your wrist and using jackhammers, sledge hammers, repetitive lifting of timber like you know carrying bits of timber up a hill like with a pole house. Just general heavy duty sort of labouring stuff.”

17    About these matters of which the applicant gave evidence, no direct cross-examination was put to him. He was asked whether he would take up whatever work was available to him that he could find until he got his carpentry certificate, “the trade qualifications is that right”, and he said “yep, that’s right, yep”. Apart from that, as far as I can see, the applicant’s evidence about what he could do was not challenged.

18    In her reasons for judgment, English DCJ referred to the incidents surrounding the accident and referred to the doctors’ reports. Her Honour said that there was no evidence of what the applicant was earning prior to the accident, or of the rates applicable to labourers as at the date of the accident and about that there seems to be no dispute. Her Honour also said that although no claim had been made for future treatment expenses and loss of superannuation, a new schedule of damages had apparently been prepared and handed up in respect of those two items. Later in the judgment, her Honour said that the applicant sustained severe injuries requiring surgery and hospitalisation. The most serious consequence was the injury to his right arm involving his wrist and forearm. The respondent’s medico-legal experts acknowledged the seriousness of the injuries but are of the opinion that his normal life is likely to be unimpaired and there was no impairment of his earning capacity. His expert takes a different view. Her Honour then referred to what the applicant had said in evidence about his difficulties with lifting heavy weights and his neck and shoulder ache. The judgment continued:

“Where there is a conflict between treating doctors and the medico-legal experts I would normally defer to the treating doctors, however there is no opinion from the treating doctor other than a report prepared by the assistant director of medical services from Gosford District Hospital, only a summary of the treatment afforded to the plaintiff. The plaintiff has sought no treatment since May 1997. I must therefore look to the medico legal experts.
The overwhelming weight of the medical evidence is that although his injuries were serious at the time of the accident, it cannot be said that his ability to lead a normal life is significantly impaired by his injuries, nor can it be said there is any impairment to his income earning capacity. He is fit for work without restriction.”

19    Her Honour then said that there was insufficient evidence to enable a calculation of past economic loss and again it seems that what her Honour said there was correct. She then referred to a drug rehabilitation program that the applicant had undertaken after the accident Following the drug rehabilitation program he sometimes worked five days a week and sometimes one day a week depending on the availability of work. Her Honour then said on the evidence this appears to be no different from his pre-accident employment situation. She then referred to that part of his evidence which I have quoted, relating to his use of heavy equipment. The judgment continued:

“Having regard to all of the evidence, I am not persuaded on the balance of probabilities that he has suffered from any loss of earning capacity. There was no claim made for out of pocket expenses. The plaintiff has been left with plates and screws in his right forearm which undoubtedly will require removal. There is no evidence to quantify the cost of that procedure. Dr Wallace recommends ongoing physiotherapy but it is not supported by the overwhelming weight of medical evidence on behalf of the defendant.
Accordingly, the defendant is liable to the plaintiff in negligence. The plaintiff is not guilty of contributory negligence. The plaintiff’s ability to lead a normal life has not been and is not significantly impaired by the injuries sustained in the accident. No award is made in respect of past or future economic loss. No award is made in respect of superannuation. No award is made in respect of past or future medical expenses. There will be a verdict and judgment for the plaintiff on liability. There will be a verdict for the defendant on damages.”

20    The applicant seeks leave to appeal from that part of her Honour’s judgment in which she gave a verdict for the defendant on damages. A number of grounds are advanced on behalf of the applicant for this appeal.

21    It should be said at once that in the way that the case was presented to the trial Judge, the task of evaluating the medical evidence was extremely difficult. It is true, as has been pointed out for the opponent, that the applicant failed to call the treating doctor, presumably Dr Stokes, who operated immediately after the accident. The applicant saw fit simply to rely upon the report of Dr Wallace, who was not called. Similarly, the opponent relied upon two doctors who did not give oral evidence.

22    For my part, I should again express my surprise that cases of this sort, where there is dispute between expert doctors about diagnosis, can be resolved without any doctor being called to give oral evidence and to answer questions dealing with the matters of dispute or debate. We were informed from the bar table that in the District Court, parties are not permitted to call medical witnesses in cases such as this without first applying to the Court by notice of motion. However that may be, the task remains for the Judge to make a determination based on the evidence before the Judge.

23    In the present case, her Honour began that task by remarking that normally she deferred to the treating doctors. In this case of course there was no treating doctor’s report. She then came to the medico-legal experts and said that the overwhelming weight of the medical evidence was effectively that of the opponent’s doctors. No explanation was given of how that could be. As I have observed, the reports of those doctors are internally inconsistent but what is perhaps more important is that in the histories, they take no account of the evidence which the plaintiff gave. Nowhere in the judgment does her Honour say that she rejects the evidence of the applicant and indeed it would be difficult to do so since it passed in evidence without challenge in cross-examination. On the other hand, the report of Dr Wallace is substantially based on a history which conforms with the applicant’s evidence.

24    On that basis, it seems to me impossible on the explanation, so far as it appears from her Honour’s reasons for judgment, to conclude that the defendant’s medical evidence overwhelmed that of the plaintiff. I am quite satisfied that in coming to that conclusion her Honour erred. She erred simply because she reached it without paying proper or any attention to the evidence that the plaintiff had given, or proper or any attention to the particular terms of those two reports. That being so, ordinarily this would appear to be an appropriate case for there to be a new trial dealing with damages. However, there stand in the way of that choice further obstacles.

25 Section 70A of the Motor Accidents Act 1988 provides as follows:

“ Claimant’s prospects of future economic loss
A court shall not award damages for future economic loss or damages for diminution of future economic capacity unless the claimant first satisfies the court that there is at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least at a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity, as the case requires.”

26 Section 79A(3) and (4) provide as follows:

(3) No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident.
(4) No damages may be awarded for non-economic loss unless the severity of the non-economic loss of the injured person is at least 15 per cent of a most extreme case.”

27    In the course of her judgment, her Honour made no reference to those sections. However, the opponent has argued that while not referring to them she made findings from which the conclusion could only be drawn that the thresholds or requirements of those two sections had not been reached by the applicant. Those thresholds remain. There seems to me to be a difficult question in the present case about the extent to which the applicant would be entitled to a significant amount of damages if the matter were to go to a new trial. At least it seems that the restrictions placed by s79A on what can be recovered by way of damages for non-economic loss raise doubt whether on the basis of the medical evidence before the Court any significant amount of damages would be recovered.

28    In terms of future economic loss, the matter is more difficult. The medical evidence is quite limited. However, the applicant is a comparatively young man whose future earning capacity depends upon physical labour. That being so, I am not persuaded that for future economic loss significant damages would not be recoverable.

29    In all the circumstances I am satisfied that there has in this case been a miscarriage of justice. In my opinion, this is an appropriate case for leave to be granted. I am satisfied that her Honour’s approach to the evidence demonstrated such error that the verdict in favour of the defendant on damages should be set aside and that a new trial on damages should be ordered. Of course, in step with that process it is my opinion that the appeal should be upheld and the opponent ordered to pay the costs of the application and also of the appeal. I do not know whether or not the Nominal Defendant is entitled to a certificate under the Suitors’ Fund Act 1951.

30    FOSTER AJA: Yes, I agree with the orders proposed and the reasons that have been given.
31    SHELLER JA: The order of the Court will be:

1. On the application the Court grants leave to appeal against the verdict on damages,
2. On the appeal, the appeal is upheld, the verdict on damages set aside,
3. A new trial is ordered; and
4. The opponent respondent is to pay the costs of the application and of the appeal.

Are you entitled to a certificate, Mr Hislop?
32    HISLOP SC: I am instructed no, your Honour.

*****