Ryan v Bunnings Group Limited (No 3); Ryan v Eastlake Football Club Limited (No 3); Ryan v Bhagria (No 3); Ryan v
[2022] ACTCA 29
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ryan v Bunnings Group Limited (No 3); Ryan v Eastlake Football Club Limited (No 3); Ryan v Bhagria (No 3); Ryan v O’Halloran (No 3); Ryan v Cain (No 4) |
Citation: | [2022] ACTCA 29 |
Hearing Date: | 16 May 2022 |
DecisionDate: | 23 June 2022 |
Before: | Elkaim, Kennett, Stewart JJ |
Decision: | Each appeal dismissed with costs |
Catchwords: | APPEAL – MULTIPLE ACCIDENTS – Fresh evidence – no appeal from credit and reliability findings – identification of errors subject to credit and reliability findings – costs |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44 and 168 Court Procedures Rules 2006 (ACT) Pt 2.10, r 1720 |
Cases Cited: | Fox v Percy [2003] HCA 22; 214 CLR 118 Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353 TS v DT [2020] ACTCA 43 |
Parties: | Mark Ryan (Applicant/Appellant) Bunnings Group Limited (Respondent in ACTCA 6 of 2021) Eastlake Football Club Limited (Respondent in ACTCA 7 of 2021) Tejinder Bhagria (First Respondent in ACTCA 8 of 2021) AAI Limited t/as GIO (Second Respondent in ACTCA 8 of 2021) Jade O’Halloran (First Respondent in ACTCA 9 of 2021) Stephen Cain (First Respondent in ACTCA 10 of 2021) Insurance Australia Limited t/as NRMA Insurance (Second Respondent in ACTCA 9 and 10 of 2021) |
Representation: | Counsel Self-represented (Applicant/Appellant) D Shillington (Respondent in ACTCA 6 of 2021) B Kelleher SC (Respondent in ACTCA 7 of 2021) S Onitiri (Respondents in ACTCA 8 of 2021) W Fitzsimmons SC (Respondents in ACTCA 9 and 10 of 2021) |
| Solicitors Self-represented (Applicant/Appellant) Bradley Allen Love (Respondent in ACTCA 6 of 2021) Sparke Helmore (Respondent in ACTCA 7 of 2021) Moray & Agnew (Respondents in ACTCA 8 of 2021) HWL Ebsworth (Respondents in ACTCA 9 and 10 of 2021) | |
File Number(s): | ACTCA 6 of 2021 ACTCA 7 of 2021 ACTCA 8 of 2021 ACTCA 9 of 2021 ACTCA 10 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 23 December 2020 Case Title: Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor Citation: [2020] ACTSC 353 |
THE COURT
Introduction
This is an appeal from a decision of the primary judge handed down on 23 December 2020 (Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353). The hearing had commenced on 18 February 2019 and then continued over 28 days spread through the period up to the final hearing day of 17 February 2020. The decision was then reserved.
The appellant was the plaintiff in four separate actions which alleged personal injury to him arising from five separate incidents. Her Honour summarised the incidents at the beginning of her judgment:
1.This case arises out of several claims brought against multiple defendants by a single plaintiff, Mr Mark Ryan (the plaintiff). In brief summary, the relevant incidents, in chronological order, are as follows:
(a) On 18 January 2012, the plaintiff entered the Bunnings store in Fyshwick and an employee’s arm made contact with his face (the Bunnings Incident);
(b) On 20 December 2013, the plaintiff was involved in a motor vehicle accident when his vehicle was struck on the left side at a roundabout on Canberra Avenue (Motor Vehicle Accident 1 – MVA 1);
(c) On 15 February 2014, the plaintiff was involved in an incident where it is alleged he was falsely imprisoned and assaulted at Eastlake Football Club (the Eastlake Incident);
(d) On 31 August 2015, the plaintiff was involved in a motor vehicle accident when his parked car was struck from behind (Motor Vehicle Accident 2 – MVA 2);
(e) On 25 January 2018, the plaintiff was involved in a motor vehicle accident when his car, stationary at the intersection of Coranderrk Street and Parkes Way, was struck from behind (Motor Vehicle Accident 3 – MVA 3).
The motor accidents described by her Honour as MVA 1 and MVA 2 were part of the same proceedings. The other incidents, including MVA 3, were each the subject of separate suits.
Prior to the commencement of the substantive hearing, her Honour made a consent order, on 31 January 2019, that the four proceedings “were to be heard concurrently and sequentially and that evidence in one matter was to be evidence in all matters”.
The final orders were as follows:
779. In relation to the Bunnings Incident (SC 268 of 2017), I make the following orders:
(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.
780. In relation to MVA 1 (SC 312 of 2017), I make the following orders:
(a) Judgment is entered for the plaintiff in the amount of $11,190.
(b) Defendant to pay the plaintiff’s costs.
781. In relation to the Eastlake Incident (SC 267 of 2017), I make the following orders:
(a) Judgment is entered for the plaintiff in the amount of $57,500.
(b) Defendant to pay the plaintiff’s costs.
782. In relation to MVA 2 (SC 312 of 2017), I make the following orders:
(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.
783. In relation to MVA 3 (SC 510 of 2018), I make the following orders:
(a) Judgment is entered for the defendant.
(b) Plaintiff to pay the defendant’s costs.
784. Liberty to all parties to apply in respect of any alternate costs order within 21 days.
Her Honour made separate costs orders in two further judgments (Ryan v O’Halloran(No 2) [2021] ACTSC 230 and Ryan v Eastlake Football Club Limited(No 2) [2021] ACTSC 231). The first of these is also the subject of the appeal (Second Amended Notice of Appeal filed on 23 February 2022).
Further evidence
At the commencement of the appeal hearing the Court dealt with an application by the appellant to adduce further evidence. Mr Ryan handed up a bundle of documents on which he sought to rely.
The principles relevant to such an application are set out in TS v DT [2020] ACTCA 43 at [57] and [58], where Collier J said:
57.Principles referable to admission of further evidence on appeal were set out by the Court of Appeal in Jovanovic v R [2015] ACTCA 29, where their Honours observed:
21.Section 37N(3) of the [Supreme Court Act1933 (ACT)] provides that the Court of Appeal “may receive further evidence” by oral examination, affidavit or other means. There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.
22.Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164].
23.As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed:
The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.
At [119] the Court further explained:
...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result.
(Citations omitted)
58.It follows that the key questions in determining whether to permit a party to adduce further evidence on appeal are:
(a)Whether the evidence was reasonably available to be led at the time of the primary hearing;
(b)Whether the failure to put the material into evidence was due to mistake or oversight (Nouri v Australian Capital Territory [2020] ACTCA 1 at [86]);
(c)Whether there was any irregularity attendant on the primary proceedings which may have prevented a party from putting his or her case effectively; and
(d)Whether the further evidence would have made a difference in terms of the primary decision (Head v Evans [2020] ACTCA 26 at [34]).
After hearing submissions from the parties the Court adjourned to consider the application. The parties were then informed that the application had been unsuccessful and that reasons would be given in this judgment. The reasons are as follows.
Documents 1 to 3, 5, 8, 9, 11, 12 and 14 to 16 in Mr Ryan’s bundle were medical records and certificates discussing various aspects of Mr Ryan’s health at times in 2021 and 2022. While it is clear that they could not have been tendered in the proceeding below, it is also clear that they can have no bearing on the correctness of the judgment.
Documents 4 and 6 are additional expert reports:
(a)Document 4 is an assessment of Mr Ryan’s notional loss of earnings arising from the various incidents. Apart from there being no explanation as to why a report from this witness could not have been obtained in time to tender it in the proceedings below, the report suffers from the obvious weakness that it assumes all of Mr Ryan’s loss of income to be caused by a series of accidents including (but not limited to) those which were the subject of the proceeding below. That assumption is contrary to the findings below, and the report thus becomes potentially useful only if those findings are overturned in the appeal. Further, it does not attempt to distinguish the effect of injuries arising from those incidents from other things that were not in issue (such as a fall in 2019) or, for that matter, from other events in Mr Ryan’s life or underlying conditions.
(b)Document 6 is a further report from Dr Smith, who gave evidence below, dated 22 November 2021. It does no more than acknowledge a factual error in one of his earlier reports as to when Mr Ryan ceased working as a chiropractor.
Documents 7 and 10 appear to be evidence that could have been adduced below. There may be good reasons why this material was not adduced. However, it would not have affected the outcome:
(a)Document 7 purports to be a transcript of a conversation between Mr Ryan and Ms O’Halloran, the other driver involved in MVA 1, soon after that accident occurred. Ms O’Halloran conceded in the proceeding below that she had breached her duty of care, so that the only real issue was whether the accident had caused injury to Mr Ryan. Evidence of the conversation was not capable of shedding any real light on that issue. (This document faces two other hurdles. First, it would not be admitted into evidence without evidence from a witness attesting to its accuracy, which has not been provided. Second, there is no indication that the conversation was recorded with Ms O’Halloran’s consent so that, on the face of it, a recording or transcript cannot be tendered: Listening Devices Act 1992 (ACT) s 10.)
(b)Document 10 appears to be a set of photographs taken soon after MVA 2 showing the front of Mr Cain’s vehicle, what we take to be the surrounding area, and the rear and underside of an unidentified vehicle on a hoist. If admitted into evidence, these would serve only to support the finding that the accident was a very minor one. (This material would also need somebody to attest to its origin in order to be admitted.)
There is a further reason why Documents 7 and 10 should not be admitted. They relate to issues upon which witnesses were questioned in the trial and, if they were considered likely to affect the result in some way, fairness would require those witnesses to be called in the appeal. That would have very likely prevented the appeals from being heard within the time allocated for them. This is not decisive in itself, but it is a discretionary factor that takes on some importance when considered alongside the very late stage at which the proposed further evidence was made known to the Court and the respondents.
The relevance of the remaining documents is, with respect, obscure:
(a)Document 13 is a series of photographs described as “photos ladder position post 3rd MV accident”. It is not apparent when or by whom these photographs were taken or what is sought to be proved by them.
(b)Document 17 is another photograph described as “hit on head bus door Dec ’17/Jan ‘18” and showing what appears to be a small wound on a man’s head.
(c)Document 18 is a letter headed “Emergency Department Discharge Letter”, addressed to a General Practitioner in Queanbeyan and describing Mr Ryan having presented with “nebulous neurological symptoms” on 26 January 2018 (the day after MVA 3). It bears the words “Not Sent” in bold text at the top of each page.
Credibility of the appellant
Her Honour, appropriately, dealt with each of the proceedings separately in her reasons. However before doing so she made some brief comments about the appellant’s background, set out the contents of an agreed statement of issues and then made an extensive analysis of the appellant’s credit.
The description of the appellant’s background included reference to a “lengthy and complex history of injuries and conditions dating back to at least 1992”.
The analysis of the appellant’s credit was a product of the respondents, at a very early stage, making it clear to her Honour that the appellant’s credit was a significant issue in each of the actions. The respondents, in their submissions, relied heavily on the demeanour of the appellant.
Her Honour rejected reliance on demeanour. Her Honour concluded, at [31]:
It is important at this juncture that I make it clear that my view of the plaintiff’s credibility is not based on his demeanour. Nor is my view based on the history of past claims. Nor is my view of his credibility based on poor historianship.
Notwithstanding the matters her Honour did not take into account she nevertheless reached the following conclusion:
73.I have formed the view, after considering the contradictory evidence in relation to the three incidents from three independent witnesses and the contradictory evidence from contemporaneous documents discussed above, that the plaintiff is an unreliable witness.
74.The extent of the contradictory evidence casts a shadow over the plaintiff’s evidence. I have come to the conclusion that his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence: see Maric v The Nominal Defendant [2012] NSWDC 69 at [118]. See also Maric v Nominal Defendant [2013] NSWCA 190 at [23].
75.The approach I will adopt is that reliance on the plaintiff’s evidence will be dependent on independent corroboration: see Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 at [964]; Kalenik v Apostolidis & Ors [2009] VSC 208 at [595]; and Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 at [83].
76.As I have indicated above at [31], and I underline it here, in making my assessment of the plaintiff, I have not taken into account his demeanour in the witness box. As a general proposition, it is not appropriate, other than in exceptional circumstances, to base any factual findings upon how a person presents in the unfamiliar and often daunting position of being a witness who is subjected to cross-examination: see Maric v The Nominal Defendant [2012] NSWDC 69 at [119] and Fox v Percy at [31].
77.While I am entitled to take into account my own observations of the plaintiff’s demeanour and the manner in which he gave evidence, I will refrain from doing so. While his manner of giving evidence was at times what can only be described as idiosyncratic, it is not appropriate in light of the authorities discussed above in relation to demeanour to do so. It is important to cast a clinical forensic eye over the substance of the evidence in this case rather than rely on potentially amorphous indicators of demeanour.
78.Additionally, as I have indicated above at [31] and underline here, in coming to my assessment of the plaintiff’s credit, I have put aside entirely the fact that the plaintiff has a history of past claims. The history of past claims cannot be, and is not, relevant to my determination of credit.
79.Finally, in relation to credit, the plaintiff’s written submissions at [3.1] state:
To assume a poor historian is for that reason alone not entitled to be believed. Even though there was abundant psychiatric evidence that the plaintiff was suffering from depression, that depression has an adverse impact on cognitive ability, and memory, that the Plaintiff suffered from reduction in his cognitive and memory, thereby making him a poor historian.
80.As I have stated above, I put aside any question of the plaintiff being a poor historian and, for that reason alone, not entitled to be believed.
81.The matters I have discussed above in relation to contradictory evidence from other witnesses and contradictory evidence from contemporaneous documents are not matters of mere poor historianship. In my view, these are matters that have a direct, significant, and telling impact on the plaintiff’s credibility and reliability.
At [33], her Honour specifically stated the reasons behind her rejection of the appellant’s credibility:
My adverse view of the plaintiff’s credibility is based on the following:
(a)contradictory evidence of the same events from another witness, specifically three separate witnesses in relation to three separate events; and
(b)contradictory evidence from contemporaneous documents.
The three witnesses referred to by her Honour were Mr Stephen Cain (the driver of the other vehicle involved in MVA 2), Ms Jade O’Halloran (occupying the same position in MVA 1) and Ms Vicki Schramm (the allegedly negligent employee in the Bunnings incident). Despite dealing with each of these witnesses separately, the primary judge made almost precisely the same statement about each of them:
(a)At [35]: “In my view, the defendant, Mr Cain, gave straightforward, clear, and precise evidence and was not shaken under cross examination”.
(b)At [38]: “In my view, Ms O’Halloran gave clear and straightforward evidence and was not shaken to any significant extent under cross examination”.
(c)At [43]: “Ms Schramm gave straightforward, clear, and precise evidence and was not shaken in cross-examination”.
If the observations of straightforward and clear evidence are observations of demeanour then it may be that the primary judge applied a different test, in assessing credibility, to the respondents’ witnesses compared to that applied to the appellant. However, if there is a distinction it is not one to the detriment of the appellant. His demeanour was the subject of much critical comment by the respondents. If her Honour excluded the appellant’s demeanour from her consideration that can only have been to his benefit.
Consistent with her observations at [33], the primary judge discussed, from [45], a number of contemporary documents which she found contradicted the appellant’s case. As will be seen below in respect of the Bunnings incident, no mention was made of a certain document arguably supportive of the appellant.
It is to be observed here that the appellant, through his notices of appeal, does not actually challenge any of the findings on credit. In addition the appellant’s written submissions do not take all of the points raised in the grounds of appeal. The appellant was self-represented but said that he had had the assistance of another person, with legal training, in the preparation of the written submissions. He also said that he did not wish to add anything to the written submissions. Accordingly these reasons generally deal with the appeal on the basis of the points raised in the written submissions.
Following the conclusions on credit, her Honour set out some principles relating to the assessment of damages. She also referred to the relevant legislation, the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act).
The next part of the judgment was a chronological examination of each of the incidents said by the appellant to give rise to a cause of action for damages in his favour. It is immediately evident that the analysis of each incident took place against the background of an already made general conclusion on credit applying globally to all of the incidents.
The effect of this approach might be seen as tainting the necessary application of separate consideration being given to each case. It is not inconceivable, for example, that the appellant’s evidence in respect of one incident may have been exaggerated, perhaps even fabricated, yet he was entirely reliable in respect of another incident.
The better approach, however, is that the order made by her Honour that evidence in each case be evidence in the other cases permitted a transporting of considerations and conclusions across the whole of the litigation. This is the specific intent of an order of this nature. It did not prevent Mr Ryan from arguing that, despite a global finding adverse to his credibility, there was a reason why his evidence on a particular issue should be accepted. Accordingly, a finding concerning an issue (such as credit or reliability) in one case, based on evidence in that case, could be legitimately applied to the same issue in any one or more of the other cases.
Taking the approach set out in the preceding paragraph, together with the absence of a specific appeal on credibility, results in a significant hurdle being placed in front of the appellant’s chances of success in his appeal.
It might be thought that her Honour’s approach of disregarding the appellant’s demeanour removes, as a factor before this Court, the usually accepted recognition of the advantages held by a trial judge. However, as pointed out in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], this advantage extends beyond the observation of demeanour:
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Thus, where the primary judge legitimately reached a conclusion derived from the unreliability of the appellant as a witness, in particular in contrast to the reliability of an opposing witness, then, without more, the appellant faces an almost insurmountable task.
There is however ‘more’ in three of the cases. As will be seen below there are considerations separate to credit and reliability. Ultimately however, they are not considerations which will result in success in any of the appeals.
Ryan v Bunnings Group Limited
A verdict was entered for the defendant on this action. Her Honour found that notwithstanding the existence of a duty of care owed by Bunnings as an occupier, there had been no breach of that duty. Her Honour stated at [222]:
222.I find there was no breach of the duty of care owed by Bunnings. In coming to this conclusion, I have taken into account the following:
(a) The plaintiff was a legal entrant: s 168(2)(b).
(b) The premises are commercial and open to the public: s 168(2)(c).
(c)The defendant encouraged the attendance of the public on the premises: s 168(2)(d).
(d)The plaintiff was an adult with no special requirements (s 168(2)(e)) and an ability to appreciate the dangers posed by “people greeters” (s 168(2)(f)).
(e) There was a trivial degree of contact.
223. In particular, I have taken into account the following considerations:
(a)As to the gravity and likelihood of the probable injury, I have formed the view that it is highly unlikely that an entrant into Bunnings premises would suffer any injury of any significance as a result of coming into contact with an employee when an employee points at an object or in a direction. It is common sense that an employee would be asked by customers where particular items might be located, and a response might involve pointing in a particular direction: s 168(2)(a).
(b)As to the burden for the occupier of removing the danger or protecting the person entering the premises from the danger, compared to the risk of danger to the person, this would be a significant burden. It would appear to involve the proposition that all employees, not only “people greeters”, should be directed to have their hands by their sides at all times: s 168(2)(g).
It is apparent from the passages quoted in the preceding paragraph that her Honour’s assessment as to whether or not there had been a breach of the duty of care owed by Bunnings to the appellant was based on the considerations listed in s 168(2) of the Wrongs Act. These considerations, however, only apply where the source of harm arises from the “state of the premises” or “things done or omitted to be done about the state of the premises” (s 168(1)).
The statement of claim (page 144 of Appeal Folder A) does not allege that the appellant was injured as a result of any defect in the state of the premises. The pleading does not mention s 168. It makes no reference to the state of the premises.
The appellant’s submissions on liability, as set out from [177] made no mention of s 168. They concentrated on the general principles relating to a duty of care in ss 42, 43 and 44 of the Wrongs Act. It seems to have been Bunnings that introduced s 168 as the appropriate test (see [187] onwards), although it also made submissions relating to s 43 (as seen at [188] and [189].
The matter is appropriately pleaded as an act of negligence of an employee, for which the employer was vicariously liable, in swinging her arm and striking the appellant. There are also allegations against the employer directly of failing to properly instruct or train the employee.
The alleged harm in this case had nothing to do with the state of the premises. It arose from Ms Schramm lifting up her arm. There was no suggestion that Ms Schramm was not acting in the course of her employment. The only matter that should have confronted her Honour was whether or not Ms Schramm was negligent in the way she acted. It would then become a subsequent question of whether Ms Schramm’s actions had caused any harm to the appellant.
Plainly, her Honour was incorrect in applying the considerations in s 168(2) to the facts of this case.
The amended Notice of Appeal (page 152 of Appeal Folder A) asserts two grounds in respect of liability: that the primary judge “erred in concluding the respondent and/or its employees did not breach its duty of care to the appellant” and “erred in accepting the version of the incident given by the employees of the Respondent, Ms Vicki Schramm and Ms Sandra Westlin”.
Although the error in applying s 168 is not specifically mentioned, it does fall within the general scope of the asserted error concerning the finding of an absence of a breach of the duty of care. In addition the error is one of the application of the law applicable to the facts. Further, the appellant is self-represented in this Court and is entitled to a degree of leeway.
What then is the effect of the error? Her Honour stated at [213]:
As discussed above at [73]-[81], in my view, the plaintiff is an unreliable witness. I prefer the evidence of Ms Schramm that the contact with the plaintiff was in the nature of a brushing contact (T 1077.39) and not a “smack” (T 57.35). I find that when he visited the Bunnings store at Fyshwick his face was brushed by the hand of Ms Schramm when she had her arm outstretched. The contact was slight and trivial and of a brushing nature. I am not satisfied on the balance of probabilities that it caused any injuries or sequalae to the plaintiff.
If her Honour had applied the correct test, namely that derived from ss 42, 43 and 44, the findings as set out in the preceding paragraph would have led to the same result, namely that there had been no breach of the duty of care. Once Ms Schramm’s version was accepted there was no scope for any other conclusion.
The appellant submitted that her Honour should not have accepted the evidence of Ms Schramm in the face of an incident report which had been prepared by the staff at Bunnings.
It is evident from [214] and [215] of the reasons that her Honour’s acceptance of the evidence of two of the respondent’s witnesses (Ms Schramm and Ms Westlin) over the evidence of the appellant was a central consideration in her rejection of the appellant’s case.
The incident occurred on 18 January 2012. The report is dated the same day. It states:
As customer Mark Ryan was walking into the main/front entry of the store, he was struck in the nose by TM Vicki’s hand. Vicki was NA discussion with Witness TM Sandy at the time and was gesturing with her left hand. Customer claimed he was experiencing difficulty breathing after the incident. Customer’s nose was not bleeding after the incident.
The appellant’s assertion is that her Honour ignored this version in assessing Ms Schramm’s evidence. In particular her Honour gave no weight to parts of Ms Schramm’s evidence not being contained in the report and, more importantly, ignored the fact that the incident report refers to the appellant being “struck in the nose”, a version consistent with the appellant’s version of the contact with Ms Schramm, and inconsistent with her oral evidence of a mere “brushing” contact with the back of her left hand.
Ms Schramm was cross-examined about the incident report. The cross-examiner did not ask Ms Schramm about the reference to Mr Ryan being struck in the report. But he did squarely put the allegation to Ms Schramm:
Q.Whether you did or didn't, what I'm suggesting to you is that is what happened. You turned to your - standing where you were, gestured with your left hand in a manner where your left hand swung towards Mr Ryan. I accept completely that you - by the way, this was an accident; you didn't know he was there. No issue about that. And he, walking towards you, was struck by your hand. That's how it happened wasn't it?
A. No.
(Transcript page 1082)
It is to be recalled that at [33] Her Honour had specifically stated that one of the bases for her findings against the appellant’s credibility was “contradictory evidence from contemporaneous documents”. The incident report was a contemporaneous document. It is not mentioned at all from [41] to [44] where the primary judge gave her reasons for accepting Ms Schramm’s evidence rather than that of the appellant.
It was submitted that the failure to give consideration to the incident report was an error on the part of the primary judge. This is a conclusion which is open but is subject to some limitations to the incident report which make any error of little consequence.
Although the report was apparently compiled on the day of the incident, the source of the information in it is not known. It was never suggested to Ms Schramm or Ms Westlin that they provided the description in the report. It may well have come from the appellant, in which case the most that could be said of it is that it is a consistent statement by him of his own version.
Absent any knowledge of the provider of the version in the incident report, the report has almost no weight. If the primary judge did fail to consider it, that does not undermine her Honour’s conclusions in any material way.
It follows that the appeal in respect of the Bunnings incident must fail.
MVA 1
This accident occurred on 20 December 2013 in the roundabout at the intersection of Parkes Way and Coranderrk Street. Breach of duty of care was admitted by the respondents.
This was the accident in which Ms O’Halloran was involved. The appellant’s case was of a significant accident causing yet further injury to his already ravaged body. The appellant alleged aggravations or an exacerbation of existing injuries to his neck, right knee and ankle. There was a fresh injury to his right elbow.
Ms O’Halloran said the accident was “a very minor bump”. As already seen, her Honour preferred the version given by Ms O’Halloran. This included both the minor nature of the accident and the description of damage as “slight”.
Her Honour’s conclusions are set out from [305]:
305.Consequent upon accepting Ms O’Halloran’s version of the accident, the medical evidence, discussed above at length, would indicate, and I find that the plaintiff is unlikely to have sustained any injuries of ongoing significance in this motor vehicle accident and any injury suffered in the accident is now fully resolved.
306.In assessing whether the plaintiff suffered injury and in assessing what disabilities would flow from the accident, I have had regard to the following:
(a)the nature of the collision;
(b)the plaintiff’s apparent lack of injury immediately following the collision;
(c)the plaintiff’s pre-existing injuries;
(d)the detailed medical evidence outlined above; and
(e)CCTV footage of the plaintiff approximately seven weeks later in which he is apparently moving without restriction at Eastlake Football Club.
The primary judge then accepted the respondents’ submissions on damages and ultimately awarded the appellant $11,190, made up of general damages of $8,500, interest of $1,190 and medical expenses of $1,500.
The appeal rests on an assertion that the amount awarded for general damages is inadequate. Support was drawn from a report of a Dr Kelman, an orthopaedic surgeon, who had been retained by the respondents. The report was Exhibit 5 in the proceedings. Dr Kelman’s opinion included the following:
I consider that his restrictions and treatment needs are in part attributable to previous conditions to the extent of 90% from previous condition and 10% from the most recent injury.
Mr Ryan has lost income as a result of his pre-existing condition. His loss of income is not directly as a result of the injury of 20 December 2013 although this accident may have a contributing factor. I do not consider it is greater than 10% of his overall disability.
The appellant also referred to a CT scan report by Dr Laguna. The CT scan took place one day after the accident. In relation to the C 5 to C 7 level of the appellant’s spine the report identified some minor early spondylotic changes.
A later CT scan, also reported on by Dr Laguna, took place on 18 February 2014. The scan identified at level C 5-6 a “large central posterior disc bulge eccentric to the right”. It was submitted that the disc bulge was consistent with injury from the motor accident, the scans indicating the development of the bulge following the accident.
The CT scan results were in turn consistent with the finding of a 10 per cent contribution by Dr Kelman. There are some difficulties with the appellant’s reliance upon Dr Kelman’s report:
(a)The report is based on an incomplete history. He was not made aware of the Bunnings incident or the Eastlake incident. Suffice to say an opinion is only as strong as the accuracy of the material upon which it is based.
(b)Dr Kelman gave oral evidence. He rejected the suggestion that matters disclosed in the CT scan results of 18 February 2014 had been caused by the 2013 motor vehicle accident. He said they were more consistent with “the continuation of the underlying degenerative process”.
(c)Although her Honour found that the injury from the accident was short lived, but Dr Kelman thought the 10 per cent was a continuing disability, the finding of general damages of $8,500 might be seen as falling within the bounds of a contribution of 10 per cent.
Reliance on the views of Drs Laguna and Kelman ultimately do not assist the appellant. Their views are as consistent with the continuation of the degenerative process as with any marked injury occurring in the motor vehicle accident.
The appellant also complained about the rejection of any psychological harm arising from the accident. It was submitted that: “The aggravation of the appellant’s neck injury following the motor vehicle accident also contributes, in part, to his depressive illness”.
The appellant relied on a report of a Dr Smith, a psychiatrist. In his report of 7 February 2018 Dr Smith said:
The motor vehicle accident of 20 December 2013, he described as less impacting, but noted that he had aggravation of already impaired functioning related to an aggravation of cervical pathology.
Reliance was then conjured from a passage in the cross-examination of Dr Smith:
Q.If you took away any causal connection between the accident on 31 August 2015 and this man’s deteriorating vision, then you’d agree that the consequence of the 31 August accident, like the consequence of the December 2013 accident, was of minor moment in the overall scheme of things, considering this man’s history?
A.Yes.
It is difficult to understand the significance of a psychiatrist’s history from the appellant of an aggravation of cervical pathology, in particular against the whole of the medical evidence suggesting the continuation of degenerative change.
Secondly the “minor moment” confirmed by Dr Smith, once again, is quite consistent with the limited damages awarded by the primary judge.
The appellant therefore has not revealed any error in her Honour’s assessment of general damages at $8,500.
A Second Amended Notice of Appeal filed in this matter also takes issue with the separate judgment as to costs delivered by her Honour in September 2021 (Ryan v O’Halloran(No 2) [2021] ACTSC 230 (the costs judgment)). The costs judgment dealt with applications to vary the costs orders made in the proceeding below that encompassed MVA 1 and MVA 2, which is not the subject of two appeals by Mr Ryan. However, the costs ultimately awarded in relation to MVA 1 and relevant to this appeal ($2,500, a sum limited by statute) were not actually the subject of any complaint or submissions. The dispute as to the costs orders below actually arises in relation to MVA 2 and is dealt with there.
The Eastlake incident
This incident occurred on 15 February 2014. The appellant was at a club where he fell out with the staff. He alleged that the staff had assaulted him and wrongfully imprisoned him, causing significant injury to assorted parts of his body, as well as a number of continuing disabilities. These are set out in the primary judgment at [312] and [313].
The club denied the allegations and called a number of lay witnesses to refute the appellant’s case. The primary judge found in favour of the appellant and awarded him $57,500 made up of damages for false imprisonment of $10,000, for battery of $40,000, for out-of-pocket expenses of $1,500 and interest of $6,000.
Although the appeal is limited to the quantum of the amount awarded it is worth noting that although the appellant succeeded on liability, he did not do so because his version was accepted over that of the defendant’s witnesses. The primary judge generally accepted the defendant’s witnesses but relied on CCTV footage to reach her ultimate conclusions. No complaint is made about this approach. There is no cross-appeal by the respondent.
In calculating damages, the primary judge was once again confronted with the difficulties arising from her scepticism of the appellant’s evidence complicated by the task of working out which injuries were caused by, or aggravated by, the Eastlake incident.
The primary judge made factual findings as to the injuries that had been caused by this incident. They are set out from [490]. The conclusion is at [492]:
The plaintiff suffered no orthopaedic injury. No bone was broken, nor ligaments ruptured. Rather, there were complaints of soft tissue injuries which at most, in my view, caused aggravations of longstanding underlying conditions. The evidence demonstrates they were of brief duration.
This conclusion is essentially one of little injury lasting for a little time. Her Honour found that the wrongful imprisonment had been for a period of 25 minutes.
In respect of the battery her Honour found that the assault had been “brief” but, again, “humiliating”. Consistent with her findings on injury her Honour found, at [588], that the assault “caused a relatively brief aggravation of long-standing conditions”.
The assault had been constituted by “an accidental trip and a deliberate push”. When combined with the limited nature of the assessed injuries flowing from the assault, there seems little scope for any complaint.
Although the grounds of appeal are wider, the appellant’s submissions only complain about the amount awarded for false imprisonment and the absence of any exemplary damages. The submissions conclude:
It is submitted that the damages awarded in relation to false imprisonment, namely $10,000, ought to be amended and increased to take into consideration the Appellant’s mental shock and loss of social status following the incident. In addition, exemplary damages ought to be awarded in favour of the Appellant.
The appellant submitted that the primary judge did not consider mental shock in the award and ignored a history that the appellant was a regular at the club, was a well-known chiropractor and had treated many local Canberrans through his career.
The primary judge summarised a number of cases in which there had been awards of damages for false imprisonment. Despite this analysis, her ultimate reasons for awarding $10,000 were brief. At [586] her Honour stated:
In accordance with my factual findings at [477]-[488], I find that the period of unlawful detention of the plaintiff was until the police arrived at 12:25am. This was a period of 25 minutes. I find that the false imprisonment would have been humiliating for the plaintiff in such a setting. Taking into account the authorities outlined above, an award of $10,000 is in my view an appropriate amount for the false imprisonment.
Although her Honour had referred to a number of authorities, they dealt with disparate fact situations and it is not apparent what her Honour drew from them. Based on the paragraph just quoted the award of $10,000 seems to stem from the limited period of imprisonment (25 minutes) and the appellant having been humiliated. There is no mention of mental suffering or loss of social status.
Being humiliated might include a loss of social status continuing after an event. It is more likely, however, that her Honour’s reference to humiliation extends only to the event which occurred in the presence of other patrons.
The respondent submitted that there had been a specific finding of an absence of psychological injury, and referred to [490(i)] of the reasons:
Psychological injury – This Court is entirely dependent on accepting the plaintiff has told the truth about his memory and concentration difficulties. As discussed earlier in relation to credibility, the plaintiff is an unreliable witness. In my view, there is no objective evidence supporting this claim.
The difficulty with this finding is that it seems to be limited to memory and concentration difficulties. Psychological injuries can, and usually do, extend far beyond memory and concentration difficulties.
Dr Smith, in his report of 7 February 2018, had been of the opinion that the appellant had suffered depression, in particular stemming from the Bunnings and Eastlake incidents.
Dr Smith was cross-examined, and he did make a number of concessions. He accepted that the appellant had suffered depressive symptoms earlier than 2012 and that there was a continuing history, sometimes gleaned from other medical reports, of depression.
Dr Smith said one of the factors causing him to attribute significance to the Eastlake incident was that he had been given a history, by the appellant, that he had stopped working after this incident. He accepted that the appellant continuing to work after the incident was inconsistent with the history he had been given. He also conceded the relevance of there being no complaints to a frequently visited general practitioner about depressive symptoms.
Dr Smith was taken to a report of a Mr Nomchong, a psychologist, who had taken a history from the appellant that he had not suffered a “significant psychological injury”. Ultimately the cross-examination of Dr Smith by counsel for Eastlake came down to this:
Q.So, doctor, when it comes, then, back to your opinion that there was a significant part played by the Eastlake event in the face of the matters I have taken you through, do you adhere to that opinion?---
A.Well, there's certainly -there are factors that I would have to consider that I haven't been aware of, but if - my conclusion was based on the history that he provided, and if that was true, that he had suffered from psychological distress associated with that incident and also a worsening of pain as you suggested by Mr Nomchong, those features would impact on his depressive condition. So, it would be consistent with being a contributing factor. (Transcript page 1315.33)
The effect of the cross-examination was certainly to lessen the strength of Dr Smith’s original opinion concerning depressive symptoms having been significantly caused by the incident. But it did not extinguish his opinion, the incident remaining at least a “contributing factor”.
The appellant said he had been distressed during the incident (Transcript page 87.45) and that his “anxiety internalised and basically chewed me up from the inside”. The “chewing up” was still in existence when he gave evidence (Transcript page 100.40).
The primary judge does not seem to have given any credence to even some element of depressive symptoms being attributable to the Eastlake incident. This would seem to be because her Honour rejected the appellant’s evidence as being unreliable. This would include any assertions he made about his psychological state and any continuing distress or anxiety that he was suffering.
Once again, the absence of any appeal against credibility findings blunts the force of the appellant’s submissions and means that any reservations about the primary judge’s reasons on this point can be put to one side.
It must also be acknowledged that if Dr Smith’s opinion about the Eastlake incident playing some part in the depressive symptoms had been factored into damages, the award of $10,000 would nevertheless have remained within an acceptable range. Any evidence of the appellant’s loss of social status was defeated by the credibility findings.
Turning now to the primary judge not awarding any exemplary damages. Her Honour, at [599], reached this conclusion about damages not going beyond general damages:
Again, taking into account my factual findings in relation to misunderstanding and accident, in my view, an additional award of exemplary damages is not warranted in this case.
If there was a misunderstanding, then there had not been “a contumelious disregard of the appellant’s rights”. Her Honour had concluded, at [487]:
In summary in relation to false imprisonment, the defendant intentionally caused the total restraint of the plaintiff’s liberty, and the restraint of the plaintiff’s liberty was not lawfully justified. I further note in respect of the false imprisonment that the belief on the part of Eastlake that the plaintiff had wrongly obtained money from Eastlake when he was detained was not reasonably held.
At first sight, it is difficult to reconcile a finding of a misunderstanding with a conclusion that “the defendant intentionally caused the total restraint of the plaintiff’s liberty”.
The source of the finding of a misunderstanding seems to be in the “confusion” referred to at [478] and [479] (emphasis added):
478.Nevertheless, I accept that there was confusion on the part of Mr McArthur who did not understand that the money was in fact the plaintiff’s money until the police confirmed that fact. Mr McArthur gave evidence that he did not ask Ms Crowe whether the money belonged to the plaintiff. He did not of course need to wait for the police to arrive to ascertain that fact. That fact was ascertainable from his staff member, Ms Crowe, as stated above. I accept Ms Crowe’s evidence on this point, in preference to Mr McArthur’s evidence on this point.
479.In summary on this point, in my view Ms Crowe told Mr McArthur the money belonged to the plaintiff. It is also clear that Mr McArthur was unhappy with the plaintiff’s attitude concerning the $400 worth of coins (T 1139-1140). I accept that these two issues – the $400 worth of coins and the consequent refusal to return the $300 in cash – unhappily coalesced and caused confusion on the night in question.
The reasoning seems to be that if the actions of the staff at Eastlake was generated by confusion, then there was an absence of the disregard for the appellant’s rights as required for the awarding of exemplary damages.
It is unfortunate that her Honour did not specifically state that the misunderstanding was synonymous with the confusion. Nevertheless, it is a conclusion open on the reasons and should not be disregarded simply because it might have been better expressed.
It follows that the requirements for exemplary damages were not established, or found, by her Honour. In turn there can be no criticism of a failure to award exemplary damages.
The appeal in respect of this incident must therefore be dismissed.
MVA 2
This motor accident occurred on 31 August 2015 on Masson Street in Turner, a suburb of Canberra. The appellant’s vehicle was stationary in a parked position. The appellant was sitting in his stationary vehicle. Mr Cain’s vehicle struck the rear of the appellant’s vehicle.
The respondents admitted that a duty of care was owed to the appellant and that the duty had been breached. But, said the respondents, the breach of duty had not caused any injury. The accident was so slight that no injury could have occurred. Mr Cain, the negligent driver, gave evidence that he was parking behind the appellant and, in his manoeuvres, collided slightly with the towbar fitted to the appellant’s vehicle. Damage was limited to a small dent to Mr Cain’s registration plate.
The appellant did not assert a significant collision but certainly one sufficient to cause him pain, headaches and double vision.
Mr Cain was one of the three lay witnesses whose evidence contributed to the primary judge’s conclusion that the appellant was not a reliable witness. Flowing from this conclusion her Honour, from [654], found as follows:
654. As discussed above at [73]-[81], in my view the plaintiff is an unreliable witness. In this specific instance, I prefer the evidence of Mr Cain. As a consequence, in my view, the plaintiff’s account about the circumstances of this accident and the injuries said to arise from this particular accident are unreliable and lack credibility.
655.In assessing whether the plaintiff suffered injury and in assessing what disabilities flow from the accident, I make the following findings:
(a)There was a minimal and insignificant degree of contact between Mr Cain’s vehicle and the plaintiff’s vehicle while Mr Cain proceeded carefully while parking.
(b) The plaintiff’s vehicle was not “jolted forward” (T 1128.22).
(c)The plaintiff did alight from his vehicle and inspect the insignificant damage with Mr Cain.
(d)Mr Cain spoke to the plaintiff on only one occasion. Mr Cain did not speak to the plaintiff when Mr Cain subsequently returned to his vehicle.
(e) The plaintiff did not suffer injuries arising from this accident.
656.I am not satisfied on the balance of probabilities that the plaintiff suffered injuries arising from this accident.
Having made the above findings the primary judge went on to enter a verdict for the respondents because she had not been satisfied that the appellant had suffered any loss that had been caused by the accident.
The basis for the appeal is a complaint about the finding that the accident had not caused any injury to the appellant. The injury asserted in the appeal is a change in the condition of diplopia from which the appellant suffered.
Yet again, the absence of any challenge to the credibility findings made by her Honour must lead to the defeat of the appeal. When combined with the findings set out above as to the very minor nature of the collision, the ultimate finding of no injury can be plainly understood.
As pointed out by the respondents, the clinical notes from the appellant’s general practitioner do not support any history being given of a change in the appellant’s diplopia. The appellant relied on the opinion of Dr Delaney, an eye specialist, who had provided an opinion supporting the involvement of the motor vehicle accident in the worsening of the diplopia.
However, under cross-examination it became clear that Dr Delaney’s opinion had flowed from an assumption that the accident had caused a “whiplash type injury”. This exchange occurred, at Transcript page 1595.15:
Q.If you assume a coming together of two vehicles of that sort and an edging forward of the vehicle behind until some small amount of resistance was felt, that is not the sort of injury, firstly, that would result in the whiplash type injury that you have assumed, is it?
A. No, it would not.
Q.If the accident happened in that fashion, it would be, I want to suggest to you, impossible for a fourth cranial nerve palsy to result, would you agree?
A. Virtually impossible, yes.
This appeal also attacks the order made by her Honour as part of the costs judgment awarding a fixed amount of costs in the sum of $60,000.
The costs judgment resulted from an application by the defendants in the proceeding that arose from MVA 1 and MVA 2: Ms O’Halloran, Mr Cain and their insurer (Insurance Australia Limited). As to MVA 1 (as noted above) her Honour awarded costs of $2,500 to the defendants even though Mr Ryan had succeeded in obtaining judgment and a small sum in damages. That order was not attacked in the appeal. As to MVA 2, her Honour awarded costs in a fixed sum of $60,000 to the defendants. Her Honour also ordered that the damages awarded to Mr Ryan for MVA 1 ($11,190) be set off against the total amount of $62,500 in costs that had been awarded to the defendants in the two matters.
The Second Amended Notice of Appeal (filed, for some reason, only in the appeal relating to MVA 1) took issue with the costs award of $60,000 relating to MVA 2 and the order for set-off. However, no submissions were advanced on the latter issue.
As to the award of a fixed sum of $60,000 by way of costs in relation to MVA 2, the parties’ submissions appear to have been somewhat distracted by her Honour’s reference in the costs judgment to offers that the respondents had made on 11 July 2018: one styled as a Calderbank offer and the other an offer of compromise pursuant to Part 2.10 of the Court Procedures Rules 2006 (ACT) (the Rules). As her Honour said at [27], those offers were not relied upon to seek to vary the order that had already been made (that Mr Ryan pay the respondents’ costs). Indemnity costs were not sought (see at [31]) and it seems very unlikely that the amount of $60,000 would come anywhere near the respondents’ total costs arising from MVA 2 (noting that Insurance Australia had assessed its costs arising from MVA 1 alone at $196,665.42: at [39]).
In relation to MVA 2, the respondents had been completely successful and were prima facie entitled to recover their costs. All that her Honour did in the costs judgment was to decide the amount of costs to be paid rather than leaving those costs to be assessed. That was clearly a course available to the Court under r 1720 of the Rules. Nothing has been put before us to suggest that the amount fixed by her Honour was excessive. Indeed, it was considerably less than the sum sought by Insurance Australia (which, as noted above, had not been put forward as representing its costs on an indemnity basis).
MVA 3
This accident occurred on 25 January 2018 at the same roundabout that had been involved in MVA 1. On this occasion the appellant was waiting to enter the roundabout when another vehicle collided with the rear of his vehicle.
Breach of duty of care was admitted but damage was denied. The primary judge accepted the denial and once again entered a verdict for the respondents.
The appeal attacks her Honour’s findings on causation. The written submissions conclude as follows:
It is submitted her Honour was wrong in the findings of the causation. There is a causal connection, in law and in fact, between the motor vehicle accident, the change of diplopia from vertical to horizontal, and the Appellant’s fall off a ladder. Accordingly, her Honour ought to have assessed damages.
The fall mentioned in the appellant’s written submissions was a fall from a ladder on 8 February 2018 which he attributed to a deterioration in his vision following the motor vehicle accident. The appellant claimed that the injuries suffered in the fall should be factored into the damages arising from MVA 3.
The respondents relied on the expert evidence of a biomechanical engineer, Dr Gibson. According to this expert the minimal damage that occurred in the accident suggested that the velocity of the respondents’ vehicle, at the time of the collision, did not exceed 8 km/hr. Consequently, said Dr Gibson, the extensive injury alleged by the appellant to have arisen from this accident was unlikely to have occurred.
The primary judge noted, but then seems to have ignored, that Dr Gibson conceded that he was not a medical doctor and that he would defer to medical opinion in regard to the aggravation of pre-existing injuries.
Her Honour’s ultimate conclusions on liability commence at [720]:
720.As discussed above at [73]-[81], in my view the plaintiff lacks credibility and is an unreliable witness. I am not satisfied on the balance of probabilities that the plaintiff suffered concussion as a result of this accident. I accept the submission of the GIO defendants that concussion is not supported by the preponderance of the evidence, including the following:
(a) the accident was a low speed collision (T 825.9-10);
(b)the plaintiff was wearing a seatbelt and there was no head strike (T 825.17-19);
(c) police reported little to no damage to both vehicles (T 825.34-36); and
(d)Dr Gibson, a biomechanical engineer, opined that the force of the accident was not sufficient to cause the level of injury claimed. This was after adjusting his opinion as to the likely change of velocity from below 4km per hour to 4km-8km per hour. His opinion remained that the force of the accident was insufficient to cause the claimed level of injury (Supplement to Exhibit 5).
721. I find Dr Gibson’s evidence persuasive, and I accept his evidence.
722.I am further not satisfied on the balance of probabilities that the plaintiff has proved a causal connection between MVA 3 and the February Fall. In this regard, I again accept the submissions of the GIO defendants. Such causation is not established on the evidence, including the following conflicting evidence:
(a)the plaintiff gave evidence that “upper left side diplopia” had “always been there” since 2006 (T 194.31); and
(b)the plaintiff gave evidence that the blotching in his vision caused by longstanding upward gaze also caused him to become dizzy and disoriented. He experienced symptoms from 2006 to 2018 (T 800-801).
723.I am not satisfied on the balance of probabilities that the plaintiff suffered any injury arising from this accident.
If Dr Gibson conceded that he would defer to medical opinion in respect of the exacerbation or aggravation of the appellant’s assorted medical conditions then it is difficult to see how her Honour could rely on his opinion as the central part of her conclusion that there had been no injury in the accident. The other factors (low speed, the appellant wearing a seatbelt and minimal damage to the vehicles) indicate that significant injury would be unlikely but do not of themselves preclude any injury.
Notably her Honour, in setting out the primary considerations behind her conclusion, did not refer to any other expert opinion besides that of Dr Gibson. Her Honour had analysed the medical evidence (from [684]) which, generally speaking, indicated a view consistent with whether the expert had been retained by the appellant or the respondents.
It is necessary to look at the concessions made by Dr Gibson under cross-examination:
Q.So as for this particular event with respect to this particular individual, you need to, don't you, defer to medical opinion as to causation of any injury?
A.The driver of the vehicle that was impacted from the rear has got a very large list of pre-existing conditions and I am - I guess I would have to say as a biomechanical engineer it becomes difficult to know what such pre-existing injuries do to the capability of a person in dealing with this sort of an impact. So the answer is yes, I guess.
Q.And what the later - what the photographs which have recently become available and which you've seen demonstrate, don't they, that the damage to the plaintiff's car was greater than that upon which you assumed and based your opinion originally, correct?
A. Yes.
Q.And you've said that the - you've doubled the impact speed based upon the damage that you've observed, correct?
A.Yes, I moved it from - because no damage is pretty much - we usually say is 4 kilometres an hour, and that's because there's actually regulated strength for the vehicle that tends to mean that vehicles are designed so there's very limited damage below that. And in this case when I look at the damage and compare it to other crash vehicles, I moved that up to a - rather than below 4 to 4 to 8 as the actual speed change of the impacted vehicle in this collision.
(Transcript page 1216)
There is clearly a gap between Dr Gibson’s acceptance that he should defer to medical evidence in respect of any aggravation of pre-existing injuries and her Honour’s conclusion that he had “opined that the force of the accident was not sufficient to cause the level of injury claimed”.
Dr Gibson was making it clear that he simply could not say whether or not there had been an exacerbation or aggravation of pre-existing injuries. But the primary judge made a step to the conclusion that the appellant had not suffered any injuries at all.
The appellant again relied on the opinion of Dr Delaney to establish a change in the appellant’s diplopia which in turn resulted in the fall from the ladder. But again the cross-examination of Dr Delaney significantly weakened his original opinion as expressed in his reports. For example, there is this passage of cross-examination concerning a head injury suffered by the appellant about a month before the motor vehicle accident:
Q.Mr Ryan did not tell you that he suffered a blow to the head on 30 December 2017, less than one month before the January 2018 motor vehicle accident, did he?
A. Well I have no - nothing in my notes about that, no.
Q.Well, and again it would be something relevant that if you were told you would have recorded, wouldn't you?
A. I would have, yes.
Q.Yes, and I want you to assume that on that occasion, on 30 December 2017, so, again, less than one month before the motor vehicle accident, the blow was a strike from the door of a bus, that it left an indent and laceration in the head, that it caused left arm and shoulder shooting pains and that it caused pain when he coughed. That description I have - or those symptoms I have described to you, you would agree, would be the result of a significant blow, wouldn't you(sic)?
A. It's a - it is a significant event, yes.
Q.That blow, you have said before, that even a moderate or minor blow could cause a change in diplopia, that significant blow could certainly have caused the change in his diplopia, couldn't it?
A. It could have, yes.
Q.Yes, and, in fact, if you had been given a history of that account on 18 October 2018, again, you would not have been able to attribute the change in diplopia to either the motor vehicle accident or that strike to the head on 30 December 2017, could you?
A.I couldn't - you - that would be very, very difficult to apportion it. I would have said that it could have been caused by either or a combination of the two events.
Q.To make a determination you may have needed to question Mr Ryan further but he did not tell you, did he?
A.No, he - I have no recollection of it and nor do I have any notation and the notes for the court are fairly comprehensive, more than - I took more than average detail down during the course of the two consultations with Mr Ryan.
Q.Dr Delaney, Mr Ryan also did not tell you that by 2017 he was so afraid of falling that he was limited in his ability to exercise, did he?
A. I have no records of that in my notes, no.
Q.Again, given you were writing a report and being asked to draw a link between an accident and the reason for somebody having fallen, that would be something relevant and that you would have recorded, wouldn't you?
A. It certainly would have been.
Therefore, also in respect of this accident, the medical expert was faced with having to make concessions because of a different history being put to the expert. When the concessions are combined with the unchallenged unreliability of the appellant as to the history he gave to the expert, the value of any remaining opinion is significantly diminished.
The error made by her Honour in considering that Dr Gibson had given a conclusive opinion has no consequence because the medical opinion, to which he agreed he had to defer, provided no basis for a finding that the accident had caused any injury.
The appeal in respect of this accident must therefore be dismissed.
Final orders
(a)Each of the appeals is dismissed.
(b)Each of the appeals on costs is dismissed.
(c)The appellant is to pay the costs of each appeal.
| I certify that the preceding one hundred and thirty-two [132] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Kennett and Justice Stewart. Associate: Date: |
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