Sice v Jones & Jones

[1997] QCA 492

[1997] QCA 492

COURT OF APPEAL

DAVIES JA DOWSETT J HELMAN J

Appeal No 2934 of 1997

SUSAN SICE	Appellant
and
RONALD JONES	First Respondent
and
WAYNE RONALD JONES	Second Respondent

BRISBANE
..DATE 05/12/97
051297 D.1 T8/MW23 M/T COA286/97
DAVIES JA: The appellant was the plaintiff in an action for
damages for personal injuries caused by the negligence of
the rider of a motorcycle on which she was a pillion
passenger on 24 July 1994. The only issue at trial and
before this Court is the amount of damages to which the
appellant is entitled.
The learned trial Judge awarded $63,890.20 and gave judgment
for that sum. The appellant submits that that amount is too
low.

The appellant is 46 or perhaps now 47 years of age. In the accident she was thrown off the motorcycle and sustained multiple but only minor injuries. She did not lose consciousness, she broke no bones and there were apparently no serious lacerations or contusions. She sustained soft tissue injuries to her neck, head, chest, left knee and backside. The next day she visited her general practitioner complaining of pain in various parts of her body. He referred her to a physiotherapist.

There is a complaint by the appellant that the learned trial Judge incorrectly found that there was no evidence that any analgesics were prescribed whereas, it seems from a receipt which was tendered without objection, that Panadeine Forte was prescribed the day after the accident. However I do not think that this mistake in any way affects the correctness of the assessment of His Honour.

The learned trial Judge found that the appellant returned to
work on 2 August. This was also the subject of complaint by
051297 D.1 T8/MW23 M/T COA286/97
the appellant in her written outline apparently based on
what she told Ms Hargraves, a physiotherapist. However, as
the respondent has pointed out in his outline, the sales
ledger of the appellant records sales by her on 2 and 3
August at various places such as Coolangatta and Tarragindi.

There is therefore in my view no justification in that

complaint.

The main complaint of the appellant before this Court is that according to the submissions of her counsel the learned trial Judge rejected the evidence of a number of medical witnesses called on her behalf and accepted instead the evidence of a medical witness called for the respondent.

However this in my view is to misunderstand the effect of the findings of the learned trial Judge. His essential findings in this respect were that the evidence of the medical witnesses of the appellant was based almost entirely upon what she told them for there were few, if any, objective signs which supported the complaints which she made. And secondly His Honour rejected the evidence of the appellant on the grounds of credibility.

The complaint is therefore really, as I put to Mr Douglas QC (her counsel), that the learned trial Judge ought not to have rejected the evidence of the appellant on grounds of credibility when she had been accepted as a witness of the truth by her doctors, by a physiotherapist and I think also by an occupational therapist.

In my view the learned trial Judge was plainly justified in
051297 D.1 T8/MW23 M/T COA286/97
rejecting the appellant as a witness of truth. On her own
evidence, if accepted, she admitted to defrauding the Income
Tax Commissioner and the Department of Social Security by
understating her income and she asserted in effect that her
employer was a party to this deceit. However the learned
trial Judge rejected her evidence in this respect, it being
uncorroborated, consequently rejecting her self-serving
statement that her income before the accident was higher
than in fact it appeared from her income tax returns.
Whether the learned trial Judge accepted or rejected her
evidence in this respect he was entitled to conclude that
she was not a person of good character and therefore a
person whose evidence he was entitled to reject. In
addition, and perhaps even more importantly, he had the
advantage of seeing and hearing her in the witness box and
of assessing her credibility. And as Mr King-Scott for the
respondent has pointed out to us today there were a number
of respects in her evidence which demonstrated lack of
frankness. Consequently his rejection of her as a witness of
truth cannot be overturned in this Court.

There was a conflict between the orthopaedic specialists, Dr Pentis for the appellant and Dr Martin for the respondent. Dr Pentis thought that the appellant had a five per cent loss of efficient function in her spine and a five per cent loss of efficient function of her left leg. He thought that she should be able to return to light duties and might in the long term be able to return to her previous occupation. Dr Martin thought that the disabling symptoms of which she complained were not compatible with his 051297 D.1 T8/MW23 M/T COA286/97

clinical findings or any radiological findings. He did not think that she could be experiencing the pains or other symptoms of which she complained. He could see no reason why she could not resume her former level of sporting and occupational activity. He disagreed with Dr Pentis' opinion that she had lost any efficient function in her spine. Both doctors gave evidence and were subjected to cross- examination. During the course of his evidence Dr Pentis conceded that his assessment of the appellant and her disabilities depended almost entirely on her subjective complaints, there being no objective clinical or radiological signs. There is no reason in my view why the acceptance by His Honour of Dr Martin in preference to Dr Pentis should be rejected, particularly in view of the concession to which I have referred by Dr Pentis and the finding of credibility which His Honour made against the appellant.

His Honour was prepared to, and did, give the appellant damages for a pain management program recommended by Dr Yaksich, a neurologist, because of evidence by Dr Yaksich that she would be a good candidate for such a course whether in fact her pain was real or, as His Honour seemed to think, imaginary. The prospects of success were said to be good.

That conclusion is consistent with the psychiatric evidence to which I refer but Dr Yaksich, it should be said, upon whose evidence the sum for the pain management course was awarded, also saw no objective signs and there must be some doubt on the findings of the learned trial Judge whether that pain management program was something for which the 051297 D.1 T8/MW23 M/T COA286/97

respondent should have paid. However that is not relevant
to this appeal.

The only other reason why it could be submitted that the appellant might not be able to return to her pre-accident level of work activity appears to arise from her mild to moderate post-traumatic anxiety disorder. However both psychiatrists who gave evidence thought that the appellant, with appropriate treatment, would improve in both her attitude and the psychiatric aspects of returning to the work force and Dr Nothling thought that her psychiatric condition was not preventing her from returning to her previous work situation. It also seems likely from his evidence that the conclusion of litigation will have a beneficial effect in this respect.

The main head of damages which is attacked by the appellant is the loss of earning capacity of the appellant and in particular that future loss of earning capacity. The claim, as Mr Douglas has indicated, was one for $200 a week and His Honour in the end assessed $15,000 as a reasonable sum for loss of future earning capacity. However I do not think that it is appropriate to look at that sum as a weekly sum over the balance of her working life. It is much more likely to have been a sum awarded by the learned trial Judge for an interim period during the course of the pain management program to enable her to return to full employment although it seems from what I have already said that Dr Nothling was inclined to the view that she is presently able from a subjective point of view to return to full employment.

051297 D.1 T8/MW23 M/T COA286/97

In addition to the errors in the judgment which His Honour corrected, there were a number of other criticisms which the appellant made of the judgment and of sums awarded. None of these specific sums would be such that if the criticism were valid would justify success on this appeal under the principles adopted by this Court. But I should mention that one of those which was attacked (the amount awarded for physiotherapy treatment) does not in any event, it seems to me, be one upon which the appellant should have succeeded.

It is true that physiotherapy was prescribed but never of the frequency or extent which the appellant at her own motion undertook and indeed the doctor who prescribed it was surprised when told of the extent to which it had taken place. And it must be said that the amount which His Honour awarded in this respect appears to coincide quite well with the amount which that doctor thought would have been appropriate.

The case of the appellant on the whole, in my view, fails once it is accepted that the learned trial Judge was entitled to reject the plaintiff as a witness of truth and to conclude that the medical opinions in her favour depended almost entirely on accepting her as a witness of truth. In my opinion therefore the appeal should fail and I would dismiss it.

DOWSETT J: I agree.

HELMAN J: I agree.
051297 D.1 T8/MW23 M/T COA286/97

DAVIES JA: The appeal is dismissed.

-----