Simon v Nursing Staff Pty Ltd and NCA (Annerley) Pty Ltd

[1997] QCA 189

IN THE COURT OF APPEAL	[1997] QCA 189
SUPREME COURT OF QUEENSLAND

Appeal No.1 of 1995a

Brisbane

Before McPherson J.A.
Thomas J.
Lee J.

[Simon v. Nursing Staff P/L. & Anor.]

BETWEEN:

AYSE IMREN SIMON

(Plaintiff) Appellant

AND:

NURSING STAFF PTY. LTD.

(First Defendant) First Respondent

AND:

NCA (ANNERLEY) PTY. LTD.

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 June 1997

This is an appeal by the plaintiff against a judgment given in the Supreme Court on 2 December

1994 in an action brought against her employer for injuries sustained by her in a workplace accident on

9 May 1983. At that time she was working as a nursing assistant at the defendants’ nursing home when

she slipped on the wet tiled floor of the drying area where she was attempting to lift the paralysed leg

of a heavy patient whom she was drying after showering her.

While not accepting all of the plaintiff’s evidence about the incident and its cause, the learned

trial judge, who was Derrington J., found that the tiled floor tended to permit some ponding of water;

that the water (which may have been slightly soapy) collected to an extent that made the floor more

slippery than usual; that, although the condition of the floor would not normally have presented a hazard

to nurses wearing the kind of footwear they did, it nevertheless placed the plaintiff at some risk in the

particular lifting activity in which she was engaging at the time; and that the defendant was negligent in

permitting that state of affairs to develop, and so was wholly responsible for the injuries sustained by

the plaintiff.

There is no cross-appeal by the defendant against these findings, and it follows that liability is not an issue on this appeal. The plaintiff’s challenge to the judgment in her favour is confined to what is said to be the insufficiency of the amount of damages awarded. As to that the assessment was as follows:

1.          Pain, suffering, loss of amenities

(a) past $15,000.00

Interest 2,000.00

(b) future 5,000.00 $22,000.00

2.          Economic loss

(a) past $15,000.00

(b) future 5,000.00 20,000.00

3.          Voluntary assistance

(Griffiths v. Kerkemeyer) 1,500.00
4.	Fox v. Wood component 6,897.47
5.	Special damages 8,547.17 $58,944.64

The plaintiff received workers’ compensation payments for the injury totalling in all $56,626.13, which

explains why interest is not allowed on some of the items. Deducting that amount from the damages total of $58,944.64 left $2,318.31, for which judgment was entered in favour of the plaintiff. The

appeal is directed to the inadequacy of that amount.

Before considering that matter, it is necessary to mention some aspects of the way in which the

appeal and trial were conducted. The plaintiff originally instructed solicitors to act for her in the action.

At some time before the trial, she terminated her instructions to them, which left her without professional

representation for the trial. She is Turkish in origin and, although fluent in her native tongue and in

German, her command of English is said to be imperfect. Accordingly, at the trial, the learned trial judge

permitted Mr K. von Schulz to appear on behalf of the plaintiff. Mr von Schulz and the plaintiff were

married shortly after the accident in 1983, but have since divorced. He is not legally trained, but is a

competent speaker of English who is readily understood.

The arrangement by which he represented the plaintiff, although perhaps the best that could be

adopted in the circumstances, was not a complete success. When the appeal was instituted, Mr von

Schulz again obtained leave of this Court to represent the plaintiff. Because of his lack of legal

experience, his doing so presented difficulties in ensuring that the appeal was properly prepared for

hearing in this Court in accordance with the relevant rules and directions regulating appeals. In

consequence, the defendant has on two or more occasions applied to strike out the appeal for failure

on the part of the plaintiff to comply with those requirements. Influenced to some extent perhaps by

sympathy for her quandary, the Court did not accede to those applications, but persisted in trying to

ensure that the appeal requirements were satisfied. In the end, however, it became evident that the only

option available was to set the appeal down for hearing.

The appeal was heard on 6 May 1997. At the hearing, Mr von Schulz was again permitted to represent the plaintiff, or appellant as she now is. She was present in Court and plainly consented to his doing so. Paragraph 2F of the notice of appeal dated 3 January 1995 described her as “mentally

and physically very ill”, and “a mental sick person”. Such a condition, if it in fact existed at the time of

the appeal hearing, might have had serious consequences for the plaintiff’s ability to give instructions.

Litigation associated with the name McLaughlin, which was prominent in the early days of the High

Court, is testimony to the difficulties that arise in proceedings conducted in such circumstances.

However, the allegation in para.2F appears to have been rather in the nature of a forensic flourish. Mr

von Schulz assured us at the hearing that the plaintiff was not intellectually impaired and, from what we

saw of the plaintiff herself and from what she said on the appeal, there seems little reason to doubt her

mental competence to pursue the appeal in the way she did. It may, however, afford a reason for being

less indulgent in future in allowing persons not admitted to practise to appear in the role of advocates

before the Court. If they turn out to have no proper authority, it is likely to be the opposing party who

suffers as a result.

That having been said, it is possible to return to the substance of the appeal. The essential

reason why the damages were low is that the trial judge did not accept much of the evidence given by

the plaintiff and her witnesses, while he did accept the evidence of a number of medical experts called

for the defence, including her general practitioner, some of whom examined the plaintiff soon after the

accident in 1983. Contrary to her testimony and that of at least one of her children, his Honour found

that she had not suffered disabling injury or pain for very long after the incident in question; and, further,

that in the opinion of several of the orthopaedic specialists, at the time she suffered the injury complained

of, she already had to a marked degree a pre-existing degenerative condition of the lumbar spine, to

which the injury in 1983 contributed little by way of aggravation.

As to the plaintiff herself, his Honour considered she had been “very dishonest” in her evidence

on many features of her case; that it was “very difficult to accept any of her evidence and her complaints

unless there has been acceptable corroboration, or some other good reason for doing so”; that “there

has been deliberate gross exaggeration and misrepresentation by her as to her general state”; and that

she had “engaged in direct deceit” and had been “very untruthful” in what she had said.

It is necessary to pause to recall what it was sought to communicate to the plaintiff and her

representative in the course of the hearing. It is that, under our legal system, an appeal court is confined

to considering the evidence taken in the court below. It does not, except in special circumstances, admit

fresh evidence on appeal (for which no application was made in this instance), but determines it on the

existing material in the record of proceedings from the trial. It follows that, because the Court on appeal

does not have the advantage enjoyed by the trial judge of seeing and hearing the witnesses give their

evidence, it is difficult for this Court to disagree with the judge’s findings on matters of credibility, or to

substitute findings of its own on such matters. See De Vries v. Australian National Railways

Commission (1993) 177 C.L.R. 472. See also Abalos v. Australian Postal Commission (1990)

171 C.L.R. 167, 178-179, which shows that a similar principle applies to the case of evidence of an

expert which has been rejected at trial.

As the judgments in those decisions demonstrate, the principle referred to is not unqualified.

There are certain well-known categories of case in which an appeal court will set aside a credibility

finding made at trial. Many of them are identified, although not exhaustively, in R. v. Free [1983] 2

Qd.R. 183, at 190-191. However, none of the examples given there or others capable of being

identified, have any application to the circumstances of this appeal. In making credibility findings here,

the trial judge is not shown to have misunderstood or disregarded material facts or evidence; he has not misconstrued documentary evidence or exhibits; and his findings are neither obviously nor plainly wrong,

nor are they vitiated by any critical error. In short, there is not only no discernible reason for interfering

with his Honour’s conclusions, but, on the contrary, a substantial body of evidence that objectively

supports the findings he has made.

Apart from bare assertions to the contrary with respect to some of the facts found below, the

substance of the complaint against the fact-and-credibility finding process at the trial is that the judge

was not impartial. The introductory ground or basis for a new trial stated in at least one of the notices

of appeal, and also to some extent in the oral submissions before us, was that the judge was guilty of

racial bias or “discrimination” in his conduct of the trial and in the conclusions he reached. Such

allegations are easily made; but less easily sustained. As an example, we were referred to a passage

in the reasons for judgment in which, after commenting adversely on the evidence of the plaintiff at the

trial, his Honour went on:

“Even after full allowance for ethnic factors, the simple conclusion must be drawn that

she has been very untruthful.”

The plaintiff and her former husband are evidently sensitive, perhaps unduly so, about references to their

ethnicity; but it is really quite clear from the terms of this statement that his Honour was intending to

make a concession in favour of, and not against, the plaintiff. As it is, the learned judge in fact went out

of his way to remind himself, as he did on more than one occasion in his reasons, that his adverse

impression of the plaintiff’s credibility did not mean there was absolutely no substance in the plaintiff’s

complaint of injury and pain. However, its effect, as his Honour recognised, was to make the task of

disentangling fact from falsehood so much more difficult. He nevertheless persevered to the stage of

finding that, after an original post-accident convalescence of about 15 weeks, the injury suffered by the

plaintiff in 1983 would have contributed little to the increasing degeneration in her lumbar spine. He considered that during those first 15 weeks, the plaintiff would have suffered some, but not severe, pain

accompanied by serious discomfort when she engaged in strenuous activity. He also accepted medical

opinion that, although a number of her complaints were directly attributable to dishonesty, there was also

an element of genuine hysterical overlay, “so she really feels exaggerated pain”, which was something

he allowed for in compensating her. Although it was very probable that the plaintiff did have back

problems which were moderately painful from time to time, and that her condition was magnified by

genuine hysteria, her tendency to exaggeration and misrepresentation made it difficult to assess the true

extent of the disability brought about by the accident in 1983. Doing the best he could, the learned

judge arrived at the assessment set out in these reasons. It has not been demonstrated that the

assessment was wrong, or that, on the principles on which this Court is permitted and bound to act in

such appeals, there is any basis for interfering with it.

The other matter of credibility which it is necessary to mention specifically concerns his

Honour’s rejection of the evidence of Dr Guirgis, who is an orthopaedic specialist from New South

Wales, who was first consulted by the plaintiff in February 1984, and who has been treating her since

then. In his opinion, at the date of the trial, she was suffering chronic pain syndrome, of which a

component was the aggravation by the accident of 1983 of a pre-existing lower back disc condition.

He agreed that, before she suffered the injury to her back on that occasion, her back was degenerating,

but considered that she had not been previously disabled by it to any “significant” degree.

The learned judge gave two reasons for rejecting the opinion of Dr Guirgis. One was that Dr

Guirgis had, throughout his treatment of the plaintiff, accepted and acted unquestioningly upon her

statements about her condition. He said in evidence that he had not been aware when he saw her in

1986 that she was (as she admitted in evidence at the trial) engaging in heavy work, nor that she had been doing lifting and other such work as a nursing assistant at three different nursing homes at times

from 1987 to 1990 when he was issuing her with certificates for workers’ compensation purposes. He

was “astonished” to learn that on 24 February 1994 she was still working for various nursing homes

when in and after 1990 he provided her with invalid pension certificates. He offered the explanation that

she must have been using pain killing drugs or analgesics to enable her to continue in such employment.

As to the pre-accident degenerative condition of the plaintiff’s back, Dr Guirgis declined to

accept that the radiological evidence demonstrated the existence of such a condition to any marked

degree. There was, he considered, no indication of actual osteophytes in x-ray photographs taken soon

after the injury in 1983. On this matter, his opinion was in direct conflict with that of Dr Maguire, who

had seen the plaintiff within two weeks after the injury and concluded that it was not serious; with that

of Dr Boys, who had also seen her soon after the event, and considered her injury to be mild and

temporary; and with Dr Anderson, whose opinion it was that the plaintiff’s back condition contributed

about 10% to her problems, of which only about half of that percentage was attributable to the injury

and the remainder to other causes. In the result, his Honour, as he was entitled to, preferred the

opinions of those experts to that of Dr Guirgis.

It remains to say something of the sum of $1,500 awarded to the plaintiff for gratuitous services

provided by her husband Mr von Schulz and her children during the period of her disability. This, Mr

von Schulz submitted, was a ridiculously low amount. Not only had he as a husband lost the benefit of

the plaintiff’s services but he had been bound to help her during the period of her disability, and had

continued to do so as a matter of natural obligation even after they were divorced. As a result he had

lost two valuable businesses, one worth $198,000 and the other $404,000, for which adequate

compensation was due to him. As to that, it is enough to say that Mr von Schulz was not a party to the action or entitled to recover for those losses. Even if he had been, the quantum of his loss would have

been confined to the comparatively brief period of 15 weeks during which his Honour found the plaintiff

to have been suffering some, but not severe, pain and discomfort. Given that finding, the amount

allowed for gratuitous services was reasonable.

There is in this appeal no basis on which a new trial could be ordered or damages re-assessed

so as to increase the amount awarded to the plaintiff. The appeal should be dismissed with costs,

including any reserved costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.1 of 1995a

Brisbane

[Simon v. Nursing Staff P/L. & Anor.]

BETWEEN:

AYSE IMREN SIMON

(Plaintiff) Appellant

AND:

NURSING STAFF PTY. LTD.

(First Defendant) First Respondent

AND:

NCA (ANNERLEY) PTY. LTD.

(Second Defendant) Second Respondent

McPherson J.A.
Thomas J.

Lee J.

Judgment delivered 27 June 1997

Judgment of the Court

APPEAL DISMISSED WITH COSTS, INCLUDING ANY RESERVED COSTS.

CATCHWORDS:	PERSONAL INJURY - DAMAGES - Quantum - Appeal against inadequacy - Credibility findings at trial - Whether capable of being altered on appeal - Practice - Allowing unqualified person to represent litigant.
Counsel:	Mr K. von Schulz (not of counsel) for the appellant Mr M. Drysdale for the respondents
Solicitors	No representation

:  Corrs Chambers Westgarth for the respondents

Hearing Date:  6 May 1997