Simonds v Forden

[1992] QCA 212

IN THE COURT OF APPEAL

[1992] QCA 212

SUPREME COURT OF QUEENSLAND

Appeal No. 28 of 1992

WINIFRED ANNE SIMONDS

(Plaintiff) Respondent

- and -

CHRISTOPHER JOHN FORDEN

(Defendant) Appellant

JUDGMENT THE COURT

Delivered the 14th day of July 1992

The hearing of Miss Simonds' action for damages arising out of a motor vehicle accident on 22 February 1986 began in Townsville on 4th February 1991. Both the issue of

liability and the issue of damages were tried. Two
orthopaedic surgeons, a consultant in rehabilitation
medicine, and Dr Watson, a consultant in rehabilitation
medicine specialising in musculo-skeletal and spinal pain,
gave evidence. While they spoke of a physical disability,
there was also a strong hint of what is sometimes called

functional factors.

The trial was adjourned to 5 February 1991 and then

again to 28th January 1992. On that day, two further
reports from Dr. Watson were tendered, as was a report from
Dr. Richards, psychiatrist. Dr. Watson was cross-examined.

Miss Simonds did not give any additional evidence. From Dr. Watson's evidence it emerged that, on 7th March 1991, Miss Simonds was involved in another motor vehicle incident.

She suffered neck injuries, and, in Dr. Watson's opinion,

those injuries made her unfit for work.

The trial judge, Kneipp J., delivered judgment on

19th February 1992. He reviewed the evidence given on 4th
and 5th February 1991 in great detail. The possibility of
some functional problem had been removed by Dr. Richard's
report. The essential issue had become the question whether
the plaintiff's lower back disability from the first action

prevented her from working.

After a detailed review of the evidence given on 4th

and 5th February 1991, His Honour said:-

"I accept the evidence of the plaintiff which is
relevant to those issues. I am satisfied that she
did not have any pre-accident symptoms relating to
any problem in the lumbar spine but that there
were in fact existing degenerative changes
present. The type of accident is of course one
which frequently produces injuries of the type in
question. I accept the plaintiff's evidence that
she did have pain immediately after the accident,
that it increased over the years and that it
continues to the present time. I find that the
plaintiff does suffer from the problems of which
she complains and that these are to be causally
connected with the accident which occurred in
February 1986. I am satisfied that she suffers
the losses of amenities of which she complains and
that, given her age and background she is, for all
practical purposes, unemployable. I accept the
opinions of those experts who support those

views."

(emphasis added)

His Honour then went on to refer to the second injury

and to note that it also resulted in Miss Simonds becoming
unemployable. He referred to Baker v. Willoughby (1970)
A.C. 467. He discussed some of the problems caused by a
second accident which subsumes the effect of the first
injury, using the example of a first accident which only
partially incapacitates a plaintiff followed by a second
accident which causes total incapacity. He then proceeded
to assess damages against the defendant as though the second
accident had not happened.

The defendant appealed, contending only that the award

for past and future loss of earning capacity should be
reviewed. The essence of the submission was that, as the
second accident had made Miss Simonds unemployable, the
effect of the defendant's negligence came to an end, so far
as earning capacity was concerned, when that accident took

place on 7th March 1991.

The starting point for this argument was the phrase

which has been quoted,

"She is for all practical purposes, unemployable."

It was submitted that this meant only that, as at the

date of judgment, 19th February 1992, Miss Simonds was
unemployable. It was argued that this condition was brought
about by the second accident. Reference was made to the
fact that Miss Simonds had worked after the first accident,
from which it was asserted that the first accident had not
rendered her unable to work. Since she could not work at
the time of judgment, it was asserted that incapacity must

have been caused by the second accident.

The fallacy in this argument is that it assumes that,

because Miss Simonds had worked for a period after the first
accident, it follows that the first accident had not
rendered her incapable of employment by February, 1991 when
the trial began. An examination of the whole judgment and of
the evidence shows that this contention is not sustainable.

Miss Simond's evidence, given on 4 and 5 February 1991, was

that she could not engage in remunerative employment. She

said:

"I now undertake voluntary counselling for
Lifeline approximately once per fortnight for two
and a half hours or overnight. I underwent a
training course to become a telephone counsellor.

I find that I can cope with this because I can

work at my own pace and I can get up and move
around as often as I like. I once attempted to do
three sessions of about two and a half hours each
session over three days. However, it was
extremely painful and I found that after the third
session I could not go on any longer." (exhibit
1)

This evidence, if accepted, showed that she could not

work, in any useful sense, because of pain. Once this is
seen, it seems that, in the passage quoted from the
judgment, Kneipp J. is referring only to the disabilities

arising from the lumbar injury caused by the first accident.

This issue was one which was not easy to resolve, but the

resolution was made by the trial judge, who accepted Miss
Simonds' evidence. He reviewed all the relevant evidence,
and took account of the conduct of the trial. Particularly,
he noted that it had not been suggested to Miss Simonds that
she was malingering. It is true that, in his discussion of
Baker v. Willoughby, reference is made to a hypothetical
case in which the first accident caused only partial, not
total, incapacity, but this is insufficient to give rise to
an inference that his Honour considered that this is such a
case.

It follows then that before the second accident, the

appellant had destroyed Miss Simonds' economic capacity. In those circumstances there is no reason to have regard to the second injury. The assessment was correctly made.

The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 28 of 1992
Before the Court of Appeal
The President Mr. Justice McPherson Mr. Justice Demack

WINIFRED ANNE SIMONDS

(Plaintiff) Respondent

- and -

CHRISTOPHER JOHN FORDEN

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 14th day of July, 1992

MINUTE OF ORDER:	Appeal dismissed with costs.
CATCHWORDS:
Counsel:	Mr R.R. Douglas Q.C. with him Dr. Jensen for the appellant
Mr R.V. Hansen Q.C. with him Mr M. Drew for the respondent
Solicitors:	Messrs. McInnes, Wilson and Jensen for the appellant
Messrs. Thompson, King and Connolly for the respondent

Hearing Date: 17th June, 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No. 28 of 1992

WINIFRED ANNE SIMONDS

(Plaintiff) Respondent

- and -

CHRISTOPHER JOHN FORDEN

(Defendant) Appellant

The President
Mr Justice McPherson

Mr Justice Demack

Judgment of the Court delivered the 14th

day of July, 1992

Appeal dismissed with costs.