Skelton v Collins

[1994] QCA 385

IN THE COURT OF APPEAL  [1994] QCA 385

SUPREME COURT OF QUEENSLAND  

No. 22 of 1994

Brisbane

[Skelton v. Collins]

BETWEEN:

JACQUELINE HESTER SKELTON

(Plaintiff)Respondent

AND:

LAURELLE COLLINS

(Defendant)Appellant

McPherson JA
  Davies JA
  Ambrose J

Judgment delivered :   05/10/1994

Judgment of the Court

APPEAL AND CROSS-APPEAL DISMISSED

CATCHWORDS:       CIVIL - NEGLIGENCE - PERSONAL INJURIES - Quantum of damages - conflicting medical evidence - trial Judge found that plaintiff was exaggerating symptoms - it was open to the trial Judge to make the findings of facts and the conclusion decided.

Counsel:R.V. Hanson Q.C. for the Appellant

L. Harrison Q.C. with him A. Westbrook for the Respondent.

Solicitors:Biggs & Biggs Francis & McGregor for the Appellant

W T Purcell, Chadwick & Skelly for the Respondent.

Hearing Date:     9 August 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND 

No. 22 of 1994

Brisbane

[Skelton v. Collins]

Before McPherson JA

Davies JA

Ambrose J

BETWEEN:

JACQUELINE HESTER SKELTON

(Plaintiff)Respondent

AND:

LAURELLE COLLINS

(Defendant)Appellant

JUDGMENT OF THE COURT
Judgment delivered :   05/10/1994
     This is an appeal by the defendant against the quantum of damages awarded to the plaintiff for injuries she suffered in a motor vehicle collision on 25 June 1986.  The defendant contends that the quantum of damages awarded was manifestly excessive having regard to relevant findings of fact made by the trial Judge.
     The plaintiff has cross-appealed contending that the award of damages is manifestly inadequate and contending that some of the findings of fact relied upon by the trial Judge in his assessment of quantum ought not be allowed to stand.
     There is no appeal against the finding that the defendant was wholly responsible for whatever injuries the plaintiff suffered in the motor vehicle collision.  The plaintiff at the time of the collision was the driver of a car which was stationary, or almost stationary, at an intersection.  The defendant driving her motor vehicle towards that intersection, drove into the rear of the motor vehicle being driven by the plaintiff.
     Upon the evidence, the plaintiff suffered what is described as "a whiplash injury" to the neck.  She was taken to hospital on the night of the collision and remained there overnight and was then discharged.
     It was the case for the plaintiff that she suffered a significant injury to her neck from which she had not recovered by date of trial, which commenced on 11 October 1993 - a period in excess of 7 years from date of injury.
     It was the plaintiff's case that as the result of the neck injury she sustained on 25 June 1986, her earning capacity was destroyed.  She could not be gainfully employed because of chronic pain she has suffered, and will in the future suffer, as the result of injury to her cervical facet joints, and pain also suffered as a consequence of the reactions of her "sympathetic nervous system".  The plaintiff's case was that she had lost to date of trial, an earning capacity the equivalent of $200 per week net, and in addition the value as at date of trial of the loss of $200 per week in the future for an unspecified time.  At the time of injury, she was 36 years of age and at time of trial about 44 years. 
     It was the plaintiff's contention also that because of her injury, she needed assistance to perform tasks in and about the house where she resided with her husband.  She advanced a Griffiths v. Kerkemeyer claim in the sum of $140,113 for pre‑trial need for assistance, and the sum of $363,015 for her post‑trial need for assistance for a period of 30 years.
     She also claimed damages both for loss of amenities based upon pre-trial pain, suffering and inconvenience sustained and for the continuation of those problems post-trial for many years.
     The plaintiff's case involved presentation of much detailed and particularised evidence of costs incurred by her in connection with seeking relief of pain allegedly caused in the accident.  Witnesses were also called to support her contention concerning the pain she had suffered and was still suffering as a result of the neck injury in 1986.
     It is clear from the whole of the evidence that the plaintiff did suffer some injury to the neck in the collision in 1986.  It is equally clear that during the extensive medical examinations and treatment for pain which the plaintiff claimed emanated from her neck from the time of her injury, there was no detectable physical abnormality in her neck processes to which she complained the pain was attributable.
     There was a very significant divergence of medical opinion as to the probable cause of whatever pain the plaintiff did in fact suffer after her involvement in the collision.
     The plaintiff's case relied upon the acceptance of the medical opinion of one doctor (Dr O'Callaghan) that the pain emanated from injury to the cervical facet joints.  Medical evidence called for the defendant was to the effect that the tests performed by that doctor were incapable of determining whether or not any pain suffered by the plaintiff resulted from injury to the cervical facet joints.
     The learned trial Judge expressly preferred the evidence of Dr Lord (called by the defendant) to that of Dr O'Callaghan.
     Nothing was advanced on behalf of the plaintiff upon appeal that would justify any interference with the learned trial Judge's assessment of the weight to be given to the conflicting medical testimony on this point.  Having evaluated the evidence of both medical experts at some length, his Honour said:

"Principally I reject his [Dr O'Callaghan's] conclusion that the primary sources of the neck pain experienced by the plaintiff are 'the facet joints of her mid‑cervical spine'."

He continued:

"For the careful and extensive reasons given by Dr Lord in her oral evidence, and in her report of 8th October 1983, I am positively satisfied that the diagnosis of cervical zygapophysial joint pain [facet joint pain] is not established."

It is clear from the evidence that critical to the plaintiff's case on quantum was the acceptance of her reliability concerning the extent and duration of neck pain she suffered between the time of the motor vehicle collision and the date of trial.
     It was the case for the defendant that the plaintiff was grossly exaggerating the extent of pain suffered as the result of the collision to date of trial, and indeed that she had been less than frank with doctors she had consulted after her neck injury and furthermore had been less than frank in her evidence concerning the nature, time and extent of neck pain.
     Dr Rice, called on behalf of the defendant, expressed the view that any symptoms from a whiplash type of injury suffered by the plaintiff in the collision would have disappeared within about four months and Dr Watson in his report said that symptoms should have subsided within a couple of years and that the plaintiff would recover from her symptoms quickly once "this case is settled".
     The evidence disclosed that the plaintiff had suffered from headaches and had received medical treatment for them some years before the time of the collision, although she gave evidence to the effect that headaches of which she complained commenced only after the collision.
     Subsequent to her injury, the plaintiff received psychiatric treatment.  Dr Field who had given her such treatment, observed that there "will be a dramatic improvement after the court case has been disposed of".  Dr James, a psychiatrist retained by the defendant to examine the plaintiff, could find no abnormality in her mental state.  Dr James thought that the plaintiff had a neurotic disorder with symptoms of depression and that she had developed chronic tension headaches.  He attributed this cause to a variety of "stressful events" which had no connection with the injury she received in the motor vehicle collision.  He said that he expected improvement in the plaintiff "once her case is settled and she is no longer the focus of so much legal and medical attention".
     The learned trial Judge specifically accepted the evidence given by Dr Rice, who specialised in pain management procedure.  That doctor assumed that any soft tissue injury that the plaintiff suffered in the vicinity of her neck, had healed within four months of injury.  He also expressed the view that:

"A different set of aetiological factors came into play to produce pain behaviour that has been maintained for the past seven years.  In particular this is litigation which makes her pain behaviour Jurisigenic in aetiology, with the goal of that behaviour that of obtaining financial settlement.  There is no evidence to support statements of gross disability and need for ongoing extensive and expensive treatments . . . further 'treatment' should be legal rather medical, and that she be encouraged to focus on her levels of activity rather than on her pain."

With respect to Dr Rice, the learned trial Judge accepted his evidence with this reservation:

"Whilst Dr Rice, arguably correctly, says that the soft tissue injury had resolved in four months, I am prepared on the whole of the evidence to find that all the symptoms associated with the original whiplash injury did not resolve until the end of 1989.  With that qualification I adopt all that Dr Rice said."

Dr Redmond, a neuro-surgeon, examined the plaintiff in October 1991 and in the course of his report observed:

"Physical examination was revealing in that there was extreme variability of effort which I am confident revealed an attempt on the part of Mrs Skelton to exaggerate the extent of her disability.  I am therefore concerned that her symptoms as described in the history may have also been exaggerated.

On the basis of this assessment, I would estimate her permanent partial disability as 6 percent of the whole person . . .  I consider that she would be employable in a full-time position which did not require manual work; a clerical position would be an example of this."

On a second examination of the plaintiff in June 1992, Dr Redmond concluded that no damage had been sustained by the plaintiff in the "central peripheral or autonomic nervous systems".  He considered the plaintiff's allegations of weakness in the upper limbs and said that it was "either a conscious or unconscious feigning or exaggeration of a neurological deficit for the purpose of gain".  He then confirmed the plaintiff's capacity to undertake full-time employment and said that she had no requirement for any ongoing medical treatment.  Dr Redmond explained that his estimate of 6 percent disability was based upon accepting the fact that the plaintiff had the limitation in the range of neck movement which she displayed upon examination.  The learned trial Judge accepted the evidence of Dr Redmond.
     During the trial there emerged two facts which clearly influenced the learned trial Judge's conclusion that the plaintiff was exaggerating the extent of disability suffered as the result of the motor vehicle collision.
     The first fact was that at the time of the collision the plaintiff was actively playing competition squash.  She played A Grade Women's squash and B Grade Men's squash.  In season she had played competition squash twice a week and as well practised squash once or twice a week.  Upon the evidence it emerged that within about six months of the injury to her neck, she resumed playing in both male competition and female competition squash, and as well continued to practise at that sport.  Indeed the evidence disclosed that she played squash for a period of about two years after recovering sufficiently from her injury to do so.  She had resumed squash early in 1987, and indeed on 16 January 1989 she wrote a very strong letter to the "Men's Club Captain" of her squash club, complaining of his decision to have a man play in the male squash competition rather than to continue to have her play in it.  At the time this letter was written she had been playing squash for two years after resuming play about six months after her neck injury.
     It was in 1989 that the plaintiff took up playing golf.  She regularly played in golf tournaments and continued to play until the end of 1991 when she ceased playing "for financial reasons".  She said that her physical disabilities did not cause her to stop playing.
     Careful reading of the quite lengthy judgment of the learned trial Judge, makes it clear beyond argument that he did not accept the plaintiff as a reliable witness with respect to disabilities suffered in the collision.  It is clear that he regarded her as exaggerating her complaints of pain and equally clear that he adopted the views expressed by some of the medical witnesses that she was simulating pain probably for the purpose of inflating the award of damages that she might recover in this action.
     In his judgment, the learned trial Judge summed up the difficulty that he faced in assessing damages:

"What complicates the case even further is that for some time after the accident the plaintiff was able to play golf and both women's and men's competition squash; the weight of the medical evidence would tend to suggest that she would have been unable to do all that if she was then suffering from damage to her cervical spine.

Another complicating feature of the case is that the plaintiff appears to be quite capable of doing things when she has the motivation to do so.  She formed the group 'People in Pain Support' and that has become an important part of her life.  She is the main promoter of the group and is very active in organising and attending meetings."

The learned trial Judge accepted the evidence of Dr Jayasinghe and the report of Dr Watson "that there was no brachial plexus involvement" to explain the plaintiff's alleged symptoms of pain.
     The learned trial Judge faced a difficult task in fixing upon the date by which the plaintiff's neck condition had stabilised to leave her with a six per cent total loss of function of the neck.
     There was ample evidence that in the initial stages after injury the plaintiff would have suffered pain and consequent disability.  For a very long period of time she attended medical treatment, physiotherapy etc.  It is clear that the learned trial Judge, upon the whole of the evidence, came to the conclusion that at some stage between the time of injury and the time of trial the plaintiff's physical and psychological condition had stabilised, leaving her with a minimal physical disability, and certainly one which had a relatively minor effect on her earning capacity.  His Honour obviously also concluded that at this time whatever psychological or psychiatric assistance she received could no longer be attributed to her involvement in the motor car collision in June 1986.
     The learned trial Judge found that the plaintiff was exaggerating her symptoms by time of trial and that finding was supported by a good deal of expert medical evidence.
     The plaintiff made and pursued a claim for damages under Griffiths v. Kerkemeyer and his Honour concluded upon the whole of the material, which it is unnecessary to analyse, that this claim was both unreasonable in quantum and insupportable generally.
     The plaintiff's case that she had suffered damage to the facet joints of her cervical spine depended upon the trial Judge accepting the evidence to this effect given by Dr O'Callaghan.  There was medical evidence to the contrary led on behalf of the defendant.  The trial Judge preferred that evidence. 
     There was psychiatric evidence which suggested that the plaintiff may have been unable to cope with whatever pain was attributable in fact to organic causes for some time and that it was reasonable for her to seek aid designed to enable her to cope with pain.  One of the problems however faced by the learned trial Judge was medical evidence demonstrating that on some examinations at least the plaintiff had probably feigned pain.
     In selecting "the end of 1989" as the cut off point at which he was prepared to attribute the symptomology of which the plaintiff complained to the injury she received on 25 June 1986 -i.e. a period of 3½ years - the trial Judge took into account the fact that the plaintiff played squash and golf for 3 of those years.  She said she did that at the suggestion of one of the doctors she attended and that sometime she suffered very great pain as a result of engaging in that activity.
     For the defendant it is contended that the fixing of this cut off point was insupportable in the light of the plaintiff's evidence that for 2 of the 3½ years in question she had played competition squash while at the same time practising squash and that she also played golf.
     The defendant's contention is understandable.  If it were to take upon itself the task of fixing the cut off point, upon the evidence, this Court may well have selected an earlier date.
     However, it was open to the learned trial Judge to accept that the plaintiff did suffer from pain and disability to a lesser degree than her evidence sought to establish.  He took the view supported by medical opinion that she exaggerated her symptomology, either consciously or subconsciously, and medical evidence which he could accept suggested that the plaintiff suffered disabling pain from time to time long after she recommenced to play squash, about 6 months after the time of her injury.
     Both Dr Watson and Dr Jayasinghe said that it could take a couple of years for symptoms produced by a whiplash injury to fully resolve.
     On 16 October 1991, Dr Edmund examined the plaintiff and concluded that she could then perform full time work which did not require manual effort and he then fixed her disability at 6 per cent loss of function of the whole person.
     In selecting the end of 1989 as the cut off point for the physical and psychiatric sequelae of the plaintiff's injury in mid 1986, the learned trial Judge had to determine as best he could on rather conflicting and imprecise evidence, when the need for psychiatric treatment of the plaintiff for her reaction to the whiplash injury ceased.  He concluded that that need ceased by the end of 1989.  His Honour then further concluded that "all the symptoms associated with the original whiplash injury" had then resolved.  Implicit in that finding was that the psychiatric treatment (and other treatment) she received after 1989 could not reasonably be related to the injury sustained in 1986.
     While fixing the cut off point for the plaintiff's symptoms attributable to her neck injury in 1986 to be at the end of 1989 may have been generous to her, we are unable to say that it was not open upon a careful evaluation of the whole of the conflicting medical evidence.  That evidence was to a significant extent based upon the view that the experts took of the reliability of the plaintiff in relaying her symptoms to them.
     It was open to the learned trial Judge to make the finding which has been attacked by the defendant.
     Upon cross-appeal, counsel for the plaintiff examined in very significant detail evidence given by the plaintiff and by medical experts.  The hurdle which faced the plaintiff upon cross-appeal was the fact that the learned trial Judge was not prepared to accept her as a reliable witness.  To the extent that the medical evidence she called depended upon the acceptance of her as a reliable person who was not exaggerating her symptoms, it obviously lacked persuasion having regard to the view the trial Judge took of the plaintiff.
     It was open to the learned trial Judge to make the findings of fact and to reach the conclusions on them recorded in his judgment which have been attacked by the plaintiff.
     Both the appeal and the cross-appeal therefore must be dismissed.