Smith v Holloway

[1993] QCA 149

IN THE COURT OF APPEAL	[1993] QCA 149
SUPREME COURT OF QUEENSLAND

Appeal No. 275 of 1992

Brisbane
[Smith v. Holloway & FAI]

BETWEEN:

PETER JOHN SMITH

(Plaintiff) Appellant

- and -

PAUL HOLLOWAY

(Defendant)

First Respondent

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)

Second Respondent

Mr Justice Pincus

Mr Justice Shepherdson

Judgment delivered 27/04/1993

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	COURTS - negligence - findings of learned trial judge on disputed facts - assessment of damage.
Counsel:	Lumb for appellant. Griffin Q.C. for respondent.
Solicitors:	Keily & Co., Albany Creek for appellant. Bradley & Co. for respondent.
Hearing Date:	10th April 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 275 of 1992

Brisbane

Before Mr Justice Pincus
Mr Justice Shepherdson

[Smith v. Holloway & FAI]

BETWEEN:

PETER JOHN SMITH

(Plaintiff) Appellant

- and -

PAUL HOLLOWAY

(Defendant)

First Respondent

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)

Second Respondent

JUDGMENT OF THE COURT

Delivered the 27th day of April 1993

The plaintiff has appealed against an award of damages by a judge of District Courts in his action claiming damages for personal injuries suffered in a road accident on 15th May 1987 when the plaintiff, riding a bicycle, was struck by a motor car driven by the defendant.

The learned trial judge in a carefully reasoned judgment assessed damages and gave judgment for the plaintiff against the defendant for $8,984.44 made up as follows:-

General damages $8,000.00

Interest thereon $385.00

Loss of wages (net) from

18/5/87 to 26/5/87 $353.10

Interest $194.50

Fox v. Wood allowance	$51.84 _________
$8,984.44 _________

The learned trial judge found that the only injuries sustained on 15th May 1987 which were compensible were:-

(i)  a neck injury which has resulted in a permanent disability in terms of bodily function but one producing only the quite minor symptoms earlier referred to in his judgment; that such consequences had no important consequences and had not been shown to have played any causative role in plaintiff's subsequent problems;

(ii) a back injury which kept the plaintiff from work for some
eleven days and caused some back discomfort on his return
to work but did not lead to any further absence from
employment.

The appellant plaintiff does not challenge the first of

these findings but he does challenge the second. The appellant
also challenges his Honour's finding that the appellant's
psychiatric condition of which a psychiatrist, Dr Mulholland, had
given evidence, was not causally connected with the injury
suffered on 15th May 1987.

The learned trial judge had before him oral and written evidence from the following doctors:-

1.    Dr W.T. Sugars - an orthopaedic surgeon.

2.    Dr D.J. Tuffley - an orthopaedic surgeon.

3.    Dr W.B. Maguire - an orthopaedic surgeon.

4.    Dr M.J. Weidmann - a neurosurgeon.

5.    Dr P.J. Mulholland - a psychiatrist. He also had written reports on the plaintiff from Dr John

Pentis, an orthopaedic surgeon. Those reports were tendered by consent on behalf of the plaintiff but Dr Pentis did not give oral evidence.

Dr D.R. Crompton, a psychiatrist also gave sworn evidence for the defence.

Before turning to how the learned trial judge dealt with the medical evidence, it is helpful to look at the report dated 26th April 1990 from the Redcliffe Hospitals Board (Ex. 4) signed by Dr M. Gordon.

This report shows that plaintiff, then aged almost 22 years
was seen at Redcliffe Hospital on 15th May 1987, was not knocked
out and complained of occipital pain, painful right shoulder,
painful lumbo-sacral spine and left foot; that X-rays of the
skull demonstrated no fracture as did X-rays of the chest, lumbo-
sacral spine and the left foot; that X-rays of the cervical spine
showed there was a little irregularity at the anterosuperior
margins of the bodies of C4 and C5 and that this might have
represented an acute injury and that he was discharged home. The
report went on to say that on 18th May plaintiff returned
complaining of pain in the neck region, that he was treated with
a collar at that time and was reviewed at the fracture clinic of
the hospital on 21st May 1987 when he was treated with a soft
collar and that he was again reviewed on 26th May 1987 when he
had full range of movement of the neck with only very limited

pain.

It is noteworthy from this report that the lumbo-sacral spine was not mentioned after the plaintiff's initial complaint on admission when X-rays of the lumbo-sacral spine demonstrated no fracture. In short, that report concentrates almost entirely on the plaintiff's neck injury and its treatment.

Thereafter, a period of about seven months elapsed before complaints of low back pain began to emerge. On 9th March 1988 Dr Sugars, who was an orthopaedic supervisor at the Prince Charles Hospital, saw the plaintiff who told Dr Sugars that he had had intermittent low back pain since a motor bike (sic) accident approximately six months earlier. Dr Sugars reported

to Dr E.A. Marsh of Bracken Ridge (Ex. 20). The report mentions that X-rays of the lumbar spine were unremarkable. Dr Marsh gave no evidence as his Honour noted.

On 13th February 1989 Dr Sugars again saw plaintiff who had further complaints of low back pain.

Dr Pentis first the plaintiff on 5th June 1990. The plaintiff was then experiencing pain in his lower back.

Dr Pentis' latest report (14th May 1992) described the plaintiff as having had soft tissue injuries to his cervical and lumbo-sacral spine which had left him with residual incapacities in that region from subsequent scarring and fibrosis of the musculature.

At trial the learned trial judge was presented with two bodies of orthopaedic evidence - one body came from Drs Maguire, Tuffley and Sugars and the other from Dr Pentis who as his Honour noted did not give oral evidence.

The former body generally speaking opined that the lumbar injury was a lower back muscle strain and none of those three specialists was prepared to accept Dr Pentis' opinion that the plaintiff had suffered an initial strain of lumbar discs which had not resolved but had become chronic.

The learned trial judge found that the first hint of continuing back pain was in about December 1987 or some seven months after the road incident.

Faced with this conflict in the orthopaedic evidence the learned trial judge resolved it against the plaintiff and his finding as to the lumbar injury appears to have been based on Dr Tuffley's opinion. His Honour rejected Dr Pentis' evidence.

It is quite clear from the reasons for judgment and the evidence, that the defendant put the plaintiff's credit firmly in issue. His Honour carefully reviewed the evidence on this particular issue noting in the course of his reasons:-

"Although the plaintiff has been described in terms
which suggest that his intellectual level is that of
a borderline mentally retarded person, his performance
as a witness demonstrated his ability to grasp
counsel's questions and even the direction questions
may be heading and to provide sensible answers."

In our opinion the learned trial judge dealt very fairly with the plaintiff on the issue of credit ignoring evidence before him as to the plaintiff having committed criminal offences and having been imprisoned before 15th May 1987 and saying:-

"I prefer to rely on my assessment of him and his evidence as I saw him and heard it rather than call in aid an a priori assumption as to the credibility of a person who has once committed criminal offences."

As was to be expected plaintiff's credit bore very heavily

on the question as to the cause of the low back pain which began

in late 1987.

His Honour noted that during the period when plaintiff was
working for the Pine Rivers Shire Council from 10th November
1987 until 4th February 1988 plaintiff did not apparently seek
medical treatment for "sharp pain right in the back of my spine"
which plaintiff told his Honour he suffered while working for the
Pine Rivers Shire Council. His Honour also noted that the stated

reason for the plaintiff's dismissal from that Council on 4th

February 1988 was -

"due to your continuing poor attendance and failure to
notify the depot office of your absence . . .”

The learned trial judge noted that it was after the

plaintiff lost that job that his general practitioner referred
him to Dr Sugars at the Prince Charles Hospital.
In cases of this type the plaintiff bore the onus of
proving the injuries he suffered as a result of the defendants'

tort, the extent of those injuries and their duration (Edwards

v. Hourigan

(1968) Qd.R. 202).

It is apparent from his Honour's finding as to the low back injury that he failed to discharge that onus to the extent for which his counsel now contends.

On disputed questions of fact as to the extent of the plaintiff's injuries and their duration, the learned trial judge found against the plaintiff. His Honour has and had the overwhelming the advantage over this Court of having seen and heard the witnesses. The plaintiff, on the issue of the finding

as to the back injury and its extent has failed to satisfy this Court that his Honour's findings should be reversed or interfered with (Paterson v. Paterson (1953) 89 C.L.R. 212; Brunskill v. Sovereign Marine & General Insurance Co. Ltd (1985) 59 A.L.J.R. 842).

Finally there is the finding against the plaintiff as to any causal relationship between the plaintiff's psychiatric condition and the accident on 15th May 1987. In his reasons his Honour carefully reviewed the evidence of Dr Mulholland noting that in giving his written opinion Dr Mulholland:-

(a)  had been given a life history of the plaintiff somewhat different from that given in court;

(b)  did not have the benefit of reports and evidence from Drs Tuffley, Crompton and Sugars;

(c)  conceded that, were the preponderance of orthopaedic opinion to be that there really was no physical explanation for the plaintiff's complaints of back pain, the psychiatric diagnosis would have to be that the plaintiff had a somatoform disorder, either psychogenic pain or conversion disorder or a mixture of the two.

His Honour noted that there was the preponderance of orthopaedic opinion and therefore was "not persuaded on the balance of probabilities that the plaintiff's complaints can be causally connected with the injury sustained on May 15th 1987".

Here again, the plaintiff as appellant has failed to satisfy this Court that this particular finding by the learned trial judge should be reversed or interfered with.

The appeal will be dismissed with costs to be taxed.