Smulders v Angoloro Pty Ltd

[1992] QCA 355

IN THE COURT OF APPEAL	[1992] QCA 355
SUPREME COURT OF QUEENSLAND	Appeal No. 148 of 1992
BETWEEN:

JOSEPHINE SMULDERS

(Plaintiff) Appellant

AND:

ANGOLORO PTY LTD

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the 21st day of October 1992

This is an appeal by a plaintiff against the amount of damages for personal injury awarded by a District Court judge in a judgment given on 22 June this year.

The appellant was born on 13 September 1964 and suffered her injury on 7 December 1983 when she was 19. She was then single. By the time of trial on 5 February 1992 she was married with two young children.

At the time of the accident in which she suffered her
injury, the appellant was a lead dancer with the Australian
Ballet and had been a member of the corps of that ballet
since she was 17. She had been selected for a lead role in
the film called Coolangatta Gold and it was during the
course of filming a sequence for that film that she suffered
her injury.
She said that whilst performing a dancing manoeuvre which
involved her standing on one foot with the other leg
pointing vertically upward in a split position, her body and
head bent backwards, her arms almost touching the ground
behind her, she felt a "crunch". This caused her
considerable pain for which she was given pain killers and
manipulation which enabled her to continue. However, she
"collapsed" some time later and ceased work for the night.
The filming took place at night and she rested during the
day. She danced again the next night and her diary entry
indicates that she was feeling well and that she enjoyed
herself. She was, however, once again taking pain killers.
There was a break in filming from 9 December to 12 December,
during which time the appellant rested. When she danced
again on 12 December she again experienced pain. When
filming ceased she rested for about four weeks and then
commenced dancing once again with the Australian Ballet.
She said that her back worsened each day on which she danced
and she was unable to continue. She made several subsequent
attempts to go back to dancing but was prevented from doing

so by pain. She has not since danced.

Three doctors gave evidence, some of which was conflicting,
about the appellant's injury and its consequences. The
learned trial judge preferred the evidence of one of them,
Dr Morris, an orthopaedic surgeon, who thought that the
appellant's injury was no more than a temporary exacerbation
of a degenerative condition which had existed for some time
and that her continuing symptoms were caused by progressive
degeneration. His Honour then awarded $3,500 general
damages restricted to past pain and suffering and loss of
amenities.

The appellant sought to persuade this court that his Honour was wrong in accepting Dr Morris' evidence over that of the other medical practitioners, Drs Tooth and Crichton. It is not surprising that she failed to do so. This Court would be most reluctant to interfere with such a primary finding, of opinion as well as of fact, and no error in his Honour's conclusion was demonstrated. There was objective evidence of the existence of degenerative changes and there was evidence that the appellant had previously experienced back pain associated with her dancing.

Once it is accepted that the plaintiff's injury on 7
December 1983 caused only a "very temporary" exacerbation of
her condition, to use Dr Morris' phrase, it must also be
accepted that his Honour was entitled to award damages for
past pain and suffering and loss of amenities only for a
short period and to make no award for loss of earning
capacity. That is plainly what he did. The sum of $3,500
which his Honour then awarded was at the low end of the
permissible range but not so low as to justify interference
by this Court. The trial of this action was nearly a decade
after the incident in which the appellant sustained her
injury. The passing of time, events over the intervening
period, and the conflicting evidence made this case a
singularly unsuitable one in which to interfere, however
much sympathy might be felt for the appellant.
The appeal must be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 148 of 1992
The President Mr Justice Davies Justice White
BETWEEN:

JOSEPHINE SMULDERS

(Plaintiff) Appellant

AND:

ANGOLORO PTY LTD

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the 21st day of October 1992

MINUTES OF ORDER: Appeal dismissed with costs.

CATCHWORDS:	APPEAL AND NEW TRIAL - FINDINGS OF FACT - plaintiff appeals award of damages for injury sustained whilst performing a dancing manoeuvre - whether Court of Appeal ought interfere with trial judge's acceptance of one orthopaedic surgeon's opinion over that of two others
Counsel:	Stenson for the Appellant Hoare for the Respondent
Solicitors:	Barry & Nilsson for the Appellant Neil O'Sullivan & Rowell for the Respondent
Hearing Date(s):	15/10/1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 148 of 1992
BETWEEN:

JOSEPHINE SMULDERS

(Plaintiff) Appellant

AND:

ANGOLORO PTY LTD

(Defendant) Respondent

__________________________________________________

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THE PRESIDENT
DAVIES JA
WHITE J
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Reasons for Judgment of the Court delivered the

21st day of October 1992

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"APPEAL DISMISSED WITH COSTS."

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