Suncorp General Insurance Ltd v Harwood

[1997] QCA 424

COURT OF APPEAL	[1997] QCA 424
McPHERSON JA DAVIES JA MUIR J
Appeal No 3072 of 1997
SUNCORP GENERAL INSURANCE LIMITED

(Defendant by Election) Appellant

and

MERVYN GEORGE HARWOOD (Plaintiff) Respondent

BRISBANE
..DATE 31/10/97
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DAVIES JA: The appellant was the defendant by election in
an action for damages for personal injuries arising out of a
motor vehicle accident on 1 July 1993. The action was
defended only on the amount of damages.

The learned trial Judge awarded a total of $215,176.55. The appellant appears against the judgment based on that assessment on a number of grounds. However the substance of the appellant's appeal is that the learned trial Judge ought not to have accepted the evidence of Dr Downes, an orthopaedic surgeon called for the respondent, in preference to that of Dr Hazelton, a rheumatologist called by the appellant and to a lesser extent, some other medical witnesses called by the appellant.

It is accepted by Mr Fleming who appeared for the appellant in this Court that if the learned trial Judge was entitled to accept the evidence of Dr Downes, this appeal must fail.

As he recognised, with expert witnesses or with witnesses of fact, not to have seen them puts appellate Judges in a permanent position of disadvantage as against the trial Judge, and unless it can be shown that the trial Judge has failed to use, or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at merely on the result of comparisons and criticisms of the witnesses and their views of the probabilities of the case.

Consequently, if the trial Judge's estimate of the doctors
giving evidence formed any substantial part of his reasons
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for judgment, his conclusions accepting one or other of them
should generally be let alone.

The substantial question in this case was the extent to which the motor vehicle accident in which the respondent was involved shortened his working life. Prior to the accident the respondent had had a condition of his back known as ankylosing spondylitis which is an inflammatory disease of the spine causing intermittent severe pain and generally, in mid-life, incapacity.

According to Dr Hazelton, whose opinion may be accepted on this question, it is partly genetic in nature but may also have some environmental influences of an infective nature.

At the time of his accident the respondent, who was born on 10 May 1956, was 37 years of age. He was leading a fairly active life and had been in continuous employment with the same employer over more than 10 years. He had had very few sick days and he had carried out major work on his recently constructed dwelling house in the year preceding his accident, including some quite heavy concreting work. Even shortly after his accident, he had borrowed money for a new vehicle on the assumption that he would be able to continue working. However he has not worked since the accident.

In the accident, the respondent's vehicle received a sideways blow and he suffered a broken rib as well as injuries to his knee, but the major problem after the accident was a substantial deterioration in his back 311097 T11-12/BP M/T COA247/97

condition and it is this which has prevented him from
returning to work.

The questions then were whether this substantial deterioration was caused by the accident and if so to what extent the accident accelerated the natural deterioration of his spine, which it is accepted was occurring before the accident.

The extent to which if at all ankylosing spondylitis may be aggravated or accelerated by trauma seems to be at least a matter of some dispute. Doctors Downes and Hazelton expressed conflicting views on this. Dr Downes was of the view that this condition would have prevented the respondent from working by about age 45 or 47 even without the accident, and that the accident accelerated that degree of disability by in effect eight years, that is, back to the date of the accident.

Dr Hazelton appears to have conceded that the accident may have had short term effects on the respondent's capacity for work, but no more than that.

The learned trial Judge substantially accepted Dr Downes' opinion, allowing the respondent damages for loss of earning capacity until approximately 43 years of age or perhaps a little more than that. In reaching this conclusion, His Honour made favourable findings with respect to the demeanour of Dr Downes and the respondent and unfavourable findings in that respect about Dr Hazelton.

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His Honour thought that Dr Hazelton and other specialists called for the appellant did not give and apparently were not prepared to give sufficient weight to the positive aspects of the respondent's pre-accident activities and motivations and that they over-estimated those features of the history which might be interpreted negatively. In other words, His Honour thought that these doctors were giving somewhat partisan evidence rather than evidence which was completely objective.

On the other hand, His Honour accepted the evidence of the plaintiff and his witnesses and said of the plaintiff that he was a truthful and reliable witness, that he was impressed by the plaintiff's pre-accident intentions, his work record, his record of work around the home and his high level of motivation in the pre-accident period.

His Honour said that the respondent was a stoical person
before the accident who had every intention of working to
age 60, although His Honour did not think he would have had

the capacity to do that.

Most of these findings are really not challenged by the
appellant before us, although the opinion expressed by
Dr Downes is challenged. This really is based upon some
matters which the appellant has referred us to from his
written outline. There was evidence, as the appellant
rightly points out, that the respondent had said that his
back was getting sorer from 1977 until just before the
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accident, that his pain had increased in intensity as his
ribs had healed after the accident, that the pain was
causing him difficulty in sleeping even before the accident
and that he had said on one occasion to his doctor that he
did not think he could handle the work any more.

Nevertheless, the position was, as I have said, that he was a hard working man both in the course of his daily work and in the course of work around the house in the period right up to the period of the accident.

His Honour noted that the appellant submitted, as the appellant submits to this Court, that the tone of Dr Downes' report demonstrated an argumentative style and that the witness did not have the disinterestedness which one expects in an expert.

His Honour said that he could understand that submission being made on the basis of Dr Downes' reports, but that having seen him in the witness box, he accepted him as a truthful and reliable witness. Indeed His Honour said Dr Downes impressed him more than any other expert in the case.

Dr Downes' opinions accorded, His Honour said, with the impressions which he, the trial Judge, had had of the respondent's evidence and that of his wife and Mr Trimble, the neighbour. His Honour described himself as being very impressed with the evidence of Dr Downes.

The appellant's counsel also points to some aspects of
Dr Downes' evidence which he said supported the view that
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his evidence was argumentative rather than objective. I do
not agree with this. I think it is impossible, without
seeing and hearing him, to say whether his demeanour was
argumentative or whether, as His Honour plainly thought, he
was giving objective evidence.
The appellant also points to some parts of Dr Downes'
evidence which it was submitted showed inconsistencies.
Again I do not agree. His evidence in my view on the whole
was generally internally consistent. I should also add with
respect to
Dr Downes that he was the respondent's treating doctor and
consequently had seen him over an extended period before, as
well as after the accident. Dr Hazelton and the other
appellant's medical witnesses saw the respondent only for
the purpose of this litigation.

In my view no substantial reason has been shown for setting aside the findings of the learned trial Judge based as they plainly were on observing the essential witnesses, the plaintiff, Dr Downes and Dr Hazelton, and accepting the two former of those and rejecting Dr Hazelton.

That being so, in my view the appeal must fail and I would dismiss it.

DAVIES JA: I agree.

MUIR J: I agree.
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...

McPHERSON JA: The appeal is dismissed with costs.

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