Thomas v Perkins - [2005] WASCA 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THOMAS -v- PERKINS [2005] WASCA 119

CORAM: MCLURE JA
PULLIN JA
LE MIERE AJA

HEARD: 9 JUNE 2005

DELIVERED : 24 JUNE 2005

FILE NO/S: FUL 30 of 2004

BETWEEN: STEPHEN MICHAEL THOMAS
Appellant
AND
MICHAEL JOHN PERKINS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
Citation  :PERKINS -v- THOMAS [2003] WADC 233
File No  :CIV 19 of 2003

Catchwords:

Torts - Negligence - Personal injury - Evidence of injury - Causation - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P R Momber
Respondent: Mr A S Stavrianou

Solicitors:

Appellant: Peter Momber
Respondent: Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118

Case(s) also cited:

Bennett v Minister for Community Welfare (1993) 176 CLR 408
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

MCLURE JA: I have had the advantage of reading the draft reasons of Pullin JA. I agree with the order he proposes generally for the reasons he gives.
PULLIN JA: This is an appeal against the judgment of Judge O'Sullivan in the District Court dated 3 March 2004 pursuant to which his Honour awarded damages to the plaintiff for personal injuries following a motor cycle accident. At trial liability was not in dispute. The matter proceeded for the purpose of assessment of damages.
The traffic accident occurred on 21 May 1998 when the respondent was on his way to work. It was dark and may have been raining. The respondent rode his motor cycle over the crest of a hill and was confronted by the appellant's truck which was in the process of making a turn across the road. When he saw that a collision was inevitable, the respondent caused his machine to slide under the truck. He slid on his right hand side. In doing so he collided with the inside of the right rear wheel of that vehicle. He gave evidence in the following terms about the accident:
"Basically the bike was down on the side; my right leg was underneath the bike; my left leg was elevated on top of the bike. The bike's just slid in sideways and actually hit and my left foot basically was elevated and it's hit the rear wheel around about the mid portion of the heel of my foot to my toes and the impact of actually hitting the tyre, my body has actually forced the back of my Achilles tendon to do that sort of momentum which has actually caused the tear on the back."
He was able to get out from under the truck and stand up but was shaken and sore. He was only 100 metres or so from his place of work and after speaking with the truck driver he made his way there and was taken home.
The main issue at the trial, and the only issue on this appeal, is about whether the respondent suffered any injury to his left achilles tendon as a result of the accident.
After the accident the respondent was driven by his wife to the Armadale/Kelmscott Hospital where he was examined and assessed. He was seen by a Dr Pasta‑Hodgkinson and others, including the charge nurse. None of these people were called to give evidence. The notes, however, were received into evidence. There was nothing in the notes referring to any injury occurring to the left achilles tendon. There was a

repeat description of the accident in the notes and again there was no reference to an injury to the left achilles tendon. Both notes were made on 21 May 1998. The respondent gave evidence about the main concerns he had when he was at the hospital. He said:
"My main concern when I got to the hospital was my right side because my right side down my leg and my hip, the left - sorry, the right side of my stomach, my right leg and my right hip basically took the full impact onto the bitumen. So at the time at the hospital I was more concerned with the right side. I had quite a sore hip and there was already some bruising and scratching that were there."

The following day the respondent attended upon Dr Joanna Teh of the Huntingdale Family Medical Practice. The respondent had not seen her before. Dr Teh was not called to give evidence but a note she made on 22 May 1998 was tendered in evidence. The note read:
"2 months x enlarging lump on left Achilles tendon (overseas), PMH & R plus (L) talipes correction. 8\. more tender today.
2 months lump present before accident Talipes correction." (AB 194)
The respondent gave evidence that Dr Teh said that this complaint was not something in her field of expertise and that he should see a specialist and she referred him to Mr Leslie Stagg, a general surgeon.
The respondent was seen by Mr Stagg on 4 June 1998, who referred him to Mr L L Johnston, an orthopaedic surgeon. Mr Stagg wrote to the Insurance commission of Western Australia by letter dated 19 June 1998 in which he said:
"He had a problem related to his left achilles tendon and as far as I understand and according to his history, there was no relationship between the development of the problem which had been progressive for the previous three months and the motor vehicle accident to which you refer in your letter of June 18th, 1998."
Mr Johnston saw him for the first time on 24 June 1998 and made a clinical diagnosis of a partial rupture of the left achilles tendon. After subsequent investigations, the respondent underwent a surgical exploration and decompression of the area on 29 September 1998.
The respondent returned to see Mr Johnson on a number of occasions, but continued to suffer from pain and discomfort, although he returned to work at first on light duties and later on the shop floor. Eventually after further reviews, Mr Johnston noted on 23 June 2000 that the respondent continued to have pain and arranged for a MRI to be done to assess further the structure and function of the tendon and investigate whether there was any residual inflammation. The MRI showed some residual scarring, but in Mr Johnson's opinion, not sufficient to require more surgery. However, as the respondent was not improving, and it was unlikely that the would be able to resume work as a welder, he decided to consult with a colleague, Mr Peter Annear to see whether anything more could be done. It was Mr Annear's view, expressed in a report of 10 August 2000 that decompressive surgery was necessary and he and Mr Johnston performed it on 20 December 2000. The respondent cannot now work at his pre‑accident work.
The appellant in his notice of appeal contends that the learned trial Judge should have found that the respondent only suffered minor soft tissue injuries to his right hip and right knee and some soreness on his right lateral abdomen which injuries were not the cause of any loss of work capacity and that the Judge "was not justified" in finding that the respondent had suffered an injury to his left achilles tendon in the motor vehicle accident. The appellant contends that more weight should have been placed upon the absence of evidence in the hospital notes about any achilles tendon injury; upon Dr Teh's letter and notes to the effect that the accident was not the cause of the achilles tendon problem; upon the evidence of Dr Stagg that the history he was given revealed no relationship between the development of the achilles tendon problem and the accident; and upon Dr Teh's letter and Dr Stagg's letter stating that they had been given a history that the achilles tendon problem pre‑dated the accident. The appellant also points to the fact that the respondent completed a notice of intention to make a claim and did not, in it, refer to an injury to his achilles tendon, and likewise did not do so in his letter of 8 June 1998 to the Insurance Commission of Western Australia.
However, to be set against these pieces of evidence, was the oral testimony of the respondent. He testified that on the night after he left hospital, the left achilles tendon became very sore and that his concern when he was at the hospital was directed more to the injuries to his right‑hand side. He gave evidence that he did tell Dr Teh that "he had a lump on the back of his leg which had grown significantly in size after the accident" [19]. The respondent's evidence was that Mr Stagg had said to him that Dr Teh had written in her note of referral that the lump had been there for two months to which the respondent replied "that that was not so and that he would see Dr Teh to clarify the position". He testified that he telephoned Dr Teh to do so but he found it hard to understand her, that he kept having to repeat himself (even at the initial consultation) and that she "didn't actually seem to comprehend what I was trying to explain to her …" This led his Honour to make a finding that it was "more likely than not that Dr Teh was confused by his instructions" [43].
In the notice of appeal the appellant also contends that "it was only when [the respondent] attended on Dr Chris Hammersley on 20 May 2002 that he provided details of the accident which the Respondent … relied upon in evidence to establish that he had injured the left achilles tendon in the accident." That however, overlooks the fact that on 26 June 1998, Mr Johnston wrote to the State Government Insurance Commission, a letter which read in part:
"I reviewed Mr Michael Perkins on 24th June 1998.
He had been involved in a motorcycle accident and struck his achilles tendon during the course of the accident and has had pain and swelling since."
That letter was written just over one month after the accident. Furthermore, his Honour heard evidence from the plaintiff's wife that he was untroubled by his achilles tendon before the accident, and from a workmate, Mr Beaumont, who worked with the respondent before the accident. Mr Beaumont gave evidence that the work that he and the respondent did involved climbing and required considerable mobility and agility and that a worker had to be on his feet for most of the shift which might last nine or ten hours per day. Mr Beaumont said he had never known the respondent to have any problems with his legs prior to the accident.
I also observe that the "notice of intention to make a claim" form dated 8 June 1998, although not referring to the achilles tendon, referred to the fact that he was having a "further check up on … left ankle. Dr Stagg". The only injury that the respondent says that he suffered to his left ankle was in relation to his achilles tendon. Finally, I observe that during cross‑examination, Dr Stagg conceded that the respondent "may well have" told him that the respondent had a motor vehicle accident on 21 May 1998 and that he regarded that motor vehicle accident as being responsible for his problems with his left achilles tendon.
At the trial the appellant sought to persuade the trial Judge that the respondent's complaint in relation to his achilles tendon was not caused by the accident. The trial Judge recorded the appellant's submission as being that the respondent had "seized the opportunity presented by the accident to invent a claim in relation to his achilles tendon problem".
Having heard that submission and all of the evidence which included medical evidence that a partial rupture of the achilles tendon can occur as a result of a blow, he concluded:
"42 In my view in the light of all the evidence it should be accepted that the plaintiff's injury to his left achilles tendon was caused by the accident. It does not seem to me that the reports of each of the medical practitioners as to the account given by the plaintiff is in the end of great significance and if there was confusion in the plaintiff's mind as to the precise mechanism of the injury that would not have been surprising given the nature of the accident, its sudden onset and the other injuries which he received and which were immediately painful.
43I accept the plaintiff's evidence that he did tell Dr Teh that a lump over the tendon had become swollen and tender overnight and I think it more likely than not that Dr Teh was confused by his instructions. I also accept the evidence of the plaintiff, his wife and Mr Beaumont that he had had no trouble with the achilles tendon prior to the accident."
In my opinion it was open to his Honour to reach the conclusions which are set out above. His Honour carefully reviewed the evidence, accepted the respondent's evidence about why it was that some of the written material did not refer to the injury to his achilles tendon, and accepted the evidence of the respondent which was corroborated by his wife and his workmate, that he had no trouble with his achilles tendon before the accident. The trial Judge's conclusion was open on the evidence. His Honour had the advantage denied to us of seeing and hearing the respondent, his wife and Mr Beaumont. In my opinion there is no basis upon which this Court could upset his findings. See Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Fox v Percy (2003) 214 CLR 118 at 127. I accept that there is nothing said in Abalos or Devries which prevents this Court from

reversing the trial Judge's findings based as it is inferentially on demeanour; but there must be something that points decisively and not merely persuasively to error on the part of the trial Judge in acting on his impressions of the witnesses: Fox v Percy (supra) at [90]. In my opinion no error has been demonstrated. I would dismiss the appeal.

LE MIERE AJA: I would dismiss the appeal for the reasons stated by Pullin JA.