Wilkinson v Campton - [2003] NSWCA 325

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wilkinson v Campton [2003] NSWCA 325

FILE NUMBER(S):
41094/02

HEARING DATE(S): 8 October 2003

JUDGMENT DATE: 13/11/2003

PARTIES:
Michael Wilkinson
Mathew Geoffrey Campton

JUDGMENT OF: Meagher JA Tobias JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 131/00

LOWER COURT JUDICIAL OFFICER: Rolfe, J

COUNSEL:
A: Mr J Guihot
R: Mr J D Hislop QC / P Maiden

SOLICITORS:
A: Hunt & Hunt, Newcastle
R: MBT Lawyers, Coffs Harbour

CATCHWORDS:
NEGLIGENCE damages quantum
ND

LEGISLATION CITED:
Supreme Court Act, s75A
Motor Accidents Act 1988, s70A para 35, s79A

DECISION:
Appeal to be dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41094/02
DC 131/00
MEAGHER JA
TOBIAS JA
FOSTER AJA
13 November 2003

MICHAEL WILKINSON v MATHEW GEOFFREY CAMPTON

Judgment

MEAGHER JA: I agree with Tobias JA.
TOBIAS JA: This is an appeal from a decision of his Honour Judge Rolfe of the District Court who, on 8 November 2002, awarded the respondent damages in the sum of $219,136. The proceedings arose out of a motor vehicle accident, which occurred on 19 February 1999 when the respondent was a passenger in a four-wheel drive vehicle driven by the appellant.
The existence of a duty of care and a breach of that duty was admitted. However, the appellant pleaded contributory negligence on the part of the respondent and there was a significant contest with respect to the damages to which the respondent was entitled. The primary Judge found that there was no contributory negligence and although two of the grounds of appeal related to that finding, the issue was abandoned in the appellant's written submissions. Accordingly, the appeal related only to the quantum of damages awarded by the primary Judge.
The facts
The respondent was born on 8 May 1980 and was 22 years of age at the time of the trial. Although he obtained his Higher School Certificate, he was not interested in pursuing a tertiary education with the consequence that, after leaving school, he had to find work as a labourer.
At the time of the accident he was a casual service assistant employed by Coles. After the accident he was unable to work for a short time but being a person who was, as the primary Judge found, "fairly determined" he became bored with being on sickness benefits and was keen to return to the workforce. He initially began to assist his father who was building his house although he undertook light work at that time. Notwithstanding the fact that he was still experiencing considerable discomfort from the injuries received in the accident, in or about October 1999 the respondent obtained work as a brickies labourer. In about March 2000 he obtained work as a concrete labourer in connection with a certain road works contract, which ultimately expired. He then obtained employment as a concrete finisher and this lasted from approximately March 2000 to October 2001…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilkinson v Campton

Details

AGLC: Wilkinson v Campton [2003] NSWCA 325
Case: [2003] NSWCA 325
Decision Date: 13 November 2003

CaseChat Overview and Summary

The appeal concerned the quantum of damages awarded to the respondent, Mr. Wilkinson, following an admitted duty of care and breach of that duty by the appellant, Campton. While the appellant initially pleaded contributory negligence, this issue was abandoned on appeal. The primary judge had found no contributory negligence and awarded damages to the respondent, which the appellant sought to reduce.

The central legal issue before the court was the assessment of the quantum of damages, specifically concerning future expenses. The respondent, a young man who had sustained injuries to his neck and lower back in the accident, had demonstrated a strong work ethic and a desire to remain in the workforce despite ongoing pain. The primary judge had awarded $18,500 for future expenses, comprising $14,000 for future physiotherapy and $4,500 for annual medical reviews.

The court considered conflicting medical evidence regarding the respondent's injuries and prognosis. The respondent's medical experts, including Dr. Miller and Dr. Davis, supported the existence of disc protrusions and annular tears, indicating ongoing pain and limitations that would necessitate future treatment. In contrast, the appellant's expert, Professor Ehrlich, opined that the respondent had minimal symptomatology, no objective abnormalities, and was fit for heavy physical work, suggesting that radiological findings of disc bulging were common and not necessarily attributable to the accident or a source of ongoing disability. The primary judge, having found the respondent to be a truthful and honest witness who underplayed his injuries, accepted the respondent's evidence and the opinions of his medical experts.

The appeal was dismissed with costs. The court upheld the primary judge's assessment of damages, including the award for future expenses, finding that the evidence supported the need for ongoing physiotherapy and medical reviews to manage the respondent's pain and maintain his capacity for work.

Orders

Orders of the court

Appeal to be dismissed with costs

Background

Background to the litigation

The existence of a duty of care and a breach of that duty was admitted. However, the appellant pleaded contributory negligence on the part of the respondent and there was a significant contest with respect to the damages to which the respondent was entitled. The primary Judge found that there was no contributory negligence and although two of the grounds of appeal related to that finding, the issue was abandoned in the appellant's written submissions. Accordingly, the appeal related only to the quantum of damages awarded by the primary Judge.The facts The respondent was born on 8 May 1980 and was 22 years of age at the time of the trial. Although he obtained his Higher School Certificate, he was not interested in pursuing a tertiary education with the consequence that, after leaving school, he had to find work as a labourer. At the time of the accident he was a casual service assistant employed by Coles. After the accident he was unable to work for a short time but being a person who was, as the primary Judge found, "fairly determined" he became bored with being on sickness benefits and was keen to return to the workforce. He initially began to assist his father who was building his house although he undertook light work at that time. Notwithstanding the fact that he was still experiencing considerable discomfort from the injuries received in the accident, in or about October 1999 the respondent obtained work as a brickies labourer. In about March 2000 he obtained work as a concrete labourer in connection with a certain road works contract, which ultimately expired. He then obtained employment as a concrete finisher and this lasted from approximately March 2000 to October 2001 when he had time off work as the result of an accident when he fell off the back of a truck when on a goat shooting expedition with friends. In January 2002 he obtained further employment as a concrete renderer, which continued until he commenced work with Brambles on 31 October 2002. At the time of the trial he was the driver of a Triple 7 100 tonne dump truck at a goldmine near Orange. Although he was only on a six month contract he was hopeful of renewing it and continuing that form of employment. He was also interested in driving bulldozers. The primary Judge found that the respondent was a very truthful and honest witness. He was also of the view that the respondent underplayed the extent of his injuries and disabilities. According to his father, whose evidence the primary Judge accepted, this was because he was not a complainer but was a young man who was intent on getting out into the community and working: his attitude was "she'll be right, Dad". The respondent also said that he was not in the least bit interested in receiving the dole. There was no challenge by the appellant to these and other credit based finding. As a consequence of the accident the respondent suffered injuries to his neck and lower back. He was admitted to Coffs Harbour Hospital where a neck brace was applied but he was discharged the following day. He experienced severe pain in his neck and particularly in his back, the former causing him to suffer headaches, which ultimately receded although his neck pain remained. At the time of trial his neck was not so painful but the respondent said, and the primary Judge accepted, that his lower back had always been painful since the accident. It was extremely painful for the first nine months after the accident after which it improved slightly due to the respondent undergoing intense and regular physiotherapy. In particular he was only able to work as a brickies labourer because he had physiotherapy three times a week.

Evidence

Evidence Before The Court

Apart from amounts which are not disputed, the primary Judge also awarded the respondent $18,500 for future expenses being $14,000 for future physiotherapy and $4,500 for the cost of annual reviews by a general practitioner and neurosurgeon. The appellant also challenges these awards. The medical evidence As appears to be common practice in the District Court, the reports of the medical experts retained on behalf of each party were tendered without objection and admitted before the primary Judge without any requirement for any of those experts to attend for cross-examination. This was somewhat unfortunate given that the medical opinion of the appellant's medical experts was significantly at odds with that of the respondent's experts. There was no way they could be reconciled. The respondent relied on a report of Dr G.A. Miller, specialist surgeon, dated 20 July 2000. Dr Miller recorded that the respondent claimed that he suffered intermittent pain in his lumbosacral region which radiated into his left buttock and left leg. The respondent claimed that bending, stooping and lifting aggravated his problem and this was particularly noticeable if he was required to shovel or bend down to smooth concrete. On physical examination the respondent was tender to palpation over L3, L4 and L5. Dr Miller opined that the respondent had suffered a flexion/extension injury to his cervical and lumbosacral spine and that he had developed a myofascial syndrome affecting his cervical and lumbar regions. He did not consider that the respondent was fit to work as a labourer and he considered that the restrictions which the respondent was then experiencing would continue into the future. On 25 July 2001 the respondent underwent a CT scan of his lumbar spine by Dr Lars Bark. Dr Bark's conclusion was as follows:"L4-5:There is a large central and paracentral disc protrusion encroaching upon the thecal sac and impinging upon both sides lateral recesses and corresponding nerve roots bilaterally.L5-S1:There is a broad based central and left lateral disc protrusion encroaching upon the thecal sac and at least the left L5 nerve root probably also to some degree involves the right side.Conclusion: Disc protrusion at L4-5 and L5-S1." On 26 July 2001, armed with the result of the CT scan, the respondent was seen by Dr John Davis, an injury management consultant in occupational medicine. In his report of 28 July 2001, Dr Davis set out the respondent's then complaints which included constant pain in his lower back, radiation of symptoms through his buttocks and intermittent shooting pains through his thighs as far as his knees which was aggravated on bending, twisting, heaving lifting and after a hard day's work. On examination he noted tenderness in the mid-line over the interspinous ligaments at C2/3, C3/4 and bilaterally over the facet articulations at 0/1, 1/2 and 2/3. He also noted tenderness at L3/4, L4/5 and L5/S1 in the mid-line although it was more marked at the lower two levels.

Decision

Reasons for decision

On 2 August 2002 Dr Peter Wilson performed an MRI scan on the respondent's lumbar spine by. His findings were as follows:"…..There is a focal central disc protrusion at L4/5. This is seen to indent the anterior aspects of the dural sac, but no clear neural compression is seen. There is some high signal intensity in the posterior disc annulus here consistent with an annular tear.At L5/S1, there is mild broad base posterior annular bulging of the disc, which is slightly more marked in the most left lateral posterior portion of the disc, where it extends into the inferior aspect of the intervertebral foramen. No clear neural compression is evidence here. The L5 lumbar nerve appears to exit without compression.…..Conclusion: Disc protrusions at L4/5 and L5/S1 as described without clear neural compression. Annular tear in the posterior disc annulus at L4/5, which may give rise to back pain." On 8 October 2002, Dr Miller provided a further report in which, after having the benefit of Dr Bark's CT scan of 25 July 2001 and Dr Wilson's MRI of the lumbar spine, confirmed the disc protrusion at L4/5 and L5/S1. He concluded that in his belief the injury on 19 February 1999 more probably than not caused a prolapse of the respondent's L4/5 and L5/S1 discs and that this explained his lumbosacral pain. He further said that these radiological investigations confirmed the opinion expressed in his report of 20 July 2000. On 9 October 2002, Dr Davis also provided a supplementary report in these terms:"Thank you for your further correspondence dated 18 September 2002 and the attached copies of reports of a CT scan dated 25 July 2001 and an MRI scan dated 2 August 2002. In fact the CT scan had been reviewed by me earlier.The MRI scan however does demonstrate an annular tear at the L4/5 level and thus confirms my earlier impression of a possible annular tear as noted in the Comment of my report dated 28 July 2001.Whilst such information adds weight to my diagnosis and opinion, I do not believe that there is any indication for me to alter my previously expressed comments or percentage impairment estimates." The respondent was also seen by Dr Geoffrey Boyce, consultant neurologist, who in a report dated 30 May 2002, noted that he had intermittent pain in his neck and back which, periodically, would shoot down both legs. He noted that the CT scan of 25 July 2001 of Dr Bark showed a central and paracentral protrusion at L4/5 encroaching on the sac and impinging on the lateral recess bilaterally. On clinical examination he noted that there was full movement in the neck and back but tenderness to palpation. He opined that the respondent had suffered lumbar and cervical sprain as a result of the accident which had almost certainly resulted in the disc changes noted in the CT of his lumbar spine. His prognosis was that the respondent was likely to develop osteoarthritic degeneration in his lumbar spine at an earlier age than he would have anticipated. On behalf of the appellant the respondent was seen by Professor Frederick Ehrlich, a specialist in orthopaedic rehabilitation, on 22 May 2002. In his report of the same date, Professor Ehrlich noted the respondent's present complaints to the effect that his neck was on occasion a little stiff and his lower back "may ache if he has a really heavy day". He noted Dr Bark's CT scan showing disc bulging at the lowest two levels and opined that the respondent should be considered to have sustained strains of his cervical and lumbar spines in the subject accident. In his view the respondent currently had minimal symptomatology and no objective abnormalities. He considered that the respondent was clearly fit to do heavy physical work and that no treatment or rehabilitation of any kind was indicated. He also said this:"The only matter which might be a subject for debate is the radiological appearance of disc bulging. Such appearances are not uncommon in individuals who have got no symptoms whatever and in any case disc pathology is more commonly of spontaneous origin rather than the consequence of injury. If it were argued that his disc bulgings were the consequence of this accident then it is clearly not a source of ongoing disability of any kind."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.