Wilson v Collingwood Store Pty Ltd
[2014] VSCA 20
•25 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0089
| NATASHA WILSON | Appellant |
| v | |
| COLLINGWOOD STORE PTY LTD | Respondent |
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| JUDGES | OSBORN and BEACH JJA and McMILLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2014 |
| DATE OF JUDGMENT | 25 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 20 |
| JUDGMENT APPEALED FROM | Wilson v Collingwood Store Pty Ltd (Unreported, County Court of Victoria, Judge O'Neill, 20 June 2013 (date of verdict)) |
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ACCIDENT COMPENSATION – Jury trial Assessment of damages – Pain and suffering damages only – Relevant pre-existing condition – Pre-existing risk of further injury – Vicissitudes – Jury's assessment of damages not manifestly inadequate.
LEGAL PRACTITIONERS – Conduct of counsel – Final address – Inappropriate personal observations – Inappropriate references to awards of damages in other cases.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A D Clements SC with Mr J J Fitzpatrick | Slater & Gordon |
| For the Respondent | Mr J P Gorton SC with Mr R Kumar | Wisewould Mahony |
OSBORN JA
BEACH JA
McMILLAN AJA:
Introduction
On 3 July 2002 the appellant, Ms Wilson, was working as a sales assistant at Collingwood Cash Converters. As a co-worker unravelled power cords attached to a number of television sets displayed upon a set of shelves, the shelving collapsed and one of the television sets fell towards the appellant. She instinctively tried to catch it and in so doing twisted and wrenched her right knee.
Ms Wilson suffered a dislocation of the right patella and chondral (cartilaginous) damage to the anterior surface of the knee below.
Her evidence was that when she wrenched her knee she felt excruciating pain and that she continued to feel such pain thereafter.
Ms Wilson consulted Dr Duong, her general practitioner, who had treated her over the previous 10 years or so. She was given medication and had some physiotherapy.
Dr Duong referred Ms Wilson to Mr Howells, an orthopaedic surgeon, whom she first saw in August 2002. On 3 February 2003 Mr Howells performed an arthroscopy of the right knee at the Mercy Hospital. She then received patello femoral stabilisation surgery on 13 October 2003. This did not improve her pain.
On 20 July 2004 Ms Wilson underwent a third operation to remove the staples in her knee which she said were causing more pain.
In 2012 (some 10 years after the incident in which she was injured) Ms Wilson issued proceedings in the County Court claiming damages for personal injury.
When the matter came on for trial before his Honour Judge O’Neill and a jury negligence was admitted and it proceeded as an assessment for damages. The main issues at trial were:
(a) the extent of the injury suffered by Ms Wilson in the incident on 3 July 2002;
(b) the relevance of the condition of Ms Wilson’s knee prior to the injury to the assessment of damages; and
(c) the sum in which damages for pain and suffering ought to be assessed.
On 20 June 2013 the jury assessed damages for pain and suffering and loss of enjoyment of life in the sum of $65,000.
Ms Wilson now appeals that verdict on four grounds.[1]
[1]The grounds of appeal were confined in submission by counsel for the appellant.
First, it is submitted that remarks made by senior counsel for the respondent in the course of final address at trial deprived her of a fair trial.[2]
[2]Senior counsel who appeared on appeal were not those who appeared at trial.
Secondly, it is submitted that the trial judge erred in directions that he gave the jury as to the manner in which they could utilise the written medical opinion of Mr Brendan Dooley (orthopaedic surgeon).
Thirdly, it is submitted that his Honour erred in failing to specifically direct the jury that the accident in issue need only be a cause of an injury in order for that injury to be compensable.
Fourthly, it is submitted that the damages awarded are manifestly inadequate.
For the reasons set out below, we accept the second and third grounds should be regarded as interrelated and taken together are made out.
Whilst we accept that the remarks made by senior counsel which are complained of were improper and inappropriate we are not persuaded that the trial miscarried by reason of them.
Likewise we are not persuaded that the damages awarded were manifestly inadequate.
Background facts
Ms Wilson’s claim was materially complicated by the facts that:
(a) she suffered from a congenital abnormality of the right knee in that she had a shallower than normal trochlear groove;[3]
(b) she had suffered three prior dislocation injuries to her right knee.
[3]A groove funnelling the attachment to the trochlea or pulley of the superior muscle.
There was in turn evidence that prior to the compensable injury Ms Wilson suffered from a knee which was out of alignment, subject to soft tissue laxity and contained pre-existing crepitus or cartilage damage.
The respondent summarises the evidence as to prior incidents and disability upon which it sought to rely as follows:
5.The prior incidents and disability: The jury were entitled to accept evidence to the effect that:
(a)The appellant had previously injured her knee in November 1997 causing her to attend hospital, forcefully twisted it in February 1998, and had further incidents in May 1999 and February 2000. These incidents, or at least some of them, were painful dislocations or subluxations. She had suffered, prior to the workplace accident, damage to the cartilage in her knee.
(b)Following the 2000 injury, the appellant attended the Sunshine Hospital and was found to have swelling, tenderness, restricted movement and crepitus. In April 2000 she had bad crepitus. In June 2000 surgery was raised as a possibility. In July 2000 her knee was still strapped and she was still limping and requiring physiotherapy, orthopaedic review and three months off work. In September 2000 she saw a surgeon and was still in pain. Surgery was to be discussed and was to be further considered in six months’ time. Her knee continued to ‘give way’ and she needed and was given disabled parking privileges. In November 2000 she was still in pain and limping and requiring Panadeine Forte and was unable to engage in activities. In February 2001 she was still in pain and requiring Panadeine Forte and having problems squatting or using stairs. She continued with physiotherapy at the hospital until March 2001. In May 2001 she required special consideration in her studies because of the level of pain she was in. In July 2001 her knee pain meant that she was unable to attend university and was losing time from work so that she required disability assistance. In November 2001 she still required disability payments and special parking privileges and was thought not likely to improve over the following six months. In January 2002 she again was sufficiently disabled to require disability payments.[4]
[4]Respondent’s outline of submissions dated 2 December 2013, [5] (references omitted).
The appellant’s history gave rise to two significant issues of causation:
(a) the ascertainment of the extent of the aggravation of the appellant’s pre-existing condition caused by the compensable injury; and
(b) resolution of whether and to what extent the damages for that aggravation should be reduced having regard to the risk of vicissitudes affecting the future health of her knee irrespective of the occurrence of the compensable injury.[5]
[5]At one point early in his charge the trial judge said: ‘I don’t think there’s any issue in this case that the plaintiff suffered an injury in July 2002 which caused her pain, impairment [or] loss. I think the real question is the degree of that, given the pre-existing problems, and secondly, the extent to which that would have occurred anyway.’
The resolution of these issues depended upon the jury’s assessment of both the appellant’s own evidence and of the medical opinion evidence presented to it.
The appellant’s case was put to the jury on the basis that prior to the compensable injury she had in effect recovered from the effects of her prior injuries. In particular she was able to run five kilometres some three to five times a week, engage regularly in roller-blading, and undertake her work duties without difficulty.
The respondent took issue with the appellant’s case that she had recovered completely.
·It relied on the opinion of Mr Shannon, an orthopaedic surgeon, that such a recovery was unlikely given the appellant’s history and indeed would have been ‘miraculous’.
·It pointed to the absence of corroborating evidence from the appellant’s ex-husband or mother as to the extent of her recovery.
·It attacked the reliability of the appellant’s own evidence. She was cross-examined with respect to the histories she had given about her pre-existing knee problems. She accepted that, whilst she had told Mr Howells she had three dislocations as a result of netball injuries, she had incorrectly told him that she had not had treatment for this. She agreed that the information she had provided in an affidavit sworn for the purposes of her serious injury application, had not been accurate with respect to the treatment she had received after the injury in 2000. In that affidavit she deposed that following the 2000 incident the pain lasted only for about one week and that she then made a full recovery. In fact she had a history of ongoing pain, discussion of surgery, 13 months of physiotherapy at hospital, special consideration at university, a grant of a disabled parking permit and disability certification.
Ms Wilson’s evidence was that at the time of trial she continued to suffer from excruciating pain in her right knee. This was also put in issue on the basis that she should not be accepted as a witness of truth for the reasons set out above and that it was inconsistent with the evidence of limited ongoing treatment, limited medication, and a capacity to lift and care for her three children. The jury’s attention was also drawn to covert film of the appellant which appeared to show her moving and engaging in everyday activities without any apparent difficulty.
Thus both the ‘before’ and ‘after’ elements of the appellant’s account of the effect of the compensable injury were in issue.
The respondent further submitted that the jury should accept evidence that Ms Wilson was vulnerable to further injury in any event. There was evidence that:
(a) it was almost inevitable that absent the compensable injury the appellant would have had dislocations in the future, produced from only minimal trauma and it was only coincidence that this occurred at work;
(b) in particular Mr Shannon expressed the opinion that:
Once you go onto a recurrent dislocation of the patella, and given these abnormalities of anatomy, it was almost inevitable that her kneecap was going to continue to dislocate unless something surgical was done to prevent it. So that once you get to about three dislocations, then the fourth one is almost inevitable.
(c) Mr Shannon further said that it takes only a minor twist to produce a dislocation in a recurrently dislocating patella and that he could say from experience that if someone gets to the stage of at least three dislocations of the patella that further dislocations are highly likely if not inevitable;
(d) there was also evidence from Mr Michael Dooley (orthopaedic surgeon) that absent the compensable injury there was an even chance that the appellant would have had a further dislocation within three to five years in any event, which could be brought on at any time by minimal trauma such as getting out of a chair, moving while washing dishes, clipping her foot on a tree root, missing a kerb or slipping on wet ground;
(e) it was the evidence of both Mr Shannon and Mr Michael Dooley that further dislocations or subluxations would cause permanent damage which would ultimately cause symptoms;
(f) it was the opinion of Professor John Hart, orthopaedic surgeon, that absent the compensable injury, it was likely that Ms Wilson would have come to the same surgery for her symptoms which pre-dated the injury or for further dislocations in any event; and
(g) Professor Hart further said:
This is a very difficult problem to treat and in the long term the potential is that she’ll develop osteoarthritis affecting particularly this part of the knee joint and then going on to develop the rest of the knee, that’s the potential in the long term. One hopes by realigning the kneecap and correcting mechanics, and in my view by restoring the joint surface to as normal as possible, that she can avoid that, you know, for a long period. But there’s no absolute guarantee that the knee will fully recover, and it will never be a normal knee.
It can be seen this evidence addresses both the nature and degree of the further injury in issue and the likely timeframe of its occurrence.
For completeness, we note that the degree of likelihood of further injury was a matter of varying opinion. In cross-examination, Mr Howells, the appellant’s treating surgeon, and Mr Russell Miller, orthopaedic surgeon, who were called to give oral evidence on behalf of the appellant, conceded that it was possible the appellant would have suffered further episodes of dislocation irrespective of the compensable injury. They did not accept the probability was as high as stated in the opinions on which the respondent relied.
Manifest inadequacy
It follows from the evidence to which we have already referred that we do not accept that the complaint of manifest inadequacy can be made out. If the most favourable view of the evidence to the respondent is taken then the damages awarded were well within the range.[6] More particularly the extent of the aggravation injury suffered by her was squarely in issue as was the level of her ongoing symptoms. In addition the evidence justified a material discount for the long term vicissitudes attendant upon her underlying condition.
[6]Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657.
The prior condition of Ms Wilson’s knee
As we have said, the history of Ms Wilson’s prior injuries logically raised a series of causation issues. In resolving those issues the appellant was entitled to rely on what was described to the jury as the ‘egg shell skull’ principle. In explaining that principle, the trial judge initially directed the jury as follows:
The defendant takes the plaintiff as it finds her: This is an important direction because it has particular application to this case. The law says, in connection with the award of damages, that a defendant takes a plaintiff as it finds him or her. One aspect of this principle is that a plaintiff may be particularly vulnerable to injury because of some pre-existing medical condition - in this case obviously, the plaintiff’s right knee. Consider a person who has a skull which is abnormally thin. In the law we call this the eggshell skull principle. A defendant cannot avoid responsibility for paying damages if such a person suffers a skull fracture by the defendant’s fault when an ordinary person would not do so, by saying that a person of ordinary robustness would not have suffered such an injury.
The defendant cannot avoid responsibility for paying damages in this trial for the actual consequences of the injury by saying that the injury would have led to lesser consequences if the plaintiff’s knee had been normal.
Conversely the respondent was entitled to rely on the proposition that Ms Wilson was entitled to compensation only for the aggravation of her condition constituted by the compensable injury. The trial judge gave the following directions:
Aggravation or acceleration of a pre-existing injury or disease: This legal principle has also particular application in this trial. A plaintiff can only recover damages for the injury caused by the defendant’s fault. Let me give you an example unrelated to this case. If the relevant injury was the aggravation of pre-existing arthritis in the spine, what must be compensated for are the effects of the aggravation only. If the injury was the acceleration of the arthritis, so that it became symptomatic or disabling earlier than it would otherwise have done, what must be compensated for are the effects of the acceleration.
Now, although a plaintiff must prove what injuries were caused by the defendant’s fault and their consequences, if, as in this case, a defendant wishes to argue that the injury was an aggravation of a pre-existing condition; and the aggravation has ceased; or the injury was the acceleration of the pre-existing condition which would have become as symptomatic or as disabling as it is now or at some future time; or the plaintiff would have come to surgery in any event; or she would have continued to suffer dislocations to the kneecap which would have continued to cause damage to the back of the knee, then there is an obligation upon the defendant to adduce - meaning to
bring forward - evidence that these things would have occurred absent the workplace incident.
As you have been told, the defendant says that such was the nature of the plaintiff’s knee condition from the netball incidents and the congenital problem with the groove in the kneecap, that the plaintiff was likely to have suffered further dislocations or subluxations and thus face the same or similar surgery regardless of the workplace incident. She would then be in the same or a similar state had the workplace incident not occurred. The obligation is upon the defendant to introduce evidence of the plaintiff’s pre-existing condition and its future course. You will recall there was considerable evidence on the point by almost all of the doctors. It will be a matter for you to assess this evidence and determine what you make of it and whether you act upon it. Remember, the onus remains with the plaintiff to prove to you the extent of the injury caused by the workplace incident.
This direction gave effect to the principles stated in Watts v Rake[7] as explained in Purkess v Crittenden.[8] The direction did not direct the jury however as to how they should apply the evidence relating to the plaintiff’s condition prior to her compensable injury giving rise to a pre-existing risk of further injury. In Malec v JC Hutton Pty Ltd[9] Deane, Gaudron and McHugh JJ relevantly said:
But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[10]
[7](1960) 108 CLR 158.
[8](1965) 114 CLR 164.
[9](1990) 169 CLR 638.
[10]Ibid 643 (citations omitted) and see per Brennan and Dawson JJ ibid 639-40.
In Chappel v Hart[11] Gaudron J said:
It is well settled that an award of damages must take account of the probability that some or all of the damage suffered by the plaintiff would have occurred in any event.
[11](1998) 195 CLR 232, 241.
In Riley v Cocco[12] Heydon JA (with whose reasons Mason P and Young CJ in Equity agreed) said:[13]
While defendants must generally take plaintiffs as they find them, they are not obliged to compensate plaintiffs irrespective of the possibility that pre-existing conditions would have caused the plaintiffs harm in any event …
[12][2001] NSWCA 379.
[13]Ibid [36] (citations omitted).
In Seltsam Pty Ltd v Ghaleb,[14] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
(a)In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.
[14][2005] NSWCA 208, [103].
Ipp JA continued:
What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies…[15]
[15]See also Varga v Galea [2011] NSWCA 76; Ridolfi v Hammond [2012] NSWCA 3; Smith v Gellibrand Support Services Inc [2013] VSCA 368, [73].
The concept of contingencies or vicissitudes is potentially applicable not only to claims for damages for economic loss but also to claims for damages for pain and suffering[16] although in charging a jury in a case such as the present it would normally be expressed simply by reference to the pre-existing risk of further injury.
[16]Eg Winston v Roach [2003] NSWCA 310, [73]-[77] (Mason P with whom Santow J agreed).
Senior counsel for the respondent at trial specifically addressed the jury on the basis that a discount for the pre-existing risk of further injury personal to the appellant was appropriate in this case:
The phrase that the law uses is ‘degree of risk’. Was there a risk in the absence of the work accident that she would suffer dislocation or further dislocations of the knee in the ordinary course and conduct of her life? Was there a risk that a further dislocation or dislocations would have damaged or further damaged the articular surface to the back of the patella which was productive of pain and restriction? Was there a risk that a further dislocation or dislocations would have required a stabilisation operation?
When the law talks of degrees of risks, it means the degree of probability of those events occurring. The probability may be very high, 99 per cent, or a near certainty, or very low, less than 1 per cent or near impossibility, and within that range of 1-99 per cent is the range of degree of risk which you, the jury, would look at and apply a common-sense approach to whether it was a high risk, a moderate risk, or a low risk. Some percentages have been given by doctors and I'll take you to those shortly, but you're not obliged, you just use your judgment, common-sense judgment and say what the degree of risk absent the work injury was. The law uses this concept of degree of risk to evaluate damages when proof that something might or might not have occurred is impossible, as it is here.
In practical terms it works this way: You know that prior to the work accident that the plaintiff suffered pain and restriction in her right knee caused by the three dislocations, in particular that third one in 2000. Such pain and restriction, of course, as she did suffer before the work accident is not to form any part of your damages award. You also know that in the work accident she suffered a dislocation which caused pain and restriction creating the need for stabilising surgery.
If the plaintiff had been a person who did not have a congenital abnormality which had caused her to suffer dislocations, then there wouldn't be any problem, there wouldn't be any difficulty. She'd be entitled to the full amount of damages for the injury and restrictions caused to her by the work accident. But it's clear that she did have the congenital abnormality and that did create a risk that, regardless of the work injury in her life, she would have suffered a further dislocation or dislocations which called for surgery and/or caused her to suffer pain in the knee. In those circumstances, in our submission, she is not entitled to the full amount of damages for the injury and restrictions.
This is where the percentage comes in. If you thought that the risk of the plaintiff suffering a further dislocation with pain and restriction was high, absent the work accident, and that she would have gone on to suffer the like form of injury as she did in the work accident, then the corresponding percentage to reduce the damages would be high. On the other hand, if you thought the risk was remote, then you'd reduce the damages by a low percentage. It's a matter for you.
It's our submission that the evidence has demonstrated that the plaintiff was particularly vulnerable to dislocation, absent the work accident, and that her damages should be reduced by a significant percentage to reflect that vulnerability.
This was with respect a very clear exposition of the relevant principles. After giving it senior counsel for the respondent went through the aspects of the evidence upon which the respondent relied to substantiate the risk in issue. He referred in particular to the medical evidence from Mr Howells, Mr Brendan Dooley, Professor Hart, Mr Michael Dooley and Mr Shannon.
At the conclusion of his final address senior counsel returned to the issue saying:
So, members of the jury, it's our submission that you should find that it was very likely that the plaintiff would have suffered another dislocation or dislocations of her right knee if the work accident had not occurred, and that that risk was very significant and you should make an allowance for that risk in your assessment of the damages. If another dislocation had occurred, it's also likely that surgery as was contemplated by Mr de Steiger in 2000 and performed by Mr Howells in 2003 to stabilise the knee, would have been required and performed. It's also likely that damage to the articular surface of the patella had already occurred prior to the work accident and was productive of pain and restriction as documented by the hospital and the general practitioner.
Despite these submissions the trial judge did not direct the jury as to the application of the concept of vicissitudes constituted by the pre-existing risk of further injury to the assessment of damages in the present case.
The careful articulation of each of the issues of causation we have identified was of particular significance in the present case because the respondent tendered (somewhat surprisingly without objection) a written report from Mr Brendan Dooley (orthopaedic surgeon) who was unfit to attend trial. The report stated the following opinion:
Ms Wilson suffers from a congenital, or developmental, problem with her right knee joint which pre-existed the injury of 3 July 2002. A CT scan prior to this injury had shown significantly deficient lateral femoral condylar development with a malformed trochlear groove, with evidence of subluxation laterally of the patella in the patello-femoral joint of her right knee joint. It had certainly one and probably-several-episodes of lateral dislocation of the patella; the major one being when playing netball in late 1996. As a result of the incident on 3 July 2002, at work, she suffered further injury to her right knee joint requiring surgery, first with arthroscopic surgery and then patella-femoral re-alignment which essentially has failed and left her with the same situation that she had prior to the injury on 3 July 2002.[17]
[17]Report of Mr Brendan Dooley dated 30 November 2009.
It went on to answer a series of specific questions which included the request:
As best as you are able, estimate what the course of the right dislocated knee would have been for the plaintiff, in the absence of the injury complained of.[18]
[18]Ibid.
Mr Dooley answered:
The probabilities are that she would have continued to have at least several further episodes of patello-femoral dislocation, but in the absence of the injury complained of, she would have continued to have problems with her right knee joint because she has always had a deficient patello-femoral groove since early adolescence, which made it much more likely that she would suffer recurrent subluxation or dislocation of the patella in the future.[19]
[19]Ibid.
He then concluded his report by stating:
In summary, in assessing this woman's right knee injury on 3 July 2002, it is necessary to apportion impairment and disability for her congenital/developmental problem of her right knee joint, aggravated by the injury of 3 July 2002. I consider that two-thirds of her current impairment and disability relate to the congenital/development state of her right knee joint that was present prior to this injury and one-third of her current impairment and disability relates to the injury of 3 July 2002.[20]
[20]Ibid.
The trial judge recognised that this report gave rise to some potential difficulties because of Mr Dooley’s use of the concept of ‘apportionment’. In our view the trial judge was correct to do so. The summary concerning apportionment followed on immediately after the opinion concerning ongoing vulnerability. Both this juxtaposition and the use of the notion of apportionment itself made the final conclusion susceptible to a variety of interpretations from the jury’s point of view. We do not accept the respondent’s submission that because the report is expressed in ordinary English words it was ultimately a matter for the jury what was to be made of the evidence. The judge was bound to direct the jury as to how to use it.
His Honour first relevantly directed the jury as follows:
A report of Mr Brendan Dooley, orthopaedic surgeon, was read to you. He saw the plaintiff in November 2009. I might say, there are two Dooley’s here - Mr Brendan Dooley who gave the report and Mr Michael Dooley who you heard give evidence. He obtained a history of the dislocation to the kneecap in 1996. He said that the scans showed that probably from early adolescence she had a persistent subluxation of the right kneecap with a deficient groove. When he examined her, he said she was suffering from a mildly painful but unstable right knee. There was nothing to suggest any exaggeration in her symptoms. He noted she was physically able to care for her three children. He said recurrent dislocations of the kneecap were a common condition in adolescent females. He said the probabilities were that she would have continued to have several further episodes of dislocation and ongoing problems with the right knee, absent the workplace injury. In apportioning impairment between on the one hand her developmental problem and the
injury of July 2002, he would apportion two-thirds to the former and a third to the workplace incident.
I want to leave the script again and say something to you about the final part of that opinion of Mr Dooley - that’s this apportionment. What I want to say to you is this: I am not certain precisely what Mr Dooley meant by that apportionment, and we won’t know because he wasn’t called to give evidence and wasn’t cross-examined. I think there was something said that he was unwell at this time. In that circumstance we don’t know precisely what he means by that apportionment.
I want to remind you of what I said to you earlier about, the defendant must take the plaintiff as it finds her. If what Mr Dooley was saying, that simply because the plaintiff had this deficiency which you are aware of - the flattening or thinness of the groove - therefore for that reason you would reduce her damages by two-thirds or would apportion responsibility for the pre-existing problems by two-thirds and leave one-third for the workplace incident, then that is not correct. That is not a correct application of the law as I have told you bearing in mind the defendant must take the plaintiff as it finds her.
There was no error of principle in this initial direction although it might be said to some extent to have invited speculation as to what Mr Dooley meant. His Honour went on to say:
If on the other hand what he means to say is that, because of the previous dislocations that the plaintiff had suffered and the damage that she suffered in those dislocations - if you find there was damage - if by reason of that she had a certain level of disability, be it pain, need for treatment, whatever, before the workplace incident, the day before the workplace incident in July 2002, and that what you see of her today was contributed to by the disability before the workplace incident by two-thirds and the disability after the workplace incident by a third, then that is permissible.
Likewise there was no error of principle in this direction but his Honour went on further:
Let me give you an example so that I might explain that about a bit better. Let’s say someone had a very bad back and that up to a certain point in time they couldn’t work, they had a lot of treatment, they had a lot of medication, and right at that point in time when they’re having that treatment and medication there’s a further incident that happens at work for which they seek compensation, and afterwards there’s perhaps a bit more treatment, a bit more pain, a bit more restriction in activity. It might be appropriate in those circumstances to say, well, two-thirds of the problem was what was existing before and one-third after, therefore you apportion damages in that way. That’s permissible.
Also, if what Mr Dooley was saying was this, which is [senior counsel for the respondent’s] argument for the defendant: If you look at the plaintiff today, the condition she’s in today, it was likely back the day before the workplace incident that she would have continued to suffer dislocations - you know, walking down the street, turning with her leg fixed - and that, in the natural progression that that would have meant that when you see her today she would have been perhaps not as bad but worse than she would have been otherwise, then you can apportion damages in the way as described.
In our view this direction was at least potentially, if not actually, misleading. Whereas the initial directions given by his Honour disavowed a simple reduction of the appellant’s damages, both the direction concerning the back injury example and the example concerning the pre-existing likelihood of continuing dislocations were expressed specifically by reference to apportioning damages rather than in the first instance identifying the extent of the aggravation and in the second adjusting damages to allow for the pre-existing risk of further injury.
A further difficulty is that the apportionment suggested in the report was to be undertaken by reference to Mr Brendan Dooley’s assessment of the appellant’s ‘current impairment and disabilities’ ie her present condition at the time of report, (30 November 2009) whereas she was in truth entitled to damages for past, present and future pain and suffering assessed at the date of trial (20 June 2013). The report again invited a potentially simplistic approach.
The identification of the extent of an aggravation injury did not (at least in a case such as the present) readily lend itself directly to the apportionment of damages for the plaintiff’s post-aggravation condition. It simply required a before and after enquiry resulting in the ascertainment of the compensable injury for which damages were to be awarded and an assessment of those damages.
Conversely, as senior counsel for the appellant submitted below it is possible that a plaintiff who suffers from a pre-existing vulnerability to injury may be regarded as arriving at her post-injury condition in substantial part as a result of that vulnerability. But to so reason may deprive the plaintiff of the benefit of the principle that the defendant must take the plaintiff as it finds her if the vulnerability is treated in part as the basis of an apportionment.
Furthermore, senior counsel’s ‘argument for the defendant’ referred to in the concluding direction quoted above did not lead to the conclusion that damages should be ‘apportioned’ but rather that the damages which might otherwise be awarded for pain and suffering should be discounted for the pre-existing risk of further injury. If this is what was intended to be conveyed it was not said clearly and the relevant concept of discounting for this type of vicissitude had not previously been explained to the jury by the judge and was not clarified thereafter.
At trial senior counsel for the appellant took exception to the charge and sought a specific direction that it was sufficient for the appellant to establish that the aggravation injury was a cause of her subsequent condition in order for her to be entitled to compensation for such condition. No such further direction was given. The Victorian Civil Jury Charge Book gives an example of the ordinary charge given to the effect sought.[21]
The plaintiff is not required to prove that the accident is the only cause of her injuries. She must prove that the defendant’s negligence was a cause: not necessarily the sole cause, of the injuries, loss and damage suffered by her. All the plaintiff need prove is that the accident was a cause or, to put it another way, materially contributed to the injuries alleged to result from the accident.
[21]3.1[7].
Earlier in his charge the judge had simply said:
It is a necessary principle of the law relating to damages that the plaintiff is only entitled to compensation for the pain, suffering, restriction, impairment and loss of enjoyment of life which she has proved on the balance of probabilities has resulted from the workplace incident.
This proposition was elaborated in similar general terms, eg:
You need to look at all the evidence and determine as a matter of commonsense whether you are satisfied that the defendants admitted negligence caused the consequence to the plaintiff as she claims.
When these matters are taken together we are of the view that an unacceptable risk arose that the jury would misuse the written opinion of Mr Brendan Dooley and simply assess damages for pain and suffering by reference to the appellant’s global condition at the date of trial and then reduce that assessment by two-thirds.
Coincidently the damages awarded were almost precisely one-third of the figure of $200,000 put to the jury by senior counsel for the appellant.[22]
[22]In so saying we acknowledge that $65,000 was also the mid-point of the range of damages put on behalf of the respondent and was a figure which the jury may simply have regarded as fair and appropriate.
Whilst it is true that as the respondent submits that the judge (at least in part) directed the jury as to how they might permissibly use the evidence, the direction as a whole gave rise to a real risk that the jury would use the statements in the report as a basis to reason impermissibly.
In our view the trial miscarried in consequence of the ultimate confusion in the judge’s charge on these issues and the matter must be remitted for retrial. Issues of the appellant’s credibility bear so squarely on the resolution of her claim that it would be inappropriate for this Court to attempt to assess damages itself and neither party to the appeal submitted that we should do so.
The final address for the defence
In concluding his final address to the jury senior counsel for the respondent said:
Members of the jury, in these courts, as you can imagine, we have court cases and see people from the community who have suffered a very wide range of physical and mental disability. Examples of the more serious cases which come to assess at significant damages of up around $500,000 or so for the pain and suffering are the quadriplegics confined to a wheelchair who have no or little sensation above their neck, or the children who from birth have suffered cerebral palsy and require constant care throughout their lifetime. Then there are other cases at the other end of the spectrum where people from our community, although injured, have been able to lead a fairly normal existence with some restrictions but on the whole have a fairly stable and enjoyable lifestyle, and in our submission the plaintiff's case falls into that latter category.
Of course, she's entitled to every cent of fair and reasonable compensation for the aggravation of the injury to her right knee which happened in the workplace. In the beginning and over the next couple of years she had to go through the arthroscopy, surgery on the knee to stabilise it and then remove the staples. She no doubt had a fair degree of pain and discomfort in that period but a few years beyond the work accident. But that was a long time ago, that was over nine years ago and since then she's had her children and life for her has substantially moved on.
Members of the jury, it is sometimes the case where the barristers mention figures and try and persuade you that a particular figure is the one that you should award in a particular case. [Senior counsel for the appellant] has told me that he is going to recommend a figure to you as the appropriate damages to award, and he's told me what the figure is, as he's bound to do. If I'd been wearing a wig, as I sometimes do in these courts, it would have fallen off with the whiplash when I heard it. The figure which he proposed to put is breathtaking, it's way beyond any sum of money which could be described as fair and reasonable.
In a case where there's no claim for financial loss, such as loss of past or future wages, as here, the figure which he will try to justify of $200,000 is courageous and bold as brass. Even in a case where work injury to a perfectly stable and normal knee caused the pain and disability which the plaintiff has suffered, the sum of $200,000, in our submission, is audacious. A reasonable award would not be even half that amount.
Perhaps $80,000 would be the very top of the range, higher than normal because of her youth when the injury occurred. However, a discount of that figure is required because, as we've submitted, this is a case of aggravation of a pre-existing disability, so there should be a discount. It's entirely a matter for you, but we would submit that an award of $50,000 and no more would be a fair and reasonable assessment of the damages. If your Honour pleases.
Objection was immediately made to the judge by senior counsel for the appellant concerning reference to his opponent’s wig falling off. No application was however made for discharge of the jury.
The trial judge expressed the view that the language used by senior counsel for the respondent was colourful but not impermissible. His Honour went on to observe:
Counsel in common law jurisdictions, you would know so well, add colour and light and emphasis to the address and I don't see any problem with that, the jury will accept it or reject it. You can say what you want along the same lines within the permissible bounds, but I see that as not breaching anything.
Fairly shortly thereafter and early in his own final address senior counsel for the appellant at trial responded to what had been said on behalf of the respondent as follows:
Of course, [senior counsel for the respondent] said other things. He said, oh, $200,000 if he was wearing a wig it would have fallen off with the whiplash. Of course, he would say this, this is their mouthpiece. That's his job. He mentions a figure of $500,000 for a quadriplegic suggesting that you should use that as some sort of model to scale down the plaintiff's. You might think quadriplegic is much more than $500,000. That's what [senior counsel for the respondent] says. I don't want to be seen to be critical of [senior counsel for the respondent] or over-critical, that's his job to do and done it most capably you might think. He used every argument that could possibly be used. But in the end result may I suggest to you, ladies and gentlemen, as he said to you, use your common-sense, this is not a case of smoke and mirrors.
In turn when charging the jury the trial judge made clear that what counsel said was not evidence but comprised no more than submissions which the jury could utilise if they found them useful.
In summarising counsel’s final addresses the trial judge further said of senior counsel for the respondent:
He put to you a figure of $80,000 as being appropriate compensation discounted for the prior problems she had and the risk further dislocations and surgery down to a figure, he said, of $50,000. He made comments about what he understood [senior counsel for the appellant’s] figure of $200,000 to be. It’s a matter for you, but I suggest you put aside hyperbole and colourful expressions, set that aside, counsel making comments about one another. Concentrate on the real issues in the case.
In turn his Honour referred to the response of senior counsel for the appellant:
He said that the tit-for-tat between counsel - that the defendant’s figure of $50,000 was right at the bottom of the range that you might expect.
In our view senior counsel for the appellant was entitled to object to the passage in the address complained of. It is not the function of counsel to express personal opinions to the jury but to make submissions. To express figures put to the jury for their assistance by reference to personal opinion introduced an entirely extraneous element into the jury’s considerations. The observations made implicitly treated the contest between the parties as one which the jury might resolve by reference to the view they had formed as to the competence and expertise of counsel.
The case is similar to Baulch v Lyndoch[23] in which counsel told the jury that the figures to be put to them on behalf of the plaintiff were ridiculous and further were known to her counsel to be so. Bongiorno JA and Byrne AJA observed:
The proper role of counsel is to present persuasively and even vigorously the case which they are retained to present. There are, of course, well known limits upon what might be presented in argument. One of these limits is that counsel may not misstate the evidence or mislead the court as to factual matters. There is, however, no ethical or other obligation upon counsel to present only submissions of fact which are known to be reasonable. Likewise, it is entirely proper for opposing counsel to seek to persuade the tribunal of fact that these submissions are without foundation or that they should not be accepted.
This said, it is no part of counsel’s function to argue, not that an opponent’s contentions are flawed but, that the opponent knows them to be flawed. Counsel presenting argument to a jury is not giving an opinion; they are making submissions. It follows that the statements in question in this case by defence counsel were improper and, above all, irrelevant. They ought not to have been made and counsel should have known this to be so.[24]
[23](2010) 27 VR 1.
[24]Ibid 8 [27]-[28].
Likewise the reference in the present case to figures awarded in cases of quadriplegia was at the very least inappropriate. The figures mentioned are derived from decisions made some 10 years prior to the case now before us. It is not the jury’s task to assess damages by reference to ‘comparable sales’ in some way analogous to an assessment of the market value of property. Whilst figures of this type may assist the Court in a trial without a jury, where their relativities can be debated, they must seldom (if ever) be of assistance to a jury.
This said we would not have regarded counsel’s remarks alone as rendering the trial so fundamentally unfair that the jury’s verdict should be set aside. In our view the trial judge’s directions did much to diffuse the prejudice which the appellant might be said to have suffered. No objection was taken to this aspect of his charge as inadequate and we are not persuaded that the trial miscarried because of the matters now complained of.[25]
[25]Cf the conclusion of Bongiorno JA and Byrne AJA in analogous circumstances in Baulch v Lyndoch (2010) 27 VR 1, 8 [29], [30]:
[29]Seen in isolation, counsel’s statements warranted a rebuke from the trial judge at the appropriate time. The offending counsel was indeed fortunate that his Honour took a generous view of it in his Ruling No 8. His Honour, in his charge, told the jury that the attack was directed to the submissions which defence counsel expected would be made by counsel for the appellant, and not against counsel personally. It was probably about the only thing he could have done in the circumstances short of discharging the jury.
[30]We are of opinion that his Honour was correct in declining to discharge the jury for this ill-advised statement. This is, however, not the end of things. We shall return to this matter when we come to weigh up the conduct of the defence case generally.
Conclusion
Nonetheless it follows from our conclusions concerning the charge relating to Mr Brendan Dooley’s report that the jury’s verdict must be set aside and remitted for hearing.
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