AGOSTINO v PHAM; AGOSTINO v PHILLPOTT [2002] NSWCA 114 | Case summary

In the result, the trial Judge found in favour of the defendant in each action and gave a verdict for the respective defendant. The plaintiff appeals from the decision in both actions. 2 The defendant, Tyet Mai Tran Pham, and the defendant, Jacob Phillpott, each admitted for the purposes of the proceedings that he was in breach of his duty of care to the plaintiff. Each defendant denied that the plaintiff had suffered loss, damage or injury as alleged. Furthermore, each defendant denied that the plaintiff's ability to lead a normal life had been or would be in the near future significantly impaired for a continuous period exceeding twelve months; s79A(3) of the Act. The defendant Phillpott further said that the plaintiff's claim did not reach the threshold of 15 per cent for non-economic loss; s79A(4) of the Act. The oral evidence consisted entirely of the evidence of the plaintiff and of a co-worker, Sandra Poynton, whom the plaintiff called. Neither defendant called any oral evidence. As is now common in such cases, both the plaintiff and the defendants tendered bundles of medical reports, which included additional medical reports obtained by the defendants and the copies of one of the plaintiff's doctor's clinical notes. No medical practitioner was required to attend and give oral evidence. 3 The plaintiff's evidence began badly. She swore that in 1995 for the first time she noticed that she suffered from back pain during her periods. She had the back pain once a month and also on an occasion when she was found to be suffering from gallstones leading to the removal of her gall bladder. The pain when it occurred lasted for two days. The back pain continued in the intermittent way described until 22 March 1997 on which date the plaintiff was involved in a motor vehicle accident for which she made no claim. She said that during 1996 she did not have any treatment nor was she taking any medication. 4 According to a report of Dr Weinman of 11 September 1997, the plaintiff saw him on 22 March 1997 after the motor vehicle accident on that date and on 28 April 1997 when she stated she had been involved in a motor vehicle accident on 22 April. According to Dr Weinman's report, the plaintiff complained of pain in the left frontal area of her head where her head had hit the windscreen. She also complained of persistent lumbar pain which had continued since December 1996. She stated she worked in a retail store where she had to bend many times through the day to pick up articles of clothing from low shelving. Dr Weinman said clinical examination revealed tenderness in the L4/L5 area. The plaintiff was advised to lose weight and undertake a course of physiotherapy. The plaintiff returned to see Dr Weinman on 21 May 1997. He reported that once again she had been involved in a motor vehicle accident on 20 May. "She complained of back ache and pain in the right forearm. Clinically there was a bruise on her left leg ….. [and] tenderness in the lumbar area." Dr Weinman said that the plaintiff had had backaches since July 1995 "which she states had worsened since the motor vehicle accident and wished to be referred to a Neurosurgeon." 5 On 13 November 1995 a neurosurgeon, Mr Chaseling, had reported to Dr Weinman that he had seen the plaintiff that day and that in July 1995 she had the onset of low back pain. Mr Chaseling wrote: "She does not relate this to any specific injury or incident. Indeed, she was assessed for this pain and found to have gallstones and underwent a laparoscopic cholecystectomy [which] did not relieve her pain." 6 Mr Chaseling reported that over the last four months her pain if anything had improved. From time to time the plaintiff got some intermittent right buttock pain. More recently she had complained of headaches but the doctor believed that these were not related. She had mild low back pain constantly but from time to time it was much worse. It did not prevent her from working and indeed she was still attending a gymnasium. Mr Chaseling reviewed her CAT scan which suggested a central disc prolapse at the L4/L5 level. He did not advise surgery. 7 This material potentially undermined the plaintiff's evidence in chief. Counsel for the defendant Pham cross-examined accordingly. The plaintiff conceded that by December 1996 the problems with her back had gone beyond simply being related to her periods. Ultimately, the plaintiff conceded that more than three years after the three accidents she could not be sure as to what the condition was in respect of her back between April and May 1997. She said: "I don't think anyone can". Counsel for the defendant Phillpott got the plaintiff to concede that in July 1995 it was pain of immediate onset which followed an activity when she was cleaning a floor or polishing a floor and had nothing to do with period pain at that time. She was asked: "Q. You were assessed for this pain and you were found to have gallstones? A. And, oh, and three rolled in discs. Q. You had the disc problems at that time as well, yes, I'm coming to that? A. Yeah, yeah, oh okay. Q. But you had gallstones. You underwent a surgical procedure? A. Yes. Q. And that procedure did not relieve your back pain? A. No. Q. That's true, isn't it? A. Well yes. Q. You told him that over the past four months the pain, if anything, had improved. From time to time you got intermittent right buttock pain? A. Right, yeah. Q. Precisely in the area that you indicated to her Honour and to us earlier as being the site of your pain now? A. Yes. Q. That's right, isn't it? A. Yes." 8 According to a chronology filed by the appellant and not challenged by the other parties, the plaintiff, who was born on 12 December 1974, after obtaining her Higher School Certificate in 1993 enrolled at the University of Western Sydney in Commerce and completed the course with a degree in 1996. After the motor vehicle accidents she continued to work, with an interlude for an overseas trip in August 1997, with the Body Shop - originally as a sales assistant at Burwood and from December 1997 as an assistant manager at Macquarie Centre when she was employed full time. Previously it seems that she had been employed on a casual basis. She ceased employment with the Body Shop on 15 January 1999 and undertook a nail technician course which led to her employment as a nail technician in April 1999. The trial began on 23 November 2000. Her Honour gave judgment as I have indicated on 29 November 2000. 9 At the beginning of her judgment the trial Judge noted that the plaintiff's counsel confined her claims to those concerning her back and her psychological state. Her Honour said: "Thus the dispute concerns whether and to what extent the disabilities affecting Miss Agostino's back and psychological state were caused by the motor vehicle accidents of 22 April 1997 and 20 May 1997." 10 The trial Judge observed that there was no dispute between the parties that the plaintiff had complained of lower back pain from at least July 1995 and reference was made to various doctors' reports. She said that the plaintiff's claim was that her back pain had become much more persistent and severe since she was involved in the accidents in April and May 1997. Under the heading "Medical Opinion" the trial Judge referred to the reports of four doctors whom she said supported the plaintiff in her claim "that part of her back pain was caused by the accidents" and gave short extracts from those reports. She then referred to medical reports presented by the defendants and said that they "do not come to any very different conclusions". Various passages were cited from those reports. The trial Judge said that throughout the period 1990-2000 the plaintiff attended doctors and other advisers about problems with excessive weight gain and its impact on her back. Next she referred to the plaintiff's evidence and that of her work colleague, Ms Poynton. She summarised that part of the plaintiff's evidence was that after the accident in April there was more back pain than she had experienced during 1995-1997. The plaintiff had said that her physical capacity had been reduced through the back pain and she had difficulty with simple everyday tasks such as brushing her teeth and making her bed. She was also unable to perform any lifting tasks at work and had difficulty standing for periods of more than an hour. Colleagues at work assisted by swapping duties with her so that she could avoid such tasks. Ms Poynton confirmed the plaintiff's descriptions of the restrictions she suffered at work. At various times in 1996 and 1997, before and after the accidents, Ms Poynton had been the plaintiff's supervisor at two branches of the Body Shop. 11 The trial Judge said that problems with weight had also figured in the plaintiff's emotional life. Dr Robertson, a consultant psychiatrist, diagnosed her as suffering from depression. This he attributed to the three motor vehicle accidents of 1997. Dr Robertson believed these conditions prevented her from following her chosen career. Dr Dyball said that the plaintiff suffered "a dysthymic disorder a form of chronic reactive depression secondary to her back problems…..her psychological distress is largely likely to parallel her back condition and is dependent upon it". Dr Maguire, a consultant psychiatrist, rejected the view that the plaintiff had suffered post-traumatic stress disorder and believed "one could make a diagnosis of a mild specific phobia related to motor vehicle travel". He found that there was probably an association between her weight gain and loss of confidence as well as irritability. 12 Under the heading "Findings" the trial Judge said as follows: "After reviewing the evidence of the medical specialists and hearing from Miss Agostino and Ms Poynton in Court I am not satisfied on the balance of probabilities that the disabilities Miss Agostino suffers were contributed to in any substantial way by the two motor vehicle accidents in April and May 1997. At its most persuasive the evidence is that the accidents aggravated a pre-existing back condition. Even the doctors who give the claim most support acknowledge that there was a pre-existing degenerative disease despite Miss Agostino's youth (reports of Drs Ellis, Giblin and Pell). Those reporting for the defence do not put the case much less generously (reports of Drs Ditton, Bornstein and Cummine), although two of them express the view that Miss Agostino must lose significant weight if she is to reduce her back pain. The evidence of changed psychological state is also compounded by the evidence of excessive weight. There is a pre-existing back problem, possibly aggravated by the accidents, but whether contributed to by them or not, a problem which reduces Miss Agostino's ability to exercise. The resultant weight gain causes loss of self confidence and depression. On this matter I find the reports of Drs Maguire and Dyball much more persuasive than that of Dr Robertson. I am unable to find anything in the evidence of Miss Agostino herself to support the views expressed by Dr Robertson. Contrary to his opinion, Miss Agostino seems to have prospered immediately after the May accident. She was promoted in her employment and took up a full time appointment. She left that job in January 1999 to look after her health, but by April 1999 was working again in her sister's salon. I do not feel I can give any weight to the comment made by Dr Robertson that depression prevented Miss Agostino from pursuing her chosen career. In evidence she was unable to identify any plans for a career. It could be that she is content to continue working part time for her sister. My impression of Miss Agostino is that at this stage she may not have employment ambitions. I am not persuaded that her employment prospects have been influenced by depression caused by the shock of the accidents. Although there is some evidence that the two accidents aggravated a pre-existing condition of the back, I do not find myself satisfied on the balance of probabilities that either or both of the accidents contributed the necessary statutory 15%. Three of the doctors attempt to quantify the level of disability Miss Agostino suffers in her back, but only Dr Alam calculated the percentage attributable to the accidents independently of the pre-existing condition. He says the disability is 30% of the most extreme case and adds that her injuries are consistent with the May accident, but there is no attempt to link the two comments and Dr Alam does not record the history of previous back pain in his report. In cross-examination Miss Agostino could not remember whether she had informed Dr Alam of her history of back pain. Dr Ellis assesses the disability at 40%, but does not apportion the causes between the pre-existing condition and the accidents. Dr Giblin assesses the impairment at 20% but attributes 1/5 of that to a pre-existing condition, which places his assessment within 1% of the statutory minimum. As two other doctors place the disability at 10% there is no real basis on which to make a finding of 15% or above." 13 The plaintiff's grounds of appeal in each appeal were identical and as follows: "1. The trial Judge erred in requiring the appellant to prove that the appellant's back condition was wholly the result of the subject accident. 2. The trial Judge erred in failing to find that the appellant's back condition was materially contributed to by the subject accident. 3. That the trial Judge erred in requiring the appellant to prove a 'statutory 15 per cent' when no such requirement exists at all. 4. The trial Judge erred in holding that percentage impairment, expressed by doctors, as to the appellant's back condition directly correlated a 'statutory 15 per cent'. 5. That the trial Judge erred in failing to award out-of-pocket expenses in any event. 6. That the trial Judge erred in failing to award wage loss in any event. 7. That the trial Judge erred in failing to apply the correct test to the appellant's disability that is approaching the appellant, injured by the accident, as a proportion of an extreme case. 8. That the trial Judge erred in failing to have any regard at all to the statutory requirement of a proportion of an extreme case. 9. That the trial Judge erred by attempting to take percentages expressed by the doctors in the case and then apply a 15 per cent standard to those percentages. 10. That the trial Judge erred by failing to give any or any adequate reasons." 14 According to the particulars filed in each claim the appellant sought damages for loss of earnings, loss of earning capacity and identified out of pocket expenses. She also, no doubt, sought damages for non-economic loss. It is convenient to cite from two sections of the Act, s77, which provides: "No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of: (a) a person who suffered injury in the accident and who: (i) was the driver of or a passenger in or on a vehicle involved in the accident,...."

It is unnecessary to refer to indexation adjustments of the amount in subs(5). 15 Accordingly, to deal with the plaintiff's claim for non-economic loss it was necessary for her Honour to determine whether the plaintiff's ability to lead a normal life had been, or in the near future was likely to be, significantly impaired for a continuous period of not less than twelve months by the injury suffered in the accident. It was necessary to do this in each proceeding. Unless in that proceeding the plaintiff satisfied this pre-condition, she was not entitled to any award for non-economic loss. If her Honour was satisfied that this first hurdle was overcome in the particular claim, it was next necessary to determine whether the severity of the non-economic loss of the plaintiff was at least 15 per cent of a most extreme case. Again, if in the particular case the plaintiff did not satisfy this condition she was not entitled to damages for non-economic loss. However, the plaintiff's claim extended to economic loss and to out of pocket expenses. 16 In the first paragraph which I have quoted from the findings, the trial Judge referred to evidence that the accidents aggravated a pre-existing back condition. There is no doubt, as her Honour said, that such a condition existed. But her Honour did not deal with the evidence she referred to of aggravation of the pre-existing condition. She merely said that she was not satisfied that the plaintiff's disabilities were contributed to "in any substantial way" by the two motor vehicle accidents in April and May. She did not directly confront the evidence of the plaintiff and Ms Poynton about the plaintiff's disabilities after the motor vehicle accidents. Ms Poynton said that in June 1997 the plaintiff was restricted in some of the duties she could do in the Body Shop at Parramatta. She said there were times when the plaintiff could not do particular tasks that she had done previously. This happened on a fairly regular basis after June 1997 and the plaintiff complained to her about her back. About this, Ms Poynton was not cross-examined. The plaintiff said that after the third accident the pain in her back was different from the pain she had had before that accident. The trial Judge did not expressly reject the evidence of either the plaintiff or Ms Poynton. If it must be implied that she did, she did not reveal the basis for doing so. 17 In the second paragraph of the findings, the trial Judge dealt with the evidence of changed psychological state. She observed that there is a pre-existing back problem, "possibly aggravated by the accidents", but whether contributed to by them or not, a problem which reduced the plaintiff's ability to exercise. The paragraph suggested that her Honour did not dismiss the claim that the pre-existing back problem was aggravated by the accidents and accepted that the weight gain, resulting from the back problem, caused loss of self confidence and depression. The paragraph went on to reject Dr Robertson's view that the plaintiff suffered from depression because the plaintiff seemed to prosper immediately after the May accident. Like many of the doctors, Dr Robertson's history seems in places not to have been supported by the evidence. He said that at the time of the accident the plaintiff was working part time at the Body Shop to put herself through university and that she graduated at the end of 1997 when in fact she had graduated at the end of 1996. He said that the plaintiff did not have enough confidence to seek work in the field of human resource management and took an assistant manager position in the Body Shop. She was on her feet all day and her back progressively worsened so that she was obliged to leave this job after about eighteen months. She took three months off work in 1999 and did a nail course. At the time he made his report on 30 August 2000 she was working with her sister who owned a hairdressing salon. This provided her with only a small income. 18 The statement by the trial Judge that the plaintiff left her job in 1999 to look after her health makes no attempt to assess whether the health problem flowed from the aggravation of the pre-existing condition. In her evidence the plaintiff said that if she had not had the series of accidents she would probably have pursued a career with her commerce degree and not stayed with the Body Shop group. I do not understand on what basis her Honour felt that she could not give any weight to the comment made by Dr Robertson that depression prevented the plaintiff from pursuing her chosen career or found that the plaintiff was unable to identify any plans for a career. At the end of that paragraph there is an unexplained reference to depression caused by "the shock" of the accidents which overlooks, or seems to, s77 of the Act and the plaintiff's entitlement as the driver of, or passenger in, the vehicle involved in the two accidents to damages for psychological or psychiatric injury, in this case depression, in respect of the accidents. This had nothing to do with shock although it is true that the particulars of injury refer to no psychiatric injury other than "shock". The evidence had gone beyond these limited particulars. 19 The first sentence of the third paragraph of the findings presents a particular problem in understanding the reasoning process. Her Honour did not deal with the threshold question raised by s79A(3). Mr Neil QC, who appeared for Pham, submitted that her Honour must have had that threshold in mind and meant to deal with it by saying that on the balance of probabilities the disabilities suffered by the plaintiff were not contributed to in any substantial way by the motor vehicle accidents. But in any event, her Honour did not deal with the claims for economic loss and out of pocket expenses. 20 The first sentence in the third paragraph again is concerned only with the claim for non-economic loss. But her Honour does not identify what non-economic loss was claimed, that is to say, in accordance with the definition in s68, what pain and suffering, loss of amenities of life and, perhaps not here relevant, loss of expectation of life and disfigurement the plaintiff claimed to have suffered and then express in terms of s79A(4) whether the severity of that loss was or was not less than 15 per cent of a most extreme case. 21 The matter becomes more puzzling as the third paragraph continues. Various doctors gave evidence of percentages of the most extreme case. Her Honour referred to some of these percentages apparently on the basis that they were necessarily related to the severity of the non-economic loss as a proportion of a most extreme case. 22 I am satisfied that the trial Judge failed to give sufficient reasons for her conclusions or indeed explain in an adequate way why the plaintiff did not reach the appropriate thresholds under s79A and why, if she was not entitled to damages for non-economic loss, she also was not entitled to recover damages for economic loss and out of pocket expenses. 23 Mr Neil stressed the severity of the pre-existing condition of the plaintiff's back comparing this with the absence after the Pham accident of contemporaneous complaint about the lower back and stressed the lack of evidence of economic loss. Mr Hislop QC, who appeared for the defendant Phillpott, referred to the form of the filed defence as explaining the use of language by the trial Judge when dealing with s79A. In short, the defendants argued that in the result there was no miscarriage of justice and referred us to Pt 51 r23 of the Supreme Court Rules 1970 which provides that the Court of Appeal should not order a new trial "unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned." Mr Neil suggested that even if we were to order a new trial of the claim arising out of the Phillpott accident we should not do so in respect of the claim arising out of the Pham accident. Both counsel spent time taking us to parts of various doctors' reports and parts of the evidence to suggest that new trials would produce no different result. 24 In the end, the plaintiff's claim depended very much upon the acceptance of her evidence as to the consequences, in terms of pain to her back, which followed from the two motor accidents. To a significant extent her claim was supported by her co-worker, Ms Poynton. The trial Judge did not deal with this evidence squarely and express a conclusion with reasons as to whether she rejected it and if so why. She may have been working on the basis that aggravation of a pre-condition could not entitle the plaintiff to recover damages. If she did proceed on this basis she erred. It is not clear. There was evidence that the plaintiff's condition ultimately led to her being forced to give up her work at the Body Shop in favour of less remunerative work. Again, this is not dealt with in any direct fashion. I do not think this Court, where no proper findings have been made about the plaintiff's evidence, should conclude that on a new trial it would inevitably be rejected. Nor do I think that this Court should engage on any re-trial process itself by looking at doctors' reports, without seeing or hearing the plaintiff give evidence. No attempt was made in the judgment to assign responsibility to one defendant rather than the other. Again, I do not think we should express views as to how that might be determined on a new trial. The trial Judge's failure to give proper reasons was an error of law which in the ordinary course entitles the plaintiff to a new trial. In my opinion, there should be a new trial of both actions. 25 I propose the following orders: 1. Appeals allowed; 2. Set aside the verdicts and judgments of Acting Judge Gamble of 29 November 2000; 3. Order that there be a new trial of both proceedings; 4. The respondents to pay the costs of this appeal; 5. The costs of the trial before Acting Judge Gamble be paid in accordance with the determination of the judge hearing the new trials. 26 HEYDON JA: I agree with Sheller JA. 27 FOSTER AJA: I agree with Sheller JA.

AGOSTINO v PHAM; AGOSTINO v PHILLPOTT

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Judgment (18 paragraphs)

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