Devries v Australian National Railways Commission

Court of Appeal (NSW)|2003-09-22|Before: Beazley JA, Santow JA

Background facts 2 The respondent was born on 13 April 1962 and was 36 at the date of the accident. The collision was severe. The trial judge described it in these terms: "The [appellant's] vehicle collided with a Ford Falcon Station Wagon proceeding along [the north bound carriage way of Windsor Road], to which the [appellant] should have given way. In order to avert a collision while also remaining on the road, the [respondent] swerved hard to the left, then hard to the right. His truck missed the [appellant's] vehicle but his trailer collided with it. The [appellant's] vehicle was forced under the trailer. Its front two axles were torn off and the collision caused the truck to jolt and bounce around. The [respondent] brought the truck to a stop about 50 metres further along the road." 3 The issue before the trial judge was whether the respondent had suffered any injury in the motor vehicle accident, and if so the extent of that injury. 4 The respondent had a pre-existing back disability. CT scans taken in 1986 showed a posterior central/left protrusion of the L4-5 disc, extending to deform the dural sac and also displacing the left L5 nerve root. There was also a mild posterior protrusion of the L5-S1 disc, but with only gentle flattening of the dural sac anteriorly at this level. The CT scan was performed after a lifting incident in his then employment. He had had two previous occasions of similar back and leg pain, in 1980 and 1985 respectively. Those two episodes had settled in less than a month. After the 1986 lifting incident, the respondent had 3 months off work due to back pain. Thereafter he appeared to have been pain free until shortly before the motor vehicle accident that is the subject of this claim, notwithstanding that for 10 years prior to the accident he had been engaged in work as a landscape gardener which involved heavy lifting and bending. 5 In October 1998, shortly prior to the motor vehicle accident, the respondent suffered another injury to his back whilst changing a truck tyre at his place of work. He was at that time employed by Rowley Earthmoving Pty. Limited as a driver and self-employed contractor. He had commenced that employment in about August 1998. 6 After the tyre changing incident, the respondent continued working but presented to his general practitioner, Dr. Rombola, on 2 November 1998 complaining of low back pain with radiation down his left leg for a period of about 3-4 weeks. Dr. Rombola considered that the symptoms and signs exhibited by the respondent at this consultation were consistent with left-sided sciatica. He prescribed pain relief. The respondent next saw Dr. Rombola on 6 November 1998 when his symptoms had worsened. He was commenced on stronger pain relief. He saw him again on 14 November 1998. 7 The motor vehicle accident then intervened on 16 November 1998. Part of the controversy surrounding the question whether the respondent sustained any injury in the motor vehicle accident arose because of the manner in which the accident was recorded in Dr. Rombola's notes. I will return to that issue shortly. 8 Between 19 November 1998 and 25 November 1998, the respondent's condition deteriorated and Dr. Rombola referred him to Dr. Compton, a neurosurgeon. Due to a further deterioration the respondent was admitted to Hawkesbury Hospital on 26 November under Dr. Walsh, orthopaedic surgeon. He was treated with bed rest in hospital and discharged on 4 December 1998. A CT scan taken on 20 November 1998, prior to his admission to hospital, presented a similar picture to that revealed in the scan taken in 1986. The report of the 1998 scan was in these terms: "Left para-median disc protrusion at the L5-S1 level with likely compression of the left S1 nerve root. Broad-based disc bulging at L4/5 without definite nerve root involvement."

Trial Judge's findings 9 There was no dispute as to the radiological findings or that the respondent had continuing pain in his lower back, extending down to his left leg. His Honour found that his ongoing disabilities were as a result of the motor vehicle accident. He said: "1. That the lumbar disc lesions shown in the CT scans cause him continuing pain. 2. That, to quote Dr Dorsch, they render him 'definitely unfit for work as a truck driver', or for work involving 'heavy or repeated lifting,… repeated bending or stooping, [or…] driving in poorly sprung vehicles or… for long periods of time'". 10 His Honour held that the respondent's "pain and disability after his motor vehicle accident exceeded what he would have suffered if the accident had not occurred and no other "triggering" event had occurred either". His Honour assessed the respondent's non-economic loss on the basis of 28% of a most severe case. 11 His Honour assessed the respondent as having a residual working capacity of about 55%. This assessment was challenged by the appellant as being excessive. However, there was no real dispute as to the extent of the respondent's ongoing incapacity. The dispute was as to its attribution. Having regard to the fact that a substantial portion of the respondent's working life had involved heavy work, his Honour's assessment was within an appropriate discretionary range. 12 His Honour applied a 35% discount for vicissitudes so as to take account of "the chance that some 'triggering' event might have acted on his pre-existing condition so as to produce comparable pain and disability". The "usual" discount for vicissitudes is 15%.

Issues on the Appeal 13 The appellant advanced ten propositions in support of its case that the respondent suffered no injury in, and no on-going disability as a consequence of, the motor vehicle accident. Those matters, as set out in the appellant's written submissions, were: "(a) At the time of the accident the respondent was driving a tip-truck which was towing a trailer. The collision involved the impact of a station wagon with the trailer, not the truck. (b) The respondent informed police and ambulance officers at the accident scene that he had not been injured in the accident. (c) The respondent drove the truck back to his depot and there informed his employer that he was 'OK'. (d) The respondent sought no hospital or medical treatment on that or the following day. (e) The respondent, when examined by a chiropractor on 18 November 1998 (the appointment having been made prior to the motor vehicle accident), made no reference to the motor vehicle accident. (f) The respondent's condition at an examination by his general practitioner (Dr. Rombola) on 19 November 1998, was recorded as "little improvement". In so far as there was a dispute as to when the general practitioner was first informed of the motor vehicle accident, the appellant submits that that date was 4 December 1998. see Dr. Rombola's letter dated 7 November 2001, the respondent's evidence he did not tell the doctor of the motor vehicle accident on 19 November 1998, the erroneous date of the motor vehicle accident given to the doctor (which error was unlikely to have occurred if the respondent had informed the doctor of the motor vehicle accident three days after its occurrence) and the terms of Dr. Rombola's letter of referral to Hawkesbury Hospital dated 26 November 1998. His Honour's "inclination" to accept a submission that the doctor was informed of the motor vehicle accident at the consultation on 19 August 1998 should be rejected. (g) The respondent, following admission to Hawkesbury Hospital on 26 November 1998, made no mention to hospital staff of the motor vehicle accident. (h) Dr. Rombola's letter of referral to Hawkesbury Hospital dated 26 November 1998 made no reference to any motor vehicle accident. (i) The respondent's back condition was wholly explicable by the pre-existing pathology and the wheel lifting accident. (j) Doctors Cummine and Zeman, who were qualified by the appellant, concluded that the motor vehicle accident would have caused, at most, a temporary aggravation of the underlying condition."

It is convenient to deal with these various arguments in turn by reference to the respondent's response to them. 14 No impact with the truck driven by the respondent. (para (a))

This submission is factually correct, however it does not diminish the fact that the accident, as found by his Honour, and as expressed in the description set out above, was severe. 15 Denial of any injury immediately after the accident (paras. (b) and (c).

The assertions in both these paragraphs are, again, factually accurate. The respondent meets both of them, however, by reference to the evidence of the respondent's wife. She said that when she spoke to the respondent shortly after the accident, he sounded "just different on the phone". She said when she arrived at his workplace "he just looked different, was very white and pale …". He told her, in effect, that he was feeling dreadful. Mrs. Adams said that she was worried about him as the day went on because he did not say very much and he was looking uncomfortable and "by night time he couldn't get on the bed or anything". She said that she found a foam mattress for him and he slept on the floor. 16 The trial judge accepted Mrs. Adams' evidence. In this regard, his Honour found: "Mrs. Adams also appeared truthful and reliable. In particular, her account of deterioration in the plaintiff's symptoms later on the day of the [motor vehicle] accident and until he went to hospital has a ring of truth". 17 The appellant challenged his Honour's acceptance of Mrs. Adams. This challenge involved a consideration of most of Mrs. Adams' evidence in which, on the appellant's submission, she downplayed the pain and disability the respondent had immediately after the tyre changing incident. It was submitted that this evidence was deliberately false so as to support the respondent's case that his on-going disability resulted from the motor vehicle accident. Senior Counsel for the appellant also submitted that Mrs. Adams' evidence, typified by her evidence that the pain after the tyre incident was "just like a dot", was in conflict with the contemporaneous medical notes of Dr. Rombola. It was submitted that it was also inconsistent with the respondent's complaints immediately after the tyre incident, his use of painkillers and his request for time off work after that incident. 18 The respondent met this challenge essentially on the basis that his Honour's acceptance of Mrs. Adams was a credit based finding made by the trial judge after hearing the witness: see Devries v Australian National Railways Commission (1993) 177 CLR 472. It was further submitted that when Mrs. Adams' evidence is read in its entirety, including the cross-examination, the attack which is now made upon her evidence is not well based. In particular, it was pointed out that her evidence that the pain after the tyre incident was "just a dot" was a comparison made with the difficulties the respondent had after the 1986 incident. Those difficulties were acknowledged as being severe. The rest of her evidence, both in chief and more particularly in cross-examination, was then directed to his condition after the motor vehicle accident. There was no evidence contrary to that given by Mrs. Adams. Senior Counsel for the respondent also pointed out that Mrs. Adams was not cross-examined on the basis that she was down-playing the extent of disability suffered by the respondent after the tyre changing incident. Accordingly, if the appellant wished to make the attack which was now made on the appeal, such matters should have been put directly to her. 19 The trial judge, having heard Mrs. Adams give evidence, was in a position to appropriately assess her evidence. There was no incontrovertible evidence to the contrary or anything that pointed to his Honour having misused the advantage he had as trial judge. Accordingly, the appellant has failed to make good the challenge to his Honour's acceptance of Mrs. Adams' evidence: see Abalos v. Australian Postal Commission (1990) 171 CLR 167. His Honour's acceptance of Mrs. Adams' evidence meets any contention that, as the respondent denied any injury after the motor vehicle accident, he must not have been injured. Whatever the reason for his denial, he was observed to be in pain, which increased in severity in the hours following the accident. It follows that the respondent's failure to complain to the ambulance officers or to his employer does not have the significance the appellant seeks to attach to it. 20 Failure to immediately seek treatment (para. (d).

The respondent submitted this was unremarkable given that he was already under medical care, had an upcoming appointment and had already been prescribed strong pain relief medication. I consider that this is a satisfactory response to the appellant's submissions. 21 Failure to mention the motor vehicle accident to the chiropractor, or to the Hawkesbury Hospital and the absence of any mention of it in Dr. Rombola's letter of referral to the Hawkesbury Hospital (paras. (e), (g) and (h).

The respondent submitted that the absence of any mention of the motor vehicle accident in Dr. Rombola's letter was not particularly relevant because there was no reference to any incident in the letter. Rather, there was merely a reference to the history of back pain. Further, in relation to the absence of any mention to the Hawkesbury Hospital, the respondent gave evidence that he assumed that the hospital had been informed of the accident by Dr. Rombola. This, too, is a satisfactory response in my opinion to this criticism of the appellant's case. 22 Date Dr. Rombola was first informed of the accident (para. (f))

Dr. Rombola's notes record visits on 2, 6 and 14 November 1998. The note on 6 November reads "Not improved worsening (L) sided sciatica with tingling (L) foot". There were further notations "x-ray", "physio" and "Mersyndol forte nocte". 23 The next entry, on 14 November, 1998 reads "Suggest P forte 20", apparently a reference to the prescription of Panadeine Forte. 24 The entry for 19 November 1998 then reads "Scripts repeated little improvement CT". To the side of that entry, in different coloured pen, was a statement "Traffic accident on 16.11.98." Thereafter there are entries for 25 November, 26 November (a phone consultation) and 4 December. Amongst the notations on 4 December is the entry "Whilst changing a truck tyre 2 weeks prior to 1st visit and had a traffic accident on 19/11". The appellant submitted that this was the date on which Dr. Rombola was probably informed of the accident. 25 The trial judge found that Dr. Rombola was informed of the accident at the consultation on 19 November 1998. His reasons for so finding essentially derived from the fact that on 10 January 1999, Dr. Rombola forwarded a report to the senior claims officer for the workers' compensation insurer of the respondent's employer Rowley Earthmoving Pty. Limited. In that letter, Dr. Rombola gave a history of the various consultations that the respondent had had with him. In the report he stated: "On 19 November 1998, [the respondent] returned and stated that he had been involved in a truck accident earlier that week where he tried to avoid a vehicle but unfortunately the car run (sic) under his trailer. This had made his back symptoms worse …." 26 At the time of writing that report, there was no suggestion that the respondent was proposing to commence proceedings for damages arising from injuries sustained in the motor vehicle accident. Nor was there any issue at the time as to when Dr. Rombala was told of the motor vehicle accident. 27 Dr. Rombola had also written to the respondent's solicitors on 25 August 2002 in response to a request by them to clarify when it was that he was first told of the motor vehicle accident. Dr. Rombola in his letter stated: "I think that Mr. Adams had mentioned the truck accident to me on 19 November 1998, but that I had not recorded this nor the date. I think that the focus of the consultation was Mr. Adams immediate problem with his pain and the lack of improvement. In fact I feel that he may not have mentioned an actual date. I cannot be 100% certain of this and I acknowledge that my file entry does not support nor deny this."

Dr. Rombola continued: "There is other evidence in the notes to support this as the date and to support the fact that there was early uncertainty of the exact date."

Dr. Rombola then set out a series of matters, including his report of 10 January 1999 and other medical reports and/or letters which he had either written or had received in relation to the respondent. All of the matters to which he referred pre-dated, by a significant period, the date of the commencement of the District Court proceedings which are the subject of this appeal. 28 Notwithstanding that the date Dr. Rombala was told of the motor vehicle accident subsequently became one of the very matters in issue in determining whether the motor vehicle accident had caused or exacerbated his injury, Dr. Rombola was not required for cross-examination. 29 It was open to his Honour, on the evidence to accept Dr. Rombola's statement that he believed that the truck accident was mentioned to him on 19 November 1998. 30 The condition was wholly explicable by pre-existing pathology and the tyre changing incident, with the motor vehicle accident causing at most a temporary aggravation (paras. (i) and (j)).

These submissions required an acceptance of the appellant's medical witnesses over those of the respondent in circumstances where the trial judge had accepted the respondent's doctors. 31 The thrust of the appellant's attack was that Professor Dorsch a neurologist, Dr. Scougall an orthopaedic surgeon and Dr. Yeo a rehabilitation specialist, each of whom had been qualified by the respondent to provide medico-legal reports, did not have an accurate pre-accident history in that, although the respondent had continued at work after the tyre changing incident, he did so in circumstances where he had been prescribed and was taking strong pain relief medication and had also asked for time off work. The appellant made an anterior submission that when Drs. Scougall and Yeo provided their initial reports they were not even aware of the previous incident in October. It followed on the appellant's submissions that the evidence of these doctors ought not to have been accepted. 32 The respondent made a number of responses to the appellant's challenge. First, he said that although the respondent had asked for time off work, his employers had not been able, as at the date of the motor vehicle accident, to provide that to him so that the respondent had in fact continued on at work after the tyre changing incident. 33 Secondly, notwithstanding the omission in the information originally provided to Drs. Scougall and Yeo, by the time of giving their final reports in the matter, each had been provided with a complete history other than the request for time off work. In particular, each was aware of the treatment which had been provided by Dr. Rombola, including the prescription of pain relief medication. 34 To this extent I am of the opinion that the absence of a complete history at the time these experts first gave their reports, does not affect his Honour's acceptance of their ultimate opinions. That leaves the question whether the fact that none of the respondent's medical experts knew that the respondent had taken time off work means that his Honour's acceptance of their opinions should be set aside. Given the appellant's failure to cross-examine any of these experts, and given that the respondent had in fact been able to continue at work, I do not consider that this omission provides a sufficient appellate basis to displace his Honour's acceptance of the respondent's medical evidence. The appellant's contention, therefore, that the medical evidence of his experts should have been accepted rises no higher than being a complaint that one body of medical evidence should have been preferred over the evidence given by others. That of itself, is never sufficient. 35 In further response to the appellant's challenge to the medical evidence, the respondent also submitted that Dr. Zeman, a specialist in rehabilitation medicine qualified on behalf of the appellant, agreed in cross-examination that an accident of the severity of this accident was likely to cause back injury and, more particularly, in the case of someone with a pre-existing lumbar disc problem, was likely to cause a significant exacerbation of that disc problem. In re-examination, Dr. Zeman said that, if there was an exacerbation of a pre-existing lumbar disc injury, it would be expected that the exacerbation would occur "at the time not hours or days afterwards". The appellant relied upon this as evidence that the respondent's ongoing incapacity could not be related to the accident. However, that evidence fell to be assessed with the evidence as a whole. Mrs. Adams' evidence supported a case that the respondent suffered an immediate exacerbation of his problems. In those circumstances, the qualification made by Dr. Zeman in re-examination, even if accepted, was one which was satisfied on the evidence before his Honour. In those circumstances, I consider that there has been nothing in the challenge to the medical evidence accepted by the trial judge which requires or even permits that finding to be set aside. 36 However, there is a further issue which is not resolved by the rejection of the appellant's challenge to his Honour's acceptance of the respondent's medical evidence. His Honour found that "[T]he sciatica already contracted [by the respondent] by the time of the motor vehicle accident would have continued for some period even if this accident had not occurred, though not so as to produce continuing pain and disability". The effect of this finding was that his Honour attributed all of the respondent's on-going disability to the accident. This finding is also challenged. Senior counsel for the respondent, was not able to point to any medical evidence which supported his Honour's finding. In fact, all the medical evidence is to the contrary. Senior counsel for the respondent sought, however, to support the finding in another way. He submitted that the respondent's history was that, when he had previously had back problems in 1980, 1985 and 1986, he had recovered completely so that it was probable that he would recover from the tyre incident in October. In my opinion, a finding of this nature could not be made without the support of medical evidence. As I have already stated, and as was acknowledged, there was none. In those circumstances, it seems to me that the quantum of his Honour's award cannot stand. 37 That leads to the question of what an appropriate award of damages should be. Both parties urged that this Court make that assessment, (albeit with momentary wavering on the issue by senior counsel for the appellant). Senior counsel for the appellant submitted that an appropriate way of reassessing the damages was to increase the percentage deduction for vicissitudes made by his Honour across the whole of the amount of damages. Senior counsel for the respondent accepted that this was an appropriate approach for the Court to take. He submitted that there ought not be any increase in the discount applied by the trial judge, as vicissitudes had been assessed at a very high level (35%) so as not to warrant any interference, even on the changed basis on which the respondent's claim was to be assessed. He also submitted that, in respect of non-economic loss, his Honour's finding that the respondent was 28% of a most extreme case was moderate in the extreme. Although no cross-appeal had been filed, he submitted that that assessment remained appropriate, even taking into account the fact that some of the disabilities from which the respondent now suffered were attributable to the tyre changing incident. 38 Notwithstanding counsel's brave attempt to sustain the verdict amount, I do not consider that it can stand. I have found that his Honour erred in attributing the whole of the on-going disability to the motor vehicle accident. The respondent's medical experts provided a range of assessments as to the extent to which each incident had made an contribution to his on-going disabilities. Dr. Scougall considered both incidents were substantial contributing factors, Dr. Yeo considered that 50% of his present level of disability was attributable to the motor vehicle accident and Professor Dorsch considered that the major cause of the respondent's continuing level of disability was the motor vehicle accident, contributing about two-thirds overall. He based this assessment in part upon the fact that the respondent was able to continue at work for 12 hours a day after the tyre changing incident. That basis, as I have already explained, contains some distortion of the true position. 39 Although I have concluded that the fact that none of the doctors were aware that the respondent had in fact requested time off work prior to the motor vehicle accident was insufficient to interfere with the trial judge's acceptance of their evidence, it is a matter which, in my opinion, is to be borne in mind for the purposes of the reassessment which this Court has been requested to make. Having regard to the medical evidence accepted by his Honour, I consider that an appropriate discount for vicissitudes is 50%. 40 That raises the next question as to whether that discount should be applied to all components of the damages awarded. In my opinion, it is appropriate to do so in respect of all items which relate to economic loss and out of pocket expenditure. I do not consider, however that it is an appropriate approach to the assessment of non-economic loss. In that regard, as I have said, his Honour considered that the respondent should be assessed on the basis of 28% of a most extreme case. Consistently with the approach I have considered appropriate, that assessment should be reduced. In my opinion, an appropriate assessment is 23%. The award of future economic loss and non-economic loss, thus, remain above the thresholds specified in the Motor Accidents Act 1988. 41 That leaves one final matter for determination. The trial judge awarded economic loss to the respondent on the basis of nett earnings of $883.00 per week. This amount was applied to both past economic loss and future economic loss. His Honour awarded past economic loss, based on this figure, in a total amount of $139,746.00. This amount was challenged as was the amount for future economic loss based on the same figure. It was said that the amount was based upon a nett weekly payment, after deducting tax of 20% under the Prescribed Payment System which applied to the respondent, given the terms of his employment with Rowley Earthmoving. It was said, however, that the appropriate taxation rate was 43%. The appellant handed a schedule to the Court setting out awards of past and future economic loss based on this rate. 42 In dealing with the amount to be awarded for past loss of earnings, his Honour stated that "the amount submitted by [counsel for the respondent at trial] …, not disputed by [counsel for the appellant at trial] is $139,746". Senior counsel for the appellant submitted that the amount was indeed in dispute. When pressed, neither counsel was able to provide much assistance to the Court as to whether this amount had or had not been disputed by the appellant at trial, except by reference to that counsel's "usual practice" of "never agreeing to anything". Senior counsel for the respondent frankly conceded that it is likely that there was no dispute as to the mathematical quantification but that it was likely there was no agreement beyond that. All this stands at odds with his Honour's statement, notwithstanding senior counsel's concession. His Honour's judgment is a well written, carefully reasoned judgment so that it might be thought that it would be unlikely for his Honour to make such an error. Further, there was no evidence adduced by the appellant to enable his Honour to make an assessment based upon a tax rate of 43%. Such evidence as was before his Honour supported the amount awarded, and thus supported his Honour's stated premise that there was no dispute as to the amount. 43 The question is however, what is the most appropriate way to deal with this issue. It was submitted to this Court that the amount can be appropriately determined by having regard to tax rates, and the appellant's schedules now provide the necessary calculations. Had this been the only challenge to his Honour's award, the appellant would, I suspect, have been harshly dealt with in respect of costs. That, at least, would have been the position taken by me. However, as damages have to be reassessed on the view I have taken, it is both appropriate, and I consider incumbent upon this Court, to award damages using the appropriate tax rate. As I understand it, senior counsel for the respondent did not dispute that the appropriate rate was 43%. However, as he was confronted with that material during the course of the appeal I propose to direct the parties to bring in Short Minutes to accord with these reasons, reserving liberty to the respondent to apply in respect of the appropriate taxation rate should the parties not be able to agree. Accordingly, I would propose the following Orders:

Set aside the verdict and judgment of the trial judge.

Order that there be a verdict for the respondent in a sum to be assessed in accordance with these reasons.

Liberty to apply on 2 days notice in respect of the appropriate rate of taxation to apply to the nett earnings figure in relation to economic loss.

The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if so entitled.

The parties are to bring in Short Minutes of Order within 7 days of today's date to accord with these reasons. 44 SANTOW JA: I agree with Beazley JA.

Last Modified: 09/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : TOMES v. ADAMS [2003] NSWCA 269 HEARING DATE(S) : 06/08/03 JUDGMENT DATE : 22 September 2003

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