Downe v Pearce [2001] VSCA 10

13. The plaintiff now appeals against the jury's award of damages. The principal issues before the Court, as appearing from grounds of appeal which were amended by consent during the hearing of the appeal, are whether the jury's award of damages of (a) $12,000 for loss of earning capacity or (b) $75,000 for pain and suffering and loss of enjoyment of life were not reasonably open to the jury on the whole of the evidence.

16. 5 The principles which govern an appellate court when it is called upon to review an assessment of damages by a jury for personal injuries are well-established. As Gibbs, J. said in Precision Plastics Pty. Ltd. v. Demir[1], the Court of Appeal will not interfere simply because it would have awarded a different figure, no matter whether the original assessment was made by a judge or a jury. Dealing with a case where the award was made by a jury, Gibbs, J. said -

"In such a case (assuming that there was no misdirection) the appellate court will only interfere if it arrives at the conclusion that the damages are so large or so small as to be unreasonable - so excessive or so inadequate that no jury could reasonably have awarded them or, as it is sometimes said, out of all proportion to the circumstances of the case."

20. In Progress and Properties Ltd. v. Craft[2] Jacobs, J. said that in the case of a jury's verdict -

"The Court of Appeal has no power to review the evidence except for the purpose of determining what view on the evidence or on any particular aspect of it was reasonably open to the jury. The Court must assume that the jury took a view of the evidence most consistent with the size of the verdict which it returns. The main question in the present case for the jury was what degree of possibility the respondent had of continuing to exercise any earning capacity."

24. The injuries upon which the plaintiff's case was based were first a single injury to the lower back which it was claimed was aggravated and deteriorated when he returned to work; and secondly, a post-traumatic stress disorder, depression and anxiety. The plaintiff was claiming that for much of the intervening period between the accident and trial he had been unable to work because of his injuries and the amount claimed for this period by the plaintiff's counsel in his address to the jury was $210,657. The case made for the plaintiff was that he was now totally unable to work and would remain so up to the age of 65, and therefore that his future loss, after a deduction of 15% for vicissitudes was $461,780, the amount claimed for economic loss therefore amounting to $672,437. For pain and suffering and loss of enjoyment of life, the plaintiff's counsel asked for damages in excess of $250,000. The defendant's counsel, on the other hand, accepted that the plaintiff had a substantial psychiatric injury and some lower back injury, but not a serious one. For pain and suffering and loss of enjoyment of life, the defendant's counsel put to the jury that, admitting that there was a psychiatric injury, he put a figure of between $75,000 and $100,000 and said "Look at that type of range". For the injury to the neck and the back, influenced and prolonged by the psychiatric injury, counsel put that the jury should look at a range between $25,000 and $50,000. In relation to the plaintiff's past economic loss, after mentioning the figure claimed of $210,657, counsel submitted that the jury should award him a reasonable sum for his past economic loss if they thought that the psychiatric injury had played a part in the plaintiff's failure to rehabilitate himself. He suggested that the jury should award nothing for future loss. In relation to the plaintiff's lower back injury, the defendant's main submission was that the back injury was a minor one and that his present problems with his back had been caused or aggravated by work-related activities after his return to work.

27. I turn now to the evidence given at trial. The plaintiff described the happening of the accident, which was horrific, and how the deceased woman's motor car veered onto the incorrect side of the roadway. A head-on collision occurred and her motor car was crushed, and the plaintiff's vehicle careered off the road and turned onto its side. The driver of the car and her ten-day-old baby were both killed in the collision. After extricating himself from the cabin of his semitrailer, the plaintiff walked to the rear of the trailer where he could see what was left of the car and the driver's remains. He said in evidence -

"There was nothing recognisable really as a human body. There was no head and the upper torso was just a reddish-grey pulpish mess."

He subsequently saw a baby's crib removed from the wreckage and realized that it too was dead. After the accident, the plaintiff had to try to deal with guilt feelings and experienced considerable difficulties in sleeping. At night he would visualize the baby's capsule, her body, the wreckage, and constantly experienced dreams of the accident scene and the dead driver's headless body trying to talk to him. He said he experienced these flashbacks three or four times a week, while suffering much guilt and sorrow, had sleepless nights for about six months and, he said, still continues to have trouble. He commenced seeing a psychologist, Sandra Lorensini, two days after the accident.

32. The plaintiff said that immediately after the accident he was very sore through the leg and in the chest. He said that probably about a week later his back started to become sore. However he returned to work part-time some three months after the accident when his back was not too bad. Then after a further three-and-a-half months he had to stop work again because of his back. After a further two months he returned to work where he was placed on yard duties involving sweeping up broken bricks and re-packing packs of bricks, but did not cope very well, the constant bending being a problem for his back. He was put off work again in April 1995. He has not been back to work since April 1995 and continues to suffer constant pain in the centre of his back, down the left leg and pins and needles.

35. The plaintiff said that he had been married to his wife Katie for some three years before the accident but after the accident became very withdrawn and communication between his wife and himself broke down completely. He was unable to communicate or explain to his wife how he felt and she for her part could not understand why he was withdrawn. They parted and subsequently divorced. In September 1998 he attempted suicide, allegedly due to a combination of his divorce and not being able to stop feeling guilty and all the thoughts and images of the accident which were always in his head. Some six months before the trial he was befriended by Heather Franks with whom he commenced to live in the middle of October 1999. The plaintiff said that at the time of trial he was still stiff and sore on the right side of his neck, and had pain in his back all the time. He said he normally lay down once a day for at least an hour because of the pain. His back pain was aggravated by sitting, walking, and bending, by stairs and general movement. He still suffered from flashbacks about twice a week and still had nightmares of the headless woman trying to talk to him. He said he had lost energy and confidence and continued to have suicidal thoughts. He said that he would like to be able to work but was unable to think of anything which he could do. He said that he read and did a little tapestry.

38. Under cross-examination the plaintiff said that he made no complaint of the pain in his back when taken to hospital after the accident and that he did not complain about his lower back the next day when he first visited his general practitioner. He did not tell his doctor about the pain in his back until one week after the accident. He was cross-examined in particular about his visits to Dr Miller, (one of the defendant's expert witnesses) a medical practitioner with an interest in occupational medicine and sports injuries. He agreed that his back had become much worse after his first visit to Dr Miller in May 1994 and attributed the deterioration in his back to the seat in the truck. The seat was said to be twisted and very uncomfortable, and he had told Dr Miller that prolonged periods of driving in the twisted seat had aggravated his back pain, together with the roughness of the ride whilst driving and the poor quality of the seat. There was also a suggestion that a further incident had occurred while he was stacking bricks in the yard, in which his back gave way again.

41. A substantial attack was made on the plaintiff's credit during cross-examination, it being suggested that he was exaggerating his evidence in a number of different ways.

44. The plaintiff's former wife, Kathryn Le Cornu, gave evidence on his behalf. She said that before the accident the plaintiff was a very happy man with a terrific sense of humour, was fun to be with, had a great sense of life and was extremely positive. She described the immediate effects of the accident on the plaintiff as anger, grief and much guilt, that he became very cynical and angry, and developed a flatness, not caring about anyone or anything. She said it was apparent to her that his walking had become increasingly stooped and that he was suffering lower back problems. She described the breakdown of their marriage as the plaintiff's beginning to withdraw from her and showing anger towards her. Her evidence also was attacked as exaggerating and defendant's counsel claimed that she was an advocate for her former husband, particularly in describing him as beginning to stoop. Heather Franks, with whom the plaintiff had, as I have said, begun to live some two months before trial, also gave evidence on his behalf.

47. The next witness was Dr Peter Faull, the plaintiff's general practitioner. He described the plaintiff's injuries as including a soft tissue injury to the lumbo-sacral spine, and said that the plaintiff's lower back had continued to deteriorate to the present time. Dr Faull said that the plaintiff had been unfit for all work from the date of the accident to 9 January 1994 and noted that he had kept working until 27 September 1994 when his lower back injury had deteriorated to the point where he could not work. Dr Faull said that his view, at the time of trial, was that from the point of view of his back injury the plaintiff was then unemployable. The accident had caused the plaintiff a tremendous psychological blow and he had developed a post-traumatic stress disorder. Dr Faull agreed under cross-examination that the first entry in his notes relating to the plaintiff's lower back was made on 27 September 1994. In re-examination Dr Faull said he thought it was clear that the plaintiff had suffered a soft tissue injury to his lumbo-sacral spine in the accident.

50. The psychologist, Ms Lorensini, said that when she first saw the plaintiff (two days after the accident), he was severely traumatised and suffering an acute stress reaction. He was severely affected, and could not eat or sleep. Her opinion was that the plaintiff's stress reaction had become a post-traumatic stress disorder, with the plaintiff experiencing nightmares, and constant flashbacks to the accident. She thought the plaintiff would suffer from post-traumatic stress disorder forever, and that it would be impossible for him to pursue the occupation of a truck driver. Ms Lorensini said that the plaintiff told her about his suicide attempt. Her evidence was also attacked in cross-examination, in particular because she had not been aware that the plaintiff had gone back to work as a truck driver on and off for some six months, having given evidence that the psychological effect of the accident was such that she did not think that the plaintiff could ever go back to work after the accident as a truck driver.

53. Mr J.D. Bourke, an orthopaedic surgeon practising in Ballarat, first saw the plaintiff in November 1994. He said that in his opinion the plaintiff had suffered soft tissue injuries to his cervical and lumbar spines which were most likely to have been caused by the accident. At first these appeared to settle down late in 1994, but in May 1995 further pain led to renewed examination, which indicated that the plaintiff had suffered irritation to his sciatic nerve. Mr Bourke said that at trial the plaintiff was currently unfit for all types of work and would probably remain so for some time. Under cross-examination Mr Bourke agreed that he did not treat the plaintiff until after he had suffered a work-related exacerbation of his low back complaint, at which time the plaintiff had told him that he had been driving for six months in a twisted seat. In re-examination however, Mr Bourke repeated his opinion that the pain in the lower back experienced by the plaintiff one week after the accident was in his opinion in fact due to the accident.

56. Evidence was given by Mr Peter Rice, a Ballarat physiotherapist, who first saw the plaintiff in December 1993. At that time, the plaintiff had complained of a painful lumbar spine and from December 1993 to the end of 1994 the plaintiff was given treatment for his back and neck three times a week.

59. Mr Frank Combe, a general surgeon who examined the plaintiff on 22 October 1999, gave evidence that the plaintiff had exhibited disc space narrowing at the lowest level of his lumbar back and some broad-based posterior bulging of the two lower lumbar discs. Mr Combe said that because of the plaintiff's back he was permanently unfit for work involving prolonged immobilization, bending or heavy lifting, and permanently unfit to return to the work of farm-labouring or truck-driving. Mr Combe said that the CT scan performed on June 1995 demonstrated two bulging discs, and he was also of the opinion that one or both bulging discs had been initiated in the motor vehicle accident. He said there was an aggravation when the plaintiff went back to driving a truck and a further aggravation when he went back to stacking bricks.

62. Dr David Burke, a doctor specializing in rehabilitation medicine, said that in his opinion the plaintiff may have suffered some partial damage to the L5-S1 disc in the accident and that this was what caused a slightly delayed onset of pain and subsequently left leg pain. He said the plaintiff had a degree of sciatica which he thought persisted beyond the recognized period. Dr Burke said that because of the plaintiff's severe psychological reaction to the accident, this was contributing to his persisting pain syndromes. In his view at the time of trial, the plaintiff's problems were predominantly due to the severe psychological reaction to the accident. Dr Burke said he was pessimitic of a good outcome for the plaintiff and thought it was very doubtful that he would ever get back into the workforce. He said that the psychological status alone would have affected his ability to work. Dr Burke said he thought the bulging of the disc demonstrated by the CT scan was more likely than not a result of the motor vehicle accident.

65. The next witness was Dr A.L. Kaplan, a psychiatrist, who first saw the plaintiff on 24 November 1995. Dr Kaplan described the plaintiff as a genuine historian and stoical individual who appeared to be deeply distressed by his experience and frustrated by his pain. He said that his psychiatric condition had been caused in part by his injuries, his chronic pain and the restrictions imposed upon him by his pain, and in part by a post-traumatic stress disorder arising from the horrendous accident. Dr Kaplan said that the accident had left the plaintiff shattered. He described the plaintiff's symptoms up to that time, and said as to the future that the plaintiff was likely to continue to suffer from symptoms of depression and anxiety as long as his pain persists, and that he remains disabled and unable to resume his previous full and active lifestyle. He said that the post-traumatic stress disorder appeared to have stabilized and that the prognosis of this condition was likely to be poor and to persist for the foreseeable future. He said that although the influence of Mrs Franks was beneficial, the plaintiff continued to have a greatly diminished capacity to cope with stress and noise and remained socially withdrawn and that the quality of his life remained poor. He thought that his psychiatric condition was likely to persist for the foreseeable future. He said that treatment was unlikely to substantially alter his condition and that post-traumatic stress disorders are notoriously difficult to treat.

68. Mr David Wallace, a neurosurgeon who had examined the plaintiff on two occasions on behalf of the defendant, was then called as part of the plaintiff's case. Mr Wallace said there had been sensory dulling within the L5 and S1 dermatomes, showing some genuine nerve root sensory loss. He said that the plaintiff had suffered a significant lumbar disc injury at the L5/S1 level and that this had brought about the ongoing problems with back pain and left-sided sciatica. These problems continued to the present time and might well eventually require some form of surgical intervention to relieve his chronic ongoing back pain. Mr Wallace noted that the plaintiff was still greatly troubled by psychological stress engendered by the accident. He said that it remained to be seen whether the plaintiff would ever return to his former job as a truck driver due to the combination of his ongoing back problems and his psychological stress. He said that the plaintiff was a thoroughly genuine person who in no way exaggerated his situation. Mr Wallace said that from the physical viewpoint the plaintiff would be capable of a wide range of light duties if appropriate employment could be found. He thought that the psychological problems would make it much more difficult for him either to get a job or to maintain employment. He could not see the plaintiff getting back to heavy physical work because of his back problems.

71. The defendant called two witnesses, Dr Tony Kostos, a rheumatologist, and Dr Andrew Miller. Mr Kostos said that he could not find any evidence of nerve root involvement in the lower back. He did not think there was any basis for continuing physiotherapy and said the plaintiff's back was stiff because he was not doing enough exercise. He conceded that if the plaintiff suffered from post-traumatic stress disorder, this would considerably influence his pain perception. Dr Kostos said he could not accept that the plaintiff was totally incapacitated for employment on physical grounds alone although he thought it might not be wise for the plaintiff to return to labouring duties.

74. Dr Miller said that when he first examined the plaintiff in May 1994 the plaintiff made no mention of his lower back. He said that in the accident the plaintiff sustained a hyperextension soft tissue strain injury to his neck and back. He said that the plaintiff was suffering an emotional disturbance caused by the horror of the accident. He believed that the plaintiff had recovered from the soft tissue strain injury to his neck and back, but that the major problem was the emotional disturbance experienced as a result of the accident. In his view the plaintiff's back condition had deteriorated because long periods of driving, the roughness of the ride and the poor quality of the seat in his truck had caused aggravation of his back pain. In Dr Miller's view the plaintiff's work duties appeared to have aggravated the injury to his back and rendered him incapacitated for work. However he thought that the injury would resolve within two or three months and that the plaintiff was currently capable of working but with a significant number of restrictions. Dr Miller agreed in cross-examination that when he saw the plaintiff on 8 November 1994 he felt there had been an aggravation to the injury which occurred in November 1993, and that when he saw the plaintiff in June 1995 he thought that he continued to suffer from an aggravation of that injury.

77. The defendant admitted that, in addition to Dr Kostos, Dr Miller and Mr Wallace, the plaintiff had been examined, at the request of the defendant, by three psychiatrists and two orthopaedic surgeons, none of whom was called to give evidence.

80. Mr Kendall for the appellant submitted in this Court that the figure of $12,000 awarded for economic loss must have been limited by the jury to the plaintiff's financial loss up to the time when he returned to work, a proposition accepted in argument by Mr Ruskin for the respondent. Mr Ruskin's principal submission was that there was considerable evidence entitling the jury to infer that the plaintiff had made a complete recovery from any soft tissue injury to his lower back caused in the accident, and that there had been a later discrete disc injury to the back, unrelated to the motor car accident, caused by the plaintiff driving in a twisted seat for long periods and being jolted in the truck. He submitted that the evidence as to the earlier injury was speculation and that it would have been quite inconsistent for the plaintiff to have suffered lower back injury in November 1993, but no pain until September 1994. In so far as Dr Faull and Mr Rice had given evidence to the contrary, that the plaintiff had complained late in 1993 of lower back pain, they were confronted with there being no reference in Dr Faull's medical notes to lower back pain from November 1993 to September 1994. Notwithstanding that Mr Bourke had given evidence that in his opinion the lower back was injured in the accident and had later been aggravated, the jury were entitled to take the view that they were not satisfied that the plaintiff's later back injury was caused by the accident.

83. It may be accepted that it was open on all the evidence for the jury not to be satisfied, the onus of course being on the plaintiff, that the plaintiff's present disc injuries were a consequence of the original accident, notwithstanding a substantial body of evidence that would have given support to the contrary conclusion. But a major part of the plaintiff's case was that as a result of the collision the plaintiff suffered a very serious and permanent psychiatric injury comprising post-traumatic stress disorder, anxiety and depression and the development of a panic disorder with agoraphobia. The condition was permanent and had a very serious effect on his employability. There was abundant evidence to establish all of this, and really no evidence to the contrary. The defendant did not call the three psychiatrists who at his request had examined the plaintiff. Defendant's counsel accepted that the plaintiff had suffered a serious psychiatric injury.

86. It is, I think, plain (even if Mr Ruskin had not made the concession) that the jury must have disregarded all this evidence in the assessment of the plaintiff's economic loss. There was clear evidence that the plaintiff's psychiatric injury precluded him from exercising his chosen profession. There was also a large body of evidence to the effect that notwithstanding the injury to the plaintiff's lower back, the plaintiff might have been able to obtain light work, had it not been for his psychiatric injuries. In my view it was not open to the jury to ignore this body of evidence. Mr Ruskin's argument was that it was open to the jury to take the view that the plaintiff's disc injuries could account for all his present disability, and that this would have justified the very low assessment of future earning loss at which they arrived. To take this view would, however, have involved rejecting the evidence of Ms Lorensini, Mr J.D. Bourke, Dr D. Burke, Dr Kaplan, Mr David Wallace (the defendant's specialist called by the plaintiff), Dr Kostos and Dr Miller, as well as the fact that the defendant had chosen not to call the three psychiatrists who at his request had examined the plaintiff.

89. I am, accordingly, satisfied that the award of $12,000 for economic loss was not one to which the jury, applying themselves to the evidence, could reasonably have come. It is a verdict which may have been influenced by the manner in which the judge chose to charge the jury - although, it must immediately be said, no relevant exception was taken by plaintiff's counsel in this respect during the trial, nor was any specific objection taken in this Court to his Honour's directions. However, no reference was made to the evidence in the course of the charge, his Honour taking the view that the evidence had been "very well canvassed" by counsel. Whilst a failure of the judge to remind the jury of the essence of the medical evidence given in a trial is not necessarily a critical error, the failure to remind the jury of the evidence in this case might explain the jury's verdict on the question of economic loss. It was at the heart of the plaintiff's case that his loss of earning capacity was being occasioned both by his back injury and his psychiatric injury. Even if the jury was not prepared to find that the significant and incapacitating back injury from which at trial he claimed to be suffering had been caused by the accident, it was still a very live issue whether his ongoing and undisputed psychiatric disability had interfered, and would continue to do so, with his earning capacity. Yet the issue of the extent of the plaintiff's continuing disability was put in terms of his back injury. For example the judge said to the jury near the end of the charge -

"At the end I might venture to suggest to you that the reality, the real nub of this dispute between the parties is really the question of the low back injury. The real nub, and this is only my assessment, mind you, of the way that counsel put the thing to you, the real nub of it is in the question, 'Is the low back injury, as it is now, the result of this accident or is it the result of some separate, unrelated event, that is unrelated to this accident? Is it in effect a totally new injury that has caused the plaintiff to be as debilitated as he is?'"

"So the defendant says to you, 'You should compensate him in effect only for the three months' absence from work and a relatively short period of pain and suffering and take the view that all the rest is unrelated to this accident.' Well, as I said to you at the outset, that is what you will decide. That dispute you will resolve by your judgment."

95. Although the question whether the consequences of the back injury were caused by the accident may have been "the nub of the dispute between the parties", there remained a real issue as to the extent of the plaintiff's enduring psychiatric injuries on his capacity to earn income. The failure of the judge to make this issue clear to the jury in his directions might well explain the perverseness of the verdict in respect of economic loss.

98. Accordingly, I would allow the appeal. Although it is not necessary to determine whether the award of $75,000 for pain and suffering is in itself unreasonably low (a more difficult question to answer, notwithstanding that it is substantially below the lower limit of the range put to the jury by defendant's counsel), it is nevertheless sufficiently substantial to suggest in itself that the jury in awarding the figure which they did for economic loss, have not paid any, or any sufficient, attention to the psychiatric injury in determining its effect on the appellant's earning capacity.

101. Finally, both parties accepted that in the event that the appeal succeeded a re-trial would be necessary; in the circumstances there could be no question of this Court attempting to re-assess damages for itself. Therefore, if the appeal is allowed, I would set aside the judgment below and the verdict in so far as it related to the assessment of damages. I would direct that there be a re-trial limited to the issue of damages.

[1] [1975] HCA 27; (1975) 132 C.L.R. 362 at 369.

[2] [1976] HCA 59; (1976) 135 C.L.R. 651 at 672.