DURHAM v COLLINS No. SCGRG-98-1651 Judgment No. S163 [1999] SASC 163

This action arises out of an unfortunate altercation between three men at the greyhound racing club at Mount Gambier on Saturday, 1 February 1997. It is convenient to refer to the parties by their surnames. The plaintiff Durham was involved in an altercation with the defendants Patzel and Collins. Durham instituted this action against both Patzel and Collins, claiming damages for assault. Collins made a counterclaim for damages against Durham. The magistrate dismissed Durham's claim against Patzel and ordered Durham to pay Patzell's costs. The magistrate upheld Durham's claim against Collins and dismissed the counterclaim by Collins.

The following summary of the facts is based upon the findings of fact made by the magistrate. As a result of an incident which occurred inside the clubhouse, Durham, Patzel and Collins had gone outside the clubhouse building. They argued with one another, Durham on the one side and Patzel and Collins on the other. In the course of the argument, Collins forcefully shoved Durham in the chest causing him to fall to the ground. When he fell to the ground, Durham landed on his buttocks and then his right elbow and right shoulder and, ultimately, his head hit the ground.

On the evening of the incident, Durham went to the Mount Gambier Hospital for some minor treatment. He was then complaining of a severe headache and pain in his neck and right shoulder. On the following Monday he consulted Dr Kiefer, his general practitioner. Dr Kiefer examined Durham. He saw that he was suffering from an acute muscular spasm. He believed that it was a recent injury which was not related to a longstanding condition from which Durham suffers. Durham is an invalid pensioner. He receives the pension in respect of a longstanding disability to his back and neck. The condition has been described as chronic.

Dr Kiefer prescribed some Panadeine to relieve the pain. He also injected local anaesthetic into the muscles which produced significant relief of pain within about five to ten minutes. Durham again consulted Dr Kiefer on 7 February, stating that he was still experiencing pain. He described the pain as being higher in his neck and radiating into the back of his head in a way different from the earlier pain. It is Dr Kiefer's view that this pain was related to the injury suffered on 1 February and he relieved it by the administration of an occipital nerve block. He recommended that Durham undergo physiotherapy. It was Durham's evidence that, for about two weeks after the assault, he suffered pain in his neck and shoulder as well as in his head. Those symptoms abated, but the pain in the right shoulder remained.

Had the matter stood there, the assessment of damages would have been relatively simple. However, the assessment was complicated by the fact that, on 27 February, Durham was involved in a motor vehicle accident. In that accident, he sustained a whiplash injury. He consulted Dr Kiefer the following day, and thereafter, complaining of muscular spasm in his upper body and soreness in his neck.

Durham's evidence was that he continued to experience pain in his right shoulder and neck for a long time after the assault. He said that he could differentiate that pain from the pain suffered as a result of the injuries received in the motor vehicle accident. He said that his right shoulder was not injured in the motor vehicle accident. In the course of his evidence, Dr Kiefer said that he was aware of the existing chronic low back condition when he examined Durham in relation to the injuries he sustained in the assault. He was satisfied that the neck and shoulder pain had a different cause than the cause of the chronic low back pain. The injuries were consistent, he said, with the assault.

Dr Kiefer was asked whether it was possible to determine whether the continued pain which Durham continued to experience was caused by the injuries sustained in the assault or the whiplash injury sustained in the motor vehicle accident. In his opinion, it was not possible to do so. He was later asked whether it was possible to differentiate as to the cause of the discomfort which Durham was continuing to experience between the chronic back condition, the injuries sustained in the assault, and the injuries sustained in the motor vehicle accident. He said that there were those three possibilities and it was difficult to differentiate between them. That answer must, however, be weighed with his earlier answer that he was satisfied that the injuries of which Durham complained on 3 February were consistent with the assault.

The effect of the evidence was that Durham had proved the injury sustained in the assault and the symptoms of that injury. Given the occurrence of the motor vehicle accident, the question for the magistrate to determine was whether the symptoms of the injuries sustained in the assault persisted after the motor vehicle accident, or whether they were aggravated by it, or whether they were submerged in it, or whether the symptoms of that injury had, to all intents and purposes, ceased by about the time of the motor vehicle accident.

The magistrate found that the symptoms of the injuries caused by the assault could not be distinguished from those caused by the initial chronic back condition from which Durham suffered or the effects of the subsequent motor vehicle accident. Thus, he said, it was not possible to determine whether the injuries suffered in the assault continued to cause the symptoms of which Durham complained. He expressed his reasons in these terms:

"It was submitted that the symptoms from that accident, in effect, submerged with the symptoms arising out of the assault, I accept those submissions and it appears to me that, accordingly, the disabilities Mr Durham has suffered, and will suffer in the future, are indistinguishable now because of the three factors that I have just set out. In the circumstances it seems to me that the only award that I could make is in relation to a short period of time between the incident and approximately three weeks later when Mr Durham had his road accident."

The magistrate has erred in this approach. His conclusion ignores the evidence of Dr Kiefer that it was possible that the injury sustained as a result of the accident was unrelated to, and had a different cause from, the chronic back condition. It also fails to have regard to the fact that Durham had proved through Dr Kiefer that the symptoms from which he suffered could have been caused by either the assault or the motor vehicle accident. The situation was one in which Durham had sustained an injury which was identified as causing symptoms which differed from his chronic back condition. Almost four weeks after the assault, he was injured in the motor vehicle accident. The symptoms of those injuries were similar to those sustained in the assault. The symptoms persisted for some time. The question for the magistrate was whether the injuries sustained in the assault continued to persist. In those circumstances, if Collins wished to prove that the injuries in the motor vehicle accident were the cause of the symptoms which Durham continued to experience, it was necessary for him to adduce evidence through Dr Kiefer or elsewhere to show that fact: c.f. Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 159; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168, 170 to 171. In other words, he had to prove that the incapacity from which Durham suffered no longer existed at the time of the motor vehicle accident so that his continuing disability was caused by that motor vehicle accident. The effect of Dr Kiefer's evidence is that it was difficult to do so.

In the usual case, one would remit the question of damages for consideration by the lower court. In order to avoid putting the parties to further expense in an action which concerns very small sums of money, I now proceed to assess the damages.

Although Durham was forcefully pushed to the ground, it is unlikely that the injuries he sustained would be of long duration. The fall to the ground would be similar to those kinds of falls which are experienced in everyday life. Durham's account is that he first struck the ground with his right elbow and then his right shoulder and head hit the ground. An independent witness, who was accepted by the magistrate, said that he had fallen, first, on to his backside and then on to his right shoulder and head. The evidence of the independent witness is, I think, the more likely manner in which he would have fallen. It is clear from Dr Kiefer's evidence that that fall caused a significant degree of injury in that it persisted for at least 10 days. According to Durham, although his neck condition abated, the right shoulder continued to be painful. His evidence was that his right shoulder had not been injured in the accident and there is no reason why that evidence should not be accepted. It is likely that the injuries would have persisted for some time after the motor vehicle accident, but not for an unduly long time.

There was no suggestion that the motor vehicle accident aggravated the injuries. The injuries were not such as to cause the plaintiff to suffer any great inconvenience in his day-to-day living. The only disability to which he could point was some disability when hanging out washing on a line. In all the circumstances, I do not think that the award of damages should be very high. I must be satisfied that the award of damages was manifestly inadequate. In the context of small awards of damages, even a relatively small award might result in what is proportionately a significant variation from an existing award.

I am satisfied that the award of damages was inadequate. In my view, this condition would have persisted for, say, one to two months. It did cause significant disability and discomfort. In all the circumstances, I believe that an award of $2,000 is an appropriate award. The appeal against the assessment of damages is, therefore, allowed. I turn to the appeal in respect of the order as to costs.

Although Durham succeeded, the magistrate ordered that each party should bear his own costs. The magistrate expressed his reasons in these terms:

"In my opinion, the plaintiff's motivation for taking this action was, basically, to embarrass and harass the defendant, Mr Collins. The defendant failed entirely against Mr Patzel and should have known from the outset that his claim was doomed. The matter involving Mr Collins was something that he has persisted with to attain, in the end, a basically nominal award. He advised that he had not made any claim whatsoever for the whiplash injury with respect to his road accident. I have no doubt that that accident produced pain and suffering that was at least comparable to this incident.

For these reasons, and for the provocation I have found to be established, I would indicate that it is appropriate that the plaintiff and Mr Collins should each bear their own costs of these proceedings".

In the absence of special circumstances, the successful litigant will obtain an order that he recover the costs against the unsuccessful party: Ritter v Godfrey [1920] 2 KB 47 and Donald Campbell and Co v Pollak [1927] AC 732 at 809 to 811. As the magistrate intended to deprive the successful party of his costs, he ought to have heard the parties before making that order. That is one ground upon which this court might interfere with the order. The question, nevertheless, remains whether the order was correct.

The magistrate, of course, had a discretion to deprive Durham of his costs. That discretion had to be exercised judicially and had to be confined to grounds relating to the litigation: Cretazzo v Lombardi (1975) 13 SASR 4. As with other like discretions, it must be shown that there are proper grounds to interfere. It is not enough that an appellate court might have exercised the discretion differently.

In this case, the plaintiff has recovered other than nominal damages. It is not correct to describe the amount recovered as "a basically nominal award". The plaintiff had been required to incur costs and expense to recover those damages. The defendant made no offer to settle, notwithstanding that the plaintiff made, as I have been told, a filed offer. Assuming that there had been ill feeling for a long time between the parties and that had caused the plaintiff to commence these proceedings, that is not a relevant factor for the purpose of depriving the plaintiff of his costs. It is a factor which is unrelated to the conduct of the litigation. It is, in fact, an inquiry into the motive of the plaintiff for bringing the action. That is an improper footing on which to proceed. It would be dangerous, indeed, for courts to examine and adjudicate upon the propriety of motives for bringing litigation. I acknowledge the benefit that the magistrate had in seeing and hearing the witnesses. But the fact that the magistrate has erred in the manner I have described requires this court to intervene.

Durham has had to commence these proceedings and incur the expense of them. The award which has been made is an award which could have been recovered in a minor civil action. Instead of issuing a minor civil action, Durham has chosen to proceed by what the rules call a routine action in the Magistrates Court. That is not a ground upon which he should be denied his costs. Rather, it is a ground which might call for the exercise of Rule 106(3) which provides that, if a successful party recovers $2,500 or less, he is, in the absence of special reasons, entitled only to recover the costs of a minor civil action. In my view, Durham is entitled to recover his costs. The question then remains as to the footing upon which those costs should be paid and to determine whether there are special reasons which justify departing from the terms of Rule 106(3). I will hear the parties on that question.

After hearing the parties, the following orders were made:

2 The orders made by the magistrate are varied as follows:

(a) The assessment of damages is set aside and in lieu thereof there will be an order awarding $2000 damages to the plaintiff.

(b) The order for costs is set aside and in lieu thereof there will be an order that the second defendant pay $600 costs plus disbursements to the plaintiff.

(c) The award for interest will be increased to $200.

3 Remitting the fees paid in respect of this appeal.