Fane v Smart [2002] WASCA 62

2 The appellant sued the respondent in the District Court at Perth for damages for personal injury sustained by her in a motor vehicle accident that occurred on 26 July 1995. She sustained a soft tissue injury to the cervical spine and claimed that in consequence she had endured pain and suffering and had suffered economic loss, including loss occasioned by the need for gratuitous services.

3 The appellant's action came before Commissioner Greaves in the District Court at Perth on 17 April 2001 and was heard over a period of three days. Judgment was delivered by the learned Commissioner on 22 May 2001 when the plaintiff's claim was dismissed with costs.

4 The appellant appealed to this Court on five grounds.

(1) The learned Commissioner had erred in fact and in law in concluding that the appellant had suffered no loss of earning capacity productive of economic loss when there was unchallenged medical evidence to the contrary.

(2) The learned Commissioner misapprehended the evidence led at trial and erred in fact and in law by failing to conclude that the appellant's decision not to accept a position as a physiotherapy coordinator at the Bentley Hospital was accident caused.

(3) The award of $9000 by way of damages for pain, suffering and loss of amenities of life was manifestly inadequate.

(4) The learned Commissioner's finding that the appellant had no basis for any claim for past and future gratuitous services was against uncontradicted evidence to that effect.

(5) The learned Commissioner neglected to award special damages when they were agreed at the sum of $500.

5 The appellant did not, in her grounds of appeal, contend in terms that the learned Commissioner's reasons for judgment were inadequate reasons. At the hearing of the appeal, however, the Court itself raised this issue. Counsel for the appellant submitted that the reasoning process of the learned Commissioner was flawed, but sought to have this Court re-assess the damages to which he contended the appellant was entitled, contending that there were sufficient conclusions reached in the learned Commissioner's reasons to enable the Court to undertake that task. Counsel for the respondent, with commendable frankness, conceded that the reasons of the learned Commissioner were inadequate in the sense that there were no findings in relation to the credibility of the appellant and/or the medical evidence adduced on her behalf, which supported the Commissioner's ultimate conclusion that the plaintiff had failed to prove any loss of earning capacity productive of economic loss, either past or future. He submitted that if the Court considered the reasons of the learned Commissioner to be inadequate, the matter should be remitted for a retrial.

6 The obligation of the learned Commissioner to give reasons sufficient to enable this Court to consider and determine whether or not the judgment was erroneous is clearly established. In Lloyd v Faraone [1989] WAR 154, Malcolm CJ (at 163 - 164) summarised the obligation of the trial Judge to give adequate reasons in these terms:

"By s 79(1)(a) of the District Court of Western Australia Act 1969 a party to an action in the District Court who is dissatisfied with a final judgment may appeal from that judgment to the Full Court. Such an appeal is as of right, whether for error of fact or law. In these circumstances, the trial judge has a duty, in which both the litigants and the appellate court have an interest, to reveal his reasons. Those reasons must be revealed to such an extent as will enable an appellant court to consider and determine whether or not the judgment is erroneous. In Carlson v King (1947) 64 WN (NSW) 65 at 66 Jordan CJ said:

'It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.'

In Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388 Moffitt P (with whom Manning JA agreed) said:

'... there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have. Just as an expressed statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordon CJ quoted (supra) recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.'

This passage was repeated by Moffitt P (with whom Glass JA agreed) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702."

7 In his reasons the learned Commissioner summarised the testimony of the appellant, a number of medical witnesses, and the evidence of three institutions where the appellant had been employed as a physiotherapist. Unfortunately, the learned Commissioner made no findings in relation to any of that evidence. Instead, at the conclusion of his reasons the Commissioner simply reached the following conclusion.

"17. It is axiomatic that the onus is upon the plaintiff to prove the facts on which her claim for damages for pain and suffering and loss of amenities, and loss of earning capacity, which the Court is required to assess in this case, is based. In my opinion, the evidence in this case establishes on the balance of probabilities that the plaintiff has suffered no loss of earning capacity productive of economic loss, either past or future. The evidence to which I have referred reveals that the plaintiff remained in employment at the Kalgoorlie Regional Hospital until she resigned in September 2000. The evidence does not establish that she resigned as a result of the soft tissue injury which she sustained nearly five years before. The evidence establishes on the balance of probabilities, that the plaintiff is now capable of undertaking the position of a physiotherapy coordinator such as that which she declined at Bentley Hospital. The evidence establishes that it is very likely that she will retain that capacity for such a position in the future. The plaintiff, therefore is entitled to no award for loss of earning capacity or loss of superannuation benefits."

8 The learned Commissioner then went on to make an assessment of damages for pain, suffering and loss of amenities which was below the threshold which had to be reached before the appellant was entitled to any award at all. On this basis her claim was dismissed.

9 As the appellant's grounds of appeal contend, the learned Commissioner appears to have overlooked a substantial body of medical evidence going to the appellant's injury and its consequences in terms of her capacity to engage in full time work in the field of physiotherapy. Those medical reports also touch upon the appellant's capacity to perform various tasks within the home in relation to which she made a claim for damages for gratuitous services rendered by her husband.

10 It is unnecessary and perhaps inappropriate for the Court at this stage to refer in detail to the medical evidence. It is sufficient to mention the evidence contained within some of the medical reports which were tendered in evidence.

11 Dr Ian J Skinner, an orthopaedic surgeon, reported on 25 August 1998 that the appellant had suffered a soft tissue injury to her cervical spine in the motor vehicle accident and as some three years had passed since the injury, only a guarded prognosis could be given in terms of residual disability. Dr Skinner thought that it might be some years, if ever, before the appellant was able to return to a normal workload as a physiotherapist. He also expressed the view that there was no indication during his interviews with the appellant that she was "over calling" her symptoms, expressing the view that she was forthright and he had no reason to believe that her symptoms were other than those described by her.

12 Mr Barrie Slinger, a spinal surgeon, reported on 23 December 1999 that his examination revealed a soft tissue injury to the cervical spine and that the appellant was fit to continue in her occupation of physiotherapist on a full-time basis, although she had a limited capacity to do hands-on work expected of a manipulative therapist, with the result that such activity would be restricted to a part-time capacity in that regard. He followed that report up with one on 13 February 2001, pointing out that any increased activities required of the appellant as a physiotherapist would create difficulties for her in continuing in that employment and accepting that to all intents and purposes she was unfit to continue as a full-time physiotherapist with the usual type of physical activity required in that employment. Later, on 10 April 2001, he expressed the view that the appellant was fit for a full-time position as a physiotherapist only in a capacity which would allow her some 30 per cent clinical commitment spread throughout the week with the remainder of her time devoted to administrative or supervisory duties. On 12 April 2002 Mr Slinger reported on the question of the appellant's capacity to take an appointment as head of physiotherapy department at Bentley Hospital and expressed doubts about her capacity to be able to accept the workload which was required.

13 These reports make it clear that there was a body of evidence supportive of the appellant's contention that she had suffered loss of earning capacity, both past and future, by reason of her incapacity to work full-time in her occupation of a physiotherapist. The medical opinion pointed to a direct link between the accident caused injury and that capacity. However, the learned Commissioner made no reference to it other than a passing reference to the views of Dr Skinner and Mr Slinger in the following terms:

"15. The orthopaedic surgeon, Mr Ian Skinner, expressed the opinion in his report of 25 August 1998 that the plaintiff was best suited to employment in a mixed administrative and clinical role. The spinal surgeon, Mr Barrie Slinger, formed a similar opinion which he expressed in his report of 10 April 2001. He was of the opinion that the position of a physiotherapy coordinator at Bentley Hospital was within the plaintiff's present and future capacity."

14 It will be observed that although a very brief summation of the evidence of these two witnesses was given, no findings were made as to the correctness or otherwise of the opinions expressed. When it came to the learned Commissioner's conclusion there was again no reference to the medical evidence. There was only the conclusion that the appellant had failed to establish on the balance of probabilities that she had suffered loss of earning capacity productive of economic loss. Why was not explained.

15 The learned Commissioner summarily dismissed the appellant's claim for damages for past and future gratuitous services by simply saying that it had "no basis in fact". There was, however, evidence from the appellant herself and her husband which went to that issue. The credibility of the appellant and her husband was tested in cross-examination on the issue. A finding in relation to the evidence of both was called for.

16 Unfortunate though it is, it is necessary that the appellant's claim be reheard before another Judge of the District Court. Although the Court was urged itself to carry out the task of assessing the appellant's entitlement to damages, that would be impossible. Conclusions on issues of credibility of the appellant and other witnesses are called for before a proper assessment can be made. Only a trial Judge can perform that task.