MALLAH v KETI [1999] NSWCA 100 | Case summary

1 SHELLER JA: In proceedings begun by the plaintiff, Wafa Mallah, in the District Court to recover damages for negligence against the respondent, Iona Keti, for injuries suffered in a motor vehicle accident which occurred on 25 April 1996, her Honour Judge Sidis awarded the plaintiff a verdict of $6,572.70 which comprised $2,500 for economic loss and $4,072.70 for past out of pocket expenses. A claim for loss of income earning capacity was abandoned. The plaintiff seeks leave to appeal from the judgment on the basis that the verdict was inadequate. 2 The plaintiff suffered injury in a collision between a car driven by her husband in which she was a passenger and a car driven by the defendant. At the time the plaintiff was aged 49. As a result of the accident, the car in which the plaintiff was a passenger was written off. The plaintiff said that after the accident she was shaken and dizzy but felt no immediate pain. Her blood pressure was raised and an ambulance officer offered to take her to the hospital but she declined. That night after she arrived home she developed pain in her low back and her left shoulder. She did not consult her doctor, anticipating that her condition would improve. However, after four days when no improvement had occurred, she consulted her general practitioner, Dr Malek. She said she complained to him of pain from her left shoulder extending to her wrist, in the centre of her back just below her shoulder blades and in the left hip extending down her left leg to her foot. She also had pain in her neck which caused her to suffer a headache. Dr Malek prescribed Feldene and Panadine Forte and recommended she undertake exercises. He also treated her with acupuncture. 3 By June 1996 the plaintiff's condition had not improved and she was referred to Dr Manohar, a rheumatologist, for specialist treatment. Dr Manohar arranged x-rays and CT scans, referred her to physiotherapy and, according to the plaintiff, administered pain killing injections from time to time. 4 The plaintiff claimed that her injuries had not resolved. Her on-going complaints as set out in the statement of particulars were: (a) Shock, anxiety and stress, including stress and urge incontinence; (b) Headaches, migraines and dizziness; (c) Pain to the neck, back, left buttock, left thigh, left leg and left hip; (d) Pain to the left arm and shoulder; (e) Pain in stomach and chest; (f) Restrictions in movement. 5 No complaint of pain in the stomach and chest was made at the time of the accident. The plaintiff acknowledged that before the accident she had suffered from occasional bladder infections which had been satisfactorily treated with antibiotics. She also acknowledged that she had suffered from mild back pain well before the accident which had also resolved with treatment. Aside from this, she denied any problems in her neck, left shoulder, left hip or left leg before the accident. She described her symptoms, current at the date of trial, as: (a) Severe pain in her back and shoulder for which she took Feldene or Panadine Forte, on an average of every second day when the pain was particularly acute; (b) Incontinence and frequency of urination; (c) Headaches, dizziness and feelings of tiredness, exacerbated when she took Panadine Forte. 6 In consequence of her disabilities she claimed that her normal life was significantly impaired. She is the mother of six children and has considerable obligations to housework. She said she was unable to undertake all of these obligations to the extent she did before the accident. She said she had particular difficulty with vacuum cleaning, scrubbing, ironing and hanging out washing. Her children assisted with housework. The plaintiff further claimed that she was unable to continue to work in her garden. Gardening was now done by her sons. 7 Before the accident she said she walked about 45 minutes per day. This was now limited to a period of 10 minutes after which she suffered from pain in her back and legs. She went shopping with her children who looked after the trolley and put the shopping away when they went home. All these problems the plaintiff claimed had caused her to suffer from depression. 8 Although he had been her general practitioner for many years, Dr Malek's report was not tendered in evidence. The defendant had required Dr Malek to be available for cross-examination on his report, but the plaintiff did not rely on it. Accordingly, the Court was, in the words of her Honour, "denied the benefit of his evidence and of cross-examination on that evidence." Her Honour said: "This was unfortunate in two respects. Firstly, the absence of a report from the treating general practitioner without explanation, raises an obvious adverse inference. Secondly, Mrs Mallah claims a considerable sum by way of fees, charged by Dr Malek for treatment and has relied upon his clinical notes as evidence of these [sic] treatment. Those clinical notes were entirely illegible and no assistance has been provided in interpreting them." 9 Reports prepared by Dr Manohar, as well as his clinical notes were put in evidence. According to her Honour, these materials indicated that when initially consulted in June 1996, Dr Manohar was told of Mrs Mallah's problems in the left shoulder and left arm only. There was no record of any complaint of neck, back or hip pain. The plaintiff claimed that she had complained of back pain at the initial consultation but agreed that she had not told Dr Manohar of problems in her left hip until September 1996, about five months after the accident. 10 Radiology undertaken by Dr Manohar in September and October 1996 indicated that the structures of Mrs Mallah's shoulders were normal but disclosed a disc protrusion at the L4/5 level with the possibility of impingement on the nerve root. Dr Manohar considered that this defect could account for the ongoing symptoms of which Mrs Mallah complained. 11 Dr Guirgis was, according to her Honour, the only medical practitioner who examined the plaintiff to record any significant restriction on movement in her cervical spine or left shoulder. He diagnosed muscular ligamentous strain of the cervical spine with deep myofascial scarring triggering and aggravating a pre-existing osteo spondylosis; impingement syndrome in the shoulder; L4/5 disc protrusion; chronic trochanteric bursitis of the left hip "where there was radiological evidence of slight soft tissue swelling". The trial Judge observed that there was no radiological evidence concerning the left hip to support this latter finding by Dr Guirgis. 12 Dr Conrad noted moderate restriction in movement of the cervical spine, left shoulder and lumbar spine. He diagnosed a whiplash injury to the neck and strains to the shoulder, back and left hip. He regarded the disc protrusion as the most significant injury and responsible for her ongoing symptoms. 13 Dr Hunter reported on Mrs Mallah's bladder problems and diagnosed mild stress incontinence in the supine and erect positions and severe sensory urgency. His report made no reference to the accident and did not relate Mrs Mallah's condition to the accident. It recommended treatment for the condition but there was no updated report to indicate whether the treatment was provided and, if so, whether the condition had improved. According to the plaintiff it had not. 14 Dr Bornstein examined the plaintiff for the defendant in September 1996 and in March 1998. His reports noted a full range of movement of the back and neck and a full range of movement of the cervical spine consistent with her age. These movements he noted were accompanied by complaints of discomfort. Dr Bornstein was satisfied that the radiological evidence indicated no abnormality with the exception of a "very tiny protrusion at L4/5". According to her Honour, Dr Bornstein's conclusions were: (1) That notwithstanding that her major complaints were in relation to her neck and shoulders, there were no positive investigations of these areas; and (2) That the L4/5 protrusion may be related to the accident and may be responsible for mild lower back pain, although such an injury would be unusual if the accident involved a side-on collision. 15 When questioned in cross-examination the plaintiff denied any pre-accident left elbow or left shoulder problems. She also denied that she had suffered from back pain shortly prior to the accident. When confronted with clinical notes of Dr Malek apparently recording problems with tennis elbow in 1989, 1991 and 1993, she conceded that there maybe was pain but that the pain increased after the accident. She did not remember consulting Dr Malek with left shoulder pain in 1992 or with back pain in August 1995 and as late as January 1996. She vehemently denied that her current urological problems existed prior to the accident. Records of recurring urinary frequency between 1990 and 1995 she attributed to bladder infections rather than stress incontinence. 16 The trial Judge said: "The defendant pointed to the absence of consultation by Mrs Mallah with Dr Malek for four days after the accident and to the fact that his clinical notes, illegible though they may be, indicate that she consulted him frequently for a wide range of medical conditions. It was argued therefore that she suffered no real injury in the accident and that her consultation with Dr Malek came about as a result of discussions with Mr Mallah, who consulted the doctor at a similar time and brought a claim under the Act based on very similar complaints of injury. …… There is no evidence to support any claimed condition of depression." 17 The plaintiff claimed for past out of pocket expenses made up as follows: Dr Malek $2,020 Physiotherapy $666 Dr Manohar $2,205.50 Radiology $963,20 Total $5,852.70 18 Issue was taken with the claims made by Dr Malek and Dr Manohar to the extent that the defendant did not concede that the plaintiff suffered injury genuinely generating the need for their services. Alternatively, in the case of Dr Malek, the defendant argued that it had not been established that the fees claimed were the result of consultations to deal with the injuries which the plaintiff suffered in the accident. 19 Her Honour allowed the claim in full except for the $2,020 said to have been paid to Dr Malek which was reduced to $240. Her Honour felt constrained by the absence of evidence from Dr Malek. She said no attempt had been made by the plaintiff's representatives to transcribe his clinical notes and she was unable without a transcript to make a decision one way or the other as to whether the consultations claimed all related to treatment as a result of the accident. The amount allowed was calculated in a way it is unnecessary to describe. Her Honour observed that she saw no reason to discount the claims for treatment provided by Dr Manohar or the physiotherapy. 20 Under the heading "Findings" the trial Judge said: "I have already noted that an inference adverse to Mrs Mallah arises from the absence of evidence from her general practitioner. The delay in the development of symptoms and in obtaining medical treatment are further factors adverse to her claims. Further, Mrs Mallah's presentation to the court in the course of her evidence was not impressive. Her attempts to avoid conceding what were clearly pre-existing conditions were unconvincing." 21 What her Honour described as the weaknesses in the evidence presented in support of the plaintiff's claim led to the following findings: (1) The plaintiff had exaggerated the extent of her injuries and disabilities; (2) There was no evidence that the plaintiff suffered from any psychological condition of anxiety, stress or depression as a result of the accident. (3) There was no evidence that the plaintiff suffered from stress incontinence as a result of the accident. (4) There was evidence of symptoms in the left shoulder and arm immediately following the accident. It was not clear from the evidence whether these symptoms were the result of aggravation of pre-existing conditions. "Although Dr Malek's evidence would have assisted in this regard, my attention had not been drawn to any record of symptoms affecting the left shoulder or arm immediately prior to the accident and thus I have not drawn any adverse inference in this regard. Notwithstanding this, the most that the evidence establishes is that Mrs Mallah suffered muscular strains to this area (ie the left shoulder and arm) of her body and there is no acceptable objective evidence to support her complaints of on-going symptoms." (5) There is evidence that the plaintiff suffered from a disc protrusion at the L4/5 level. All medical practitioners, including Dr Bornstein for the defendant, accepted that her symptoms of on-going low back pain were likely to be related to this condition. Whilst Dr Bornstein did not specifically state that the left hip discomfort was the result of this condition, it appeared to follow from the evidence of nerve root impingement. 22 The trial Judge said: "There is evidence in Dr Manohar's clinical notes to establish that Mrs Mallah continued to have symptoms arising from this condition for a period of longer than twelve months from the date of the accident. This leaves the question of whether the condition was the result of the accident. There is evidence of back discomfort prior to the accident, the latest complaint having been recorded in January 1996, some four months before the accident. Dr Malek's evidence would have been of significant assistance to the court in determining this question. Unfortunately, it was not available. The most that can be said therefore is that the accident aggravated this condition. Dr Bornstein describes the result of this aggravation as involving mild back pain and I am unconvinced that Mrs Malleh's condition amounts to anything more." 23 Although the trial Judge had referred, as one of the issues arising for determination, to the question, in her words, "whether Mrs Mallah's ability to lead a normal life is significantly impaired by the injuries suffered in the accident to the extent required by s79A (3) of the Motor Accidents Act 1988 her Honour did not deal with this issue separately. Rather she dealt with it as one with what she described as the second issue for determination "the proportion which that impairment bears to a most extreme case." Her Honour said: "Though mild, my assessment of the effect of this condition on Mrs Mallah's ability to lead her normal life of caring for her six children is that it is moderately significant. I do not accept all of the consequences of which she complains. I have assessed the proportion of which the impairment bears to her capacity to lead her normal life at 15 percent of a most extreme case." 24 Her Honour, accordingly, awarded the amount of $2,500. 25 The appellant claimed that the trial Judge misunderstood and misstated the test required by s79A to be followed in assessing damages for non-economic loss. Section 68 defines "non-economic loss". This case concerns only pain and suffering and loss of amenities of life. It was submitted that the trial Judge assessed only the claimant's condition as at the time of the trial in March 1998 and excluded pain and suffering between the date of the accident on 25 April 1996 and the time of the hearing. Subsection (3) of s79A sets a threshold. The subsection says: "(3) No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than twelve months by the injury suffered in the accident." 26 Her Honour was satisfied that the plaintiff passed this threshold but, strictly speaking, the threshold test required no more and no less than significant impairment for a continuous period of not less than twelve months past or in the near future. Subsection (4) provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss of the injured person is at least 15 percent of a most extreme case. Subsections (5) and (6) are as follows: "(5) The maximum amount that may be awarded for non-economic loss is $235,000, but the maximum amount is to be awarded only in a most extreme case. (6) If the severity of the non-economic loss is assessed to be equal to or greater than 15 percent of a most extreme case, the damages for non-economic loss are to be determined according…." to a table that follows. 27 Thus, to determine the amount of damages to be awarded for non-economic loss it is necessary to determine what the severity, in this case, of the pain and suffering and loss of amenities of life is graded by the percentage of a most extreme case. This is a different question from the threshold question and it is well in considering the matter to keep it separate. Her Honour having decided that the threshold was passed had to decide what was the severity graded according to that percentage. I am not persuaded, despite the rolled up way in which her Honour appeared to approach the matter, that her Honour did otherwise. In the passage which is said to reveal error, and which I have quoted, I think her Honour meant to convey that she was applying the correct formula. The problem is the phrase "proportion which the impairment bears to her capacity to lead her normal life". This suggests that she still had in mind the subsection (3) threshold test which, for example, may be concerned only with "the near future" and not with non-economic loss before the threshold period. 28 Rolling the threshold test up with the calculation of the degree of severity of non-economic loss required for an assessment under subsection (6) could result in significant error. Whether it did or not in the present case is unclear. 29 The trial Judge found that 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 she suffered in the accident. The most significant injury responsible for her ongoing symptoms seems to have been the disc protrusion at L4/5; see for example what Dr Conrad had said in a passage her Honour quoted. Her Honour found that the plaintiff's symptoms of ongoing low back pain were likely to be related to this condition. She accepted that the accident had aggravated the condition. The conclusion that the accident aggravated rather than caused the condition was based upon evidence of back discomfort prior to the accident, the latest complaint having been recorded in January 1996, some four months before the accident, and the absence of Dr Malek's evidence which her Honour said: "Would have been of significant assistance to the court in determining this question." 30 In her reasons for judgment the trial Judge said that the absence of Dr Malek's report without explanation raised "an obvious adverse inference", and "an adverse inference to Mrs Mallah". If her Honour meant by this any more than that she could conclude that Dr Malek's evidence would not have assisted the plaintiff or that any inference otherwise available from the evidence could be drawn more confidently as a result of its absence, her Honour was in error. 31 There was other evidence. Apart from Dr Malek's notes about complaints of back discomfort Dr Bornstein had said that it would seem unusual that a disc protrusion would occur in the manner described by the side-on collision. In his opinion the L4/5 protrusion might be related to the motor vehicle accident. 32 In my opinion, the trial Judge's conclusion that the accident aggravated the disc protrusion was open to her and was not dependent upon any misunderstanding as to the effect of not calling Dr Malek. 33 This leaves her Honour's assessment of the severity of impairment at 15 percent of a most extreme case which, the appellant claims, is inadequate. The language used in the context of subsection (3) suggest that her Honour focused on the position at the date of trial. Apart from the disc protrusion the trial Judge found there was evidence of symptoms in the left shoulder and arm immediately following the accident though it was not clear from the evidence whether those symptoms were the result of aggravation or pre-existing conditions and that the plaintiff's left hip discomfort may have been related to the motor vehicle accident. The evidence is in many respects unsatisfactory and I can sympathise with her Honour's difficulty in making findings. 34 The reasons for judgment do, however, persuade me that, had her Honour addressed the assessment under subsection (6) separately from the subsection (3) threshold test, she would have reached a degree of severity higher than 15 percent. Her Honour found that the aggravation had significantly impaired the plaintiff's ability to lead a normal life in ways she described. The effect of it had obviously extended well beyond twelve months. Dr Bornstein said that the plaintiff's condition appeared to be static. In my opinion, her Honour reached 15 percent by taking an erroneous approach to the question of assessment that she had to address and accordingly that assessment should be set aside. 35 In all the circumstances, in my opinion, the appropriate re-assessment under subsection (6) is a finding that the severity of the plaintiff's non-economic loss was 23 percent of a most extreme case. The damages to which she is entitled should be calculated accordingly by reference to the scale applicable at the date of this judgment. 36 Accordingly, I propose the following orders:

Grant leave to appeal; 2. Appeal allowed; 3. Set aside the judgment in favour of the plaintiff of 30 March 1998 and in lieu thereof substitute an amount being the sum of $4,072.70 for out of pocket expenses and an amount calculated in accordance with a finding of non-economic loss at 23 percent of a most extreme case applying the tables current at the date of this judgment. 4. The respondent to pay the appellant's costs of this appeal. 37 At the hearing a costs order was made against the appellant. In the light of this decision that order may require review. The appellant should bring in draft minutes of an order in accordance with this judgment within seven days hereof. 38 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Sheller JA. I agree with those reasons and with the orders proposed by his Honour. 39 However, in my opinion, the trial Judge's error in finding that the severity of the plaintiff's non-economic loss was 15%, not 23%, of a most extreme case would not ordinarily have attracted a grant of leave to appeal, especially when the amount involved is so small. I consider that leave should be granted on this occasion because, as is pointed out by Sheller JA, there was a serious question concerning whether her Honour had misinterpreted and/or misapplied s79A of the Motor Accidents Act 1988.

MALLAH v KETI

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Judgment (14 paragraphs)

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