Maynard v Dabinett

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Leonie MAYNARD v Colin Ernest DABINETT JUDGMENT 1 STEIN JA: I agree with Giles JA. 2 GILES JA: The appellant was injured on 3 December 1994 when struck by a car driven by the respondent. She alleged that the respondent was negligent. The respondent denied negligence and alleged contributory negligence. The appellant succeeded on both of those issues. 3 Extensive injuries and disabilities were particularised, and this appeal is concerned with the findings as to the appellant's injuries and disabilities and the assessment of her damages. 4 The injuries were particularised in 13 paragraphs - "(a) Shock; (b) Injury to head; (c) Injury to nose; (d) Injury to neck; (e) Injury to face; (f) Bruising to eyes; (g) Injury to right elbow; (h) Injuries to coccyx; (i) Multiple fractures to the left leg and left knee; (j) Bruising and contusions to the right leg; (k) General bruising and abrasions; (l) Injury to right knee; (m) Loss of consciousness." 5 The disabilities were particularised in 85 paragraphs occupying four pages of typing. They took up a broad notion of disability. Some were cosmetic, for example, lack of hair regrowth in the areas of sutures on the head and scarring. Many were physical, involving one or more of restriction of movement, weakness, pain, or disturbed sensation in a range of parts of the body. They included initial blurred vision; feeling of a pressure band around the head; impairment of the senses of smell and taste; "hot stabbing sensation through each ear"; neck pain, spasms, stiffness and weakness; tightness in the neck and shoulders; pain and restriction in movement in both shoulders, the right elbow, and left hand; weakness in the left hand; "aggravation of wrist symptoms secondary to use of crutches" and pins and needles and numbness in both hands and pain on extremes of wrist movement; pain and restriction in movement in the spine; pain or stiffness in the sacro-iliac joints and pain, numbness and restriction in movement in the left hip; extensive sequelae to the left leg fractures involving a grating sensation, locking, and difficulty in walking affecting both the knee and the foot; and pain, locking and restriction in movement in the right knee. Some were cognitive or psychological, for example, depression, irritability, severe mood swings, impaired memory and concentration, difficulty sleeping, loss of confidence, and self consciousness in crowds. 6 The particulars of disabilities included reference to arthroscopies in both knees, impairment of balance, difficulty running, falling as a result of the disabilities, impairment of social, recreational and sporting activities and difficulty in carrying out household activities, and impairment of sexual relationship. It was said that the disabilities had required that the appellant and her husband move from their existing house to a house more suitable for the appellant's condition. 7 According to the particulars, past out-of-pocket expenses had been met by the workers' compensation insurer of the appellant's employer. The appellant claimed amounts for future attendances upon a general practitioner and an orthopaedic surgeon, for physiotherapy, and for possible operative treatment (especially a total knee replacement). She claimed an amount for future medication. 8 Economic loss was particularised on the basis that, apart from a few days trial in mid-1995, the appellant was unable to continue in her employment as a sales assistant working four days a week. She was aged 50 at the date of the accident, and claimed future economic loss based on her wages as a sales assistant plus superannuation and long service leave until age 65. She also claimed damages for the provision of home care services from mid-1995 and continuing on the basis of 17 hours assistance per week. 9 The trial took place over three days before Hughes ADCJ. In his Honour's reasons he observed that there was "no real contest" that the respondent was negligent, but that there was a contest as to contributory negligence. He also said, "There is an extensive argument as to the seriousness of [the appellant's] injuries and to whether or not the paramedical treatment has [sic] received is justified and the quantum of past and future costs." 10 A measure of the latter argument is that his Honour was favoured with 61 medical reports from 18 different doctors and 17 reports from 6 different other health or occupational professionals, over 200 pages of reports in all. One only of the doctors or other professionals whose reports were tendered, Dr Jill Middleton, gave oral evidence and was cross-examined. The other witnesses were the appellant, her husband, and a police officer who had attended the accident. Most of the time was spent on the appellant's evidence. Her evidence in chief occupies nearly 30 pages of transcript, her cross-examination 54 pages. 11 The trial concluded on 21 September 1998. His Honour gave judgment on 29 October 1998. He gave a verdict for the appellant and judgment for $318,776.00, and ordered that the respondent pay the appellant's costs. According to his reasons the judgment was made up of - Non-economic loss $77,700 Past economic loss $58,200 Future economic loss $46,138 Loss of superannuation $10,000 Fox v Wood $6,818 Past out-of-pocket expenses $104,920 Future medical expenses $15,000 Total $318,776

It will be seen that nothing was allowed in relation to long service leave or for the provision of home care services. 12 The essence of the appellant's appeal was that his Honour did not give adequate reasons for his findings as to the appellant's injuries and disabilities and the assessment of her damages. The reasons as a whole occupied six pages. It is appropriate to set out the entirety of the relevant parts of the reasons. 13 The first few pages of the reasons included - "On 3 December 1994 the accident which is the subject of this litigation occurred. The plaintiff claims damages pursuant to Pt 79 of the Act as well as past and future economic loss, extensive Griffith and Kirkemeyer and extensive out-of-pocket expenses. The plaintiff complains of injury to her head, nose, neck, face, eyes, elbows, coccyx, left leg, left knee, shock and sequelae. She claims that since the accident she has had continuing disabilities which run for four pages in the Pt 12 particulars dated 26 February 1998." 14 After dealing with negligence and contributory negligence, his Honour said - "Turning now to damages. The plaintiff was taken to hospital and suffered a closed head injury as well as a broken leg. She also had bruising to other parts of her body, including that of the right leg and general bruising and abrasions. The medical evidence between the defendant and the plaintiff conflicts greatly and as a result I have carefully read all the medical evidence of both the plaintiff and the defendant and by and large I have come to the view that the multiple complaints as evidenced by the amended Pt 12 particulars cannot, as Dr Potter says, be a result of the accident and I quote from Dr Potter's report: 'There is no doubt that this lady has had a significant injury and I have charted the clinical findings. However, any other additional symptomatologies claimed do not come from the motor accident and come from other factors. To suggest they are all post-accident is not biologically rational nor historically consistent and not associated with any mechanism that makes sense.' I accept that statement of Dr Potter and find that, as a fact, the plaintiff suffered a closed head injury and injury to her left knee. I also find that the main injury now still is her left knee and the complaints of other parts of her body are not as a result of a motor vehicle accident but as a result of various other difficulties that this plaintiff has had. She had, as Dr Jones pointed out, a prior compensable injury to her right leg in which she suffered a fracture to her right tibia and fibula at the age of twenty-two. She was suffering as reported by Dr Jones of a thyroid deficiency and the need for thyroid tablets. As well as this hormone replacement therapy for the past five or six years as she was having a lot of menopausal symptoms and anxiety. This was contained in Dr Jones' report of 14 March 1997. Having read all the medical reports I have come to the conclusion that Mrs Maynard has had a severe injury to her left knee and she continues to have a disability with her left knee as a result of the accident. I am not convinced that there is any brain impairment nor any other sequelae of a closed head injury now. I accept as the conclusion of Dr Jones that she is independent of personal care and most activities of daily living and is capable of going horse riding and swimming, which she gave evidence of. I also agree with him that the continuing hands-on therapy are not improving her condition as indeed she herself gave evidence. With regard to her present earning capacity, Dr Jones in his report of 14 March 1997 gave the opinion that she was capable of work three days a week in a sales or clerical position. She had similar jobs before both with Dr Gray and with the Opal Sales Company. I agree with that assessment. I find therefore that since 14 March 1997 her loss of earnings - 14 March is the date of Dr Jones' report - both from that date and into the future can be quantified at, doing the best I can, $200 a week, which allows $15,000 in the past and $46,138 for the future to age sixty. That is, $200 a week multiplied for six years which is $271.4 less 15 per cent for vicissitudes. I find that, given her husband will be seventy-nine at that time - that is, when the plaintiff is aged sixty - it is reasonable that companionship will dictate her retiring age will be about 60 years. Therefore, going to the past economic loss and s 79, I find pursuant to s 79 of the Act that the plaintiff has suffered 30 per cent of a most extreme case which, using the latest table, is $77,700. I find the past economic loss of $58,200. That is the sum claimed in the statement of particulars plus $15,000. Fox and Wood is agreed at $6,818. I have made a calculation and rounding it out of superannuation for both the past and future at $10,000. The future economic loss, as I pointed out my calculations before, of $46,138. I have made an allowance of future medical expenses of $15,000. The out-of-pocket expenses were agreed at $104,920. Adding those up it comes to $318,776."

15 In a case such as the present, the giving of reasons for arriving at the claimant's damages is generally "an incident of the judicial process" (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667). What are sufficient reasons depends on why the reasons are required and the particular circumstances, but important functions of the giving of reasons are to enable the parties to know why the damages have been assessed in the particular amount and to enable a dissatisfied party to exercise a right of appeal. Exercise of a right of appeal in relation to assessment of damages will be impeded if it is not known why the judge arrived at the particular amount - how can it be said whether the judge was right or wrong? 16 It is not necessary for the reasons to be lengthy or elaborate, or for every fact leading or relevant to the ultimate decision or the detailed chain of reasoning to be set out (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSLWR 247 at 271, 280). Nor is it necessary for every matter raised in the proceedings to be dealt with (Kiama Constructions Pty Ltd v Davey (1986) 40 NSWLR 639 at 647). 17 But it is necessary that the reasons show that attention has been given to the evidence critical to the issues in the case and that the basis of critical findings be apparent (Soulemezis v Dudley (Holdings) Pty Ltd at 281; Mifsud v Campbell (1991) 21 NSWLR 725 at 728). The "broad outline and constituent facts on which [the judge] has acted" should be apparent (Soulemezis v Dudley (Holdings) Pty Ltd at 273 per Mahoney JA), or the "essential ground or grounds on which the decision rests should be articulated", including why one conclusion rather than another is to be preferred (Soulemezis v Dudley (Holdings) Pty Ltd at 280 per McHugh JA). As was said by Samuels JA in Strbak v Newton (NSWCA, 18 July 1989, unreported) - " … It is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given." 18 The ability effectively to exercise a right of appeal guides, and sets a minimum standard for, the sufficiency of reasons (Soulemezis v Dudley (Holdings) Pty Ltd at 280-1), always with regard to the particular circumstances. 19 In considering the circumstances of the present case, and applying the foregoing principles, it is necessary to bear in mind the manner in which the trial before Hughes ADCJ was conducted. As is not uncommon, his Honour had an abundance of medical and other reports, but with the one exception no oral evidence from the authors of the reports to assist him in evaluating them and reconciling or choosing between them. The realities of much litigation of the present kind have to be acknowledged, and they do not make the judge's task any easier. In such circumstances, a judge's findings may be greatly dependent on his assessment of the claimant as an accurate historian of the claimant's injuries and disabilities, and the judge's preference for one medical or occupational opinion rather than another or others may be difficult to displace on appeal. But it is still necessary for the judge to explain, conformably with the principles described above, why the particular medical or occupational opinion is preferred, and that will normally involve at least some analysis of the divergent opinions. If, as may often be the case, the judge's assessment of the reliability of the claimant is significant to the preference, it may be all the more important that the judge so indicate, and that the explanation extend to why the particular view is taken of the claimant's evidence. 20 Regrettably, and with full appreciation of the difficulty in which his Honour was placed by the manner in which the trial was conducted, I do not think he gave adequate reasons for his findings as to the appellant's injuries and disabilities and the assessment of her damages. A number of matters contribute to their deficiency. 21 While stating that he had carefully read all the medical evidence, which he described as conflicting greatly, his Honour neither described the respects in which there were different opinions nor, beyond the bald acceptance of Dr Potter, why he found that the only complaints attributable to the accident related to a closed head injury (no longer symptomatic) and the left knee. The appellant's evidence put forward a great many other complaints, broadly conformably with the particulars. It seems (although it is not clear) that his Honour accepted that the appellant had disabilities going beyond the complaints he upheld, but regarded them as a result of "various other difficulties that this plaintiff has had". The other difficulties which he had in mind may have been the fracture, thyroid deficiency and hormone replacement therapy, but preference for those difficulties as the reason for the other complaints is not explained. 22 Even the finding based on acceptance of Dr Potter was qualified. The finding as to some of the multiple complaints but not others was "by and large", and reference to the passage from Dr Potter's report took the reader only to another unspecific selection of integers of what was described only as a significant injury. This exacerbates the unsatisfactory features identified in the preceding paragraph. 23 Reference to Dr Potter's report shows that he accepted that there was a fractured left knee, a head injury, a neck injury, and facial lacerations, and that there was a component of depression. Dr Potter also found symptomatology relating to both knees. He referred to "behavioural issues and degenerative issues" as "factors … independent of the mva", and to pains "while mobilising". If attention be confined to Dr Potter's reports (there were two), they supported greater injury and disability attributable to the accident than stated by his Honour, and were arguably consistent with disabilities not directly due to the accident but causally related to it. There was abundant evidence, from the appellant and from other doctors, of continuing cervical problems and of effects upon the right knee and the shoulders, arms and hands of strain flowing from the injured left knee and the use of crutches. None of this was dealt with by his Honour. 24 Brain damage was rejected, but the appellant's evidence and the reports (including Dr Potter's reference to a component of depression and a report of Dr James Maguire, a psychiatrist who assessed the appellant on behalf of the respondent) gave considerable support for emotional disturbance causally related to the accident. Dr Middleton referred to "emotional/psychological trauma resulting from the initial accident and [the appellant's] ongoing pains and disabilities". This also was not dealt with by his Honour. 25 The denial of damages for home care services was because of acceptance of Dr Jones' opinion that the appellant was "independent of personal care and most activities of daily living …". This left some activities of daily living possibly affected by the appellant's disabilities, and there was much evidence from the appellant and her husband, with support from the opinion of Dr Middleton, which if accepted demonstrated the need for assistance during recovery, some continuing need for assistance, and a likelihood of increased need for assistance in the future. His Honour did not express reservations as to the credibility of the appellant or her husband. The allowance for future medical expenses would seem to accept deterioration in the appellant's condition with a need for assistance in the future. The one-sentence treatment of the matter by his Honour, with respect, was less than sufficient attention to a significant element in the appellant's claim. 26 In my opinion these matters are enough to demonstrate, without going further, the deficiency in his Honour's reasons. While detailed exposition was not necessary, in order that he assess the appellant's damages his Honour had to find with clarity the injuries she had suffered in the accident and the disabilities causally related to the accident; where there was conflict, it had to be apparent that he had paid regard to the full extent of the appellant's claims and had made his finding on rational grounds explaining his resolution of the conflict. In the circumstances of this case, and particularly because he did not express reservations as to the credibility of the appellant or her husband, it was not sufficient to state acceptance of the opinions of Dr Potter and Dr Jones without noticing the evidence of the appellant and her husband and the conflicting opinions and, however, succinctly, explaining his preference. Lesser difficulties in the reasons aside, they did not do this. 27 It was common ground that, if the appeal was allowed, the Court could not reassess the appellant's damages. I propose that the appeal be allowed with costs, that the judgment for $318,776.00 be set aside, that the proceedings be remitted to the District Court for rehearing limited to assessment of damages, and that the respondent have a certificate under the Suitors Fund Act if qualified. The order made below for the costs of the trial should stand.

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