Walker v Durham & Anor [2003] QCA 531

[1] DAVIES JA: I agree with the reasons for judgment of Wilson J and with the order she proposes.

[2] McPHERSON JA: I agree with the reasons and conclusions of Wilson J, which I have had the advantage of reading. The appeal should be dismissed with costs.

[3] WILSON J: On Tuesday 5 June 2001 the respondent was the driver of a Hyundai Excel motor vehicle which was stationary at a set of traffic lights when it was hit from behind by a Holden Calais driven by the first defendant. She sustained a whiplash injury, and in due course brought this proceeding in the District Court against the first defendant and his insurer (the appellant/second defendant). Liability being admitted, only quantum was in issue at trial. This appeal is against the trial judge's assessment of damages at $110,219.56, which was made up as follows:

Interest on past pain and suffering (interest on $10,000

Interest on special damages (on travel and medical expenses

Interest on past economic loss (at 2.8% pa for 1.5 years) 103.38

Past loss of superannuation (8% of past economic loss) 196.91

Past Griffiths v Kerkemeyer (2 hours per week for 93

Interest on past Griffiths v Kerkemeyer (at 2.8% pa

Future loss of superannuation (9% of future economic loss) 3,600.00

Future Griffiths v Kerkemeyer - gratuitous ($31 per week over

60 years using the 5% tables to calculate present value, then

[4] In assessing quantum, the trial judge accepted the respondent as an honest person who was truthful in her evidence, and he preferred the evidence of Dr A. David N. White (orthopaedic surgeon) and Mr Cameron Fraser (occupational therapist) to that of Dr John Fraser (orthopaedic surgeon) and Dr Nicholas Burke (occupational physician). On appeal it was submitted that his findings of credit and his acceptance of the evidence of Dr White and Mr Cameron Fraser were so contrary to the evidence and compelling inferences to be drawn from it that this Court should interfere. Senior Counsel for the appellant attacked the trial judge's findings with respect to the respondent's credibility on various matters, and submitted that their cumulative effect was overwhelming.

[5] This is an appeal by way of rehearing: District Court of Queensland Act 1967 (Qld) s 118(9); Uniform Civil Procedure Rules 1999 rr 745, 765. Under UCPR r 766(1) -

(a) has all the powers and duties of the court that made the decision appealed from; and

(b) may draw inferences of fact, not inconsistent with the findings of the jury (if any), and may make any order the nature of the case requires; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and

(d) may make the order as to the whole or part of the costs of an appeal it considers appropriate."

See also District Court of Queensland Act 1967 s 119. In accordance with well established principle and practice, the "rehearing" involved a review of the record of proceedings in the trial court rather than a completely fresh hearing. This Court was not asked to receive any further evidence.

[6] An appellate court will not readily overturn a trial judge's primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 -

"67. However, normally, to secure reversal of a primary judge's credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge's decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (`SRA'). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge's conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge's conclusion."

In Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court's role in drawing of inferences from proved or uncontested facts -

"`[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'"

The High Court has recently reviewed "the dichotomy between the foregoing appellate obligations and appellate restraint": Fox v Percy [2003] HCA 22 at [28]; Whisprun Pty Ltd v Dixon; Suvaal v Cessnock City Council [2003] HCA 41. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said -

"[28] ... From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being `incontrovertible', an appellate conclusion may be reached that the decision at trial is `glaringly improbable' or `contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must `not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The `Palitana'):

`... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'

[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."

[7] The respondent described being stationary at the lights when her vehicle was hit from behind. She said she "heard a big bang and it all happened from there. ... I was thrashed forward and then I had my seatbelt on so I was then pushed backwards." As senior counsel for the appellant observed in oral argument, this description was physically incorrect: the sensation would have been of being pushed back into the seat because the car had accelerated forward, and if there were a rebound as a result of the springing of the seat, it would have been relatively minor. Be that as it may, there was minimal damage to her vehicle. There was a tow bar on the back of her vehicle which penetrated the bumper bar of the Holden Calais. There was some white paint from the Holden deposited on her vehicle, along with some scratches on the tow bar and bumper bar. She obtained a quotation to repair her vehicle in the sum of $297.00, but did not have the repairs carried out.

[8] The accident occurred at about 4.15 pm. The respondent said that she did not immediately feel hurt. "I was in shock at first. I was shaken, like a mess." She went home, and gradually started to feel pain in her neck. It slowly worsened, and by 7.00 or 8.00 pm she had developed one of the worst headaches she had ever had. She went to see her general practitioner that evening. She had a constant headache for at least two weeks after the accident. Indeed, she returned to her general practitioner on 20 June 2001. In her evidence she described pain from the top of her shoulders up the back of her neck, to the back of her head and behind her eyes.

[9] At the time of the accident the respondent was aged almost 19. Her vocational skills were limited. She had left school before completing year 11, and had worked behind the counter in a take-away food store and as a trainee in a real estate agency, attending to clerical duties associated with rental properties. Over the 6 or 7 months before the accident, she had been working for the Department of Main Roads as a clerk in the mail room and records room, a job she had found through a temporary employment agency Adecco. She returned to work the day after the accident, she said because she needed the money, and it was not until a week after the accident that she took any time off because of the injury she had sustained in the accident (on 13 June 2001, 2.25 hours).

[10] Dr White examined the respondent in December 2001 and September 2002. He also reviewed x-rays and a MRI scan of her cervical spine taken in December 2001 and January 2002 respectively. Each time he examined her she complained of neck pain and headaches. She said the discomfort in her neck was aggravated by prolonged sitting, prolonged standing and activities such as computer work, and that she found it difficult to get comfortable in bed in spite of changing pillows. Physiotherapy produced some temporary alleviation of her discomfort. She was tender in the mid-line between C4 and C6. Forward flexion and extension were reduced. There was mild desiccation at the C3/4 level. He considered this to be extraordinary in a 19 year old in the absence of trauma, and to be consistent with injury sustained in the accident. The longer the symptoms persisted, the greater the statistical probability of a permanent disability, which he estimated at 10% of the whole person.

[11] Dr John Fraser examined the respondent in May 2002. He took brief details of how the accident occurred and of the extent of damage to her vehicle. He noted her symptoms and that she denied any prior symptoms in the cervical spine. He noted that she did not miss any work immediately after the accident. He reviewed the same x-rays and MRI scan. He thought the x-rays were within the bounds of normality and that the degree of desiccation shown on the MRI scan was a normal variant for a 19 year old. He concluded that the respondent had sustained a strain of the supporting soft tissue structures of the cervical spine, and that her residual symptoms would ultimately resolve. He considered there would be no permanent partial disability. In oral evidence he expressed the opinion that the respondent's continuing symptoms were out of proportion to the injuries she had suffered. Factors which influenced him in reaching that conclusion were that she had required "only a couple of days off work" and that the impact had been trivial. Although he was prepared to accept her subjective complaints of pain at face value, he did not think there was any permanent impairment.

[12] Dr Burke examined the respondent in March 2002. He found some reduction in movement and some tenderness, but considered the overall severity of the impairment and disability quite low. In reaching this conclusion he was influenced by her return to work so soon after the accident, and he deferred to Dr John Fraser on the significance of the MRI findings. I discuss his evidence in relation to the headaches below.

[13] The occupational therapist, Mr Cameron Fraser, assessed the respondent in January 2002. Given the reduced functional capacity he identified, he considered she would be better reducing her working hours from 36 to 30 hours per week. When told at trial that she had been unemployed between July 2002 and February 2003, and that on return to work there had been an exacerbation of her symptoms, he said that fitted with his prognosis at the time of his assessment. He said that the majority of people who continue to have symptoms after the first 6 - 12 months are likely to have some symptoms long-term.

[14] The respondent gave evidence that she had had headaches before the accident - for example, when she had the flu, at the age of 8 when she hit her head and suffered concussion, and when she was taking an oral contraceptive. She was cross-examined about her complaints of "migraines" to her general practitioner in 1998, and agreed that that could have been her description of the type of headaches she was then suffering. Later in the trial the general practitioner's records were put into evidence: they showed about 8 references to headaches beginning with the concussion over a 7 year period ending about 3 years before the trial. Some were noted to be associated with new spectacles, sinus tenderness, tension, and a contraceptive. There was reference to "migraines" in 1998. The respondent was criticised in the appellant's submissions at trial and on appeal for not disclosing this history to the specialists who examined her. It was submitted that she had failed to do so because she believed it would not help her case.

[15] The trial judge found that the respondent had not intentionally misled the examining doctors. Review of their evidence did not reveal that had she told them about her earlier headaches, they would have been likely to have changed their opinions. Dr White would have been interested only in headaches similar to those suffered after the accident; in passing he noted the looseness with which many people use the term "migraine" to describe a bad headache when in fact it has a distinct technical meaning. Dr John Fraser said it would have been of interest to know of the history of headaches, but went no further than saying it may or may not have indicated previous problems with her neck. When Dr Burke first examined respondent, he did not regard headaches as a significant feature of the case, and did not even refer to them in his report. He was shown the general practitioner's records shortly before the trial, and in his oral evidence said that statistically a pre-accident history of headaches increases the risk of post-accident headaches.

[16] In these circumstances, the inference that the respondent deliberately failed to disclose her history of headaches because she thought it would not help her case was not compelling.

[17] On 21 June 2001 the respondent consulted a solicitor and completed a notice under s 37 of the Motor Accident Insurance Act 1994 (Qld). In answer to questions on the form, she said that she had been treated for her injuries by Caboolture Medical Centre (her general practitioner) and Bridgett Venczel of Auscare Physiotherapy at Caboolture. In relation to rehabilitation, she answered that physiotherapy had been recommended and commenced; that it had been provided by Ms Venczel and that she planned to have further treatments. In oral evidence she said she commenced physiotherapy 3 or 4 weeks after the accident. The objective evidence was -

* that Ms Venczel had previously treated the respondent's mother;

* that on 12 July 2001 the respondent's mother contacted the solicitor's office and said her daughter needed a referral for physiotherapy; his firm wrote to the physiotherapist confirming that the respondent was in the process of obtaining a referral from her general practitioner, and confirming that fees would be deferred until resolution of the injury claim;

* that the s 37 notice was lodged with the appellant on 21 July 2001;

* that on 23 July 2001 the appellant made a without prejudice offer to fund rehabilitation;

* that on 31 July 2001 the respondent obtained a referral to Ms Venczel from her general practitioner;

* that the respondent's first consultation with the physiotherapist was on 8 August 2001.

[18] The s 37 notice emerged late in the trial, after the respondent had given evidence. The appellant did not ask for her to be recalled, and so her explanation for the incorrect answers was not obtained.

[19] At trial it was submitted that the circumstances in which the respondent received physiotherapy adversely affected her credit, and that she failed to mitigate her loss by not accepting the appellant's offer to fund rehabilitation. The trial judge accepted that the respondent did not deliberately seek to mislead anyone in relation to the physiotherapy, and that there must have been some misunderstanding on her part when she completed the form. He found that her attendance was to obtain relief from her symptoms rather than to maximise her damages claim. Despite the objective facts as to when the referral was made and when the treatment commenced, those findings were not glaringly improbable or contrary to compelling inferences, particularly given that the respondent's mother had previously been treated by Ms Venczel.

[20] Before and after the accident the respondent and her boyfriend lived downstairs in his mother's house; his mother lived upstairs, and they shared some facilities such as the kitchen. She said she and her boyfriend shared domestic tasks before the accident. She told Mr Cameron Fraser (in January 2002) and Dr Burke (in March 2002) that she required assistance from her boyfriend for 4 weeks after the accident (of 3 hours per week, according to what she told Mr Fraser). At trial her evidence was that she had needed about 3 hours per week throughout the period since the accident.

[21] However, as the trial judge observed, it is apparent from Dr Burke's report that what she described to him was assistance beyond the period of one month after the collision. As counsel for the respondent submitted, this suggests that the respondent was a person who had some difficulty in communicating her needs and difficulties, and the trial judge was right to conclude that there had been some genuine confusion or misunderstanding about these points.

[22] It was perfectly legitimate for the trial judge to use his acceptance of the evidence of the respondent as a foundation for preferring the evidence of Dr White and Mr Cameron Fraser to that of Dr John Fraser and Dr Burke. Dr John Fraser assumed from the small quotation for repairs to the respondent's vehicle that the impact must have been minor, but that was a matter outside his expertise, and as it clearly influenced his assessment of the respondent's injury, the trial judge was right in taking it into account in preferring the evidence of Dr White. The trial judge accepted the respondent's evidence of her symptoms and of the time she took off work because of her symptoms.

[23] The respondent's work at the Department of Main Roads involved taking files between different parts of the office, pushing a mail trolley, taking big boxes out of the trolley, and climbing up a ladder and reaching for high, thick files. After the accident, she remained in this position for some months, although in July 2001 there was a change in the employment agency involved, from Adecco to Kelly Services. However, she experienced pain in her neck, down into her shoulder blades and headaches. She had some days and part days off work; when she was at work she had to seek the assistance of a fellow worker, Skye Williams, particularly with lifting heavy items. In December 2001 the Department of Main Roads was not prepared to keep her, because of the time she had had off work. She moved to another position with Queensland Transport, where she was required to do administrative (including keyboard) duties and reception work. Prolonged sitting brought pain up the back of her neck and headaches, and she continued to take time off. In early 2002, she ceased her association with Kelly Services, and was employed directly by Queensland Transport, doing the same work, until July 2002. Her supervisor there, Michelle Teoh, spoke well of her diligence and performance, but noted difficulties with "migraines". In July 2002 the respondent was unsuccessful in her application for a permanent position with Queensland Transport: this was because of inadequate skills and not because of her physical disability.

[24] The respondent was unemployed from July 2002 until February 2003. About two and a half weeks before the trial (which was in March 2003), she obtained a contract position until 28 March 2003 at Crazy Clark's head office, doing reception and switchboard duties. She was in that position at trial.

[25] The respondent prepared a typewritten schedule of the time she had off work because of her injury (exhibit 5). She said it was prepared from her weekly timesheets kept for her casual employment, and it was consistent with information in her Statement of Loss and Damage (exhibit 34). It began with 2 hours 15 minutes on 13 June 2001, and ended with a similar period on 4 March 2002. Then there were 4 handwritten entries between 19 December 2001 and 8 February 2003.

[26] Seven of the typewritten entries on the schedule had been crossed out. These changes were made on the weekend before trial, when the schedule was compared with the general practitioner's records. As amended, in summary, there were 20 full days and 7 part days in the period to 31 December 2001, and thereafter 5 full days and 4 part days. The respondent was out of work between July 2002 and February 2003, and there was evidence that on her return to work her symptoms were exacerbated.

[27] The trial judge was satisfied the respondent had not had any intention to mislead anyone, that she had made mistakes, and that she had corrected these on obtaining other records. He refused to draw any adverse inference against her because of the changes. Senior counsel for the appellant submitted that the trial judge ought not to have assumed that all the absences from work in the amended schedule related to symptoms of the respondent's injury given her readiness to alter the schedule, her not having had to produce medical certificates to her casual employers, and the absence of documented attendances on medical practitioners on the days claimed (apart from those deleted as they clearly related to other medical issues). The explanation offered by the respondent was a plausible one, and there is no basis for criticism of the trial judge's finding.

Loss of Main Roads Job, Failure to obtain permanent position with Queensland Transport

[28] At trial and on appeal the respondent was criticised in addresses for representing that she lost her job with the Main Roads Department because of her injuries whereas the evidence showed it was because of unrelated absences from work in November and December 2001. Similarly she was criticised for suggesting she failed to obtain a permanent position with Queensland Transport because of her injuries, when the real reason was shown to be her poor level of skills. The trial judge was satisfied that she genuinely believed these things happened because of her injuries. It was the genuineness of her belief that was relevant to her credit, and in all the circumstances the trial judge's conclusion on this point cannot be criticised.

[29] It was submitted that the respondent's explanations to Kelly Services for her absences from work in November and December 2001 suggested that she was manipulative and less than frank with her employer. She was less than frank, but the trial judge's overall assessment of her pre and post accident motivation towards work was favourable, and he accepted the evidence of a fellow worker, Mr Skye Williams, that after the accident she had difficulty doing her work at the Main Roads Department. In other words, he did not overlook this aspect in nevertheless arriving at a favourable assessment of her credit. His approach was unexceptional.

[30] During the period she was unemployed, the respondent applied unsuccessfully for a number of positions, including a job in a Centrelink office. In evidence in chief she was asked whether she disclosed to Centrelink or any other potential employer that she was having problems with her neck. She said she had; that they had asked her and she had told them the truth. But she said she had not disclosed this to Crazy Clark's. However, in cross-examination she conceded that Centrelink was the only potential employer to whom she had made such a disclosure.

[31] The trial judge was satisfied that the respondent genuinely believed she did not obtain employment because she disclosed her neck problem. Senior counsel for the appellant submitted that he ought to have found that that she had deliberately attempted to bolster her claim for economic loss by suggesting numerous employers had rejected her applications when she disclosed her neck condition, when in fact this had occurred only once.

[32] While the trial judge was perhaps generous to the respondent in his finding, it was nevertheless one open to him.

[33] Before the accident the respondent wanted to be a hairdresser. She would have to undertake a six month course, which would cost $10,000.00. Just before the accident her father had agreed to lend her the money, and she had obtained the necessary application forms. After the accident, in November 2001 she told Kelly Services that she wanted to be a hairdresser, but needed to save the $10,000.00 first; in January 2002 she told Mr Cameron Fraser she wanted to be a hairdresser; in March 2002 she told Dr Burke she wanted to be a hairdresser, and that when her current position ended in May 2003 she hoped to enrol in a hairdressing college; and in May 2002 she told Dr John Fraser she wanted to be a hairdresser.

[34] Senior counsel for the appellant submitted that the trial judge ought to have drawn the inference that she had no real interest or ambitions in secretarial/administrative work, and that in all probability she would commence hairdressing in May 2003. Whether or not she really wanted to do secretarial/administrative work, there was evidence that hairdressing was beyond her physical capacity, as she clearly acknowledged in her oral evidence. There is no basis for criticism of the trial judge's conclusion that she did not intend to mislead anyone in her statements about her ambition to become a hairdresser, and her statements should not be construed as an admission that she considered herself capable of doing hairdressing in the future.

[35] Taken individually the trial judge's findings on credibility are unimpeachable. They are not flawed by reference to incontrovertible facts or uncontested testimony. Nor are they glaringly improbable or contrary to compelling inferences. Their cumulative effect does not present any basis for interference by this Court.

[36] The appellant submitted that the total assessment of damages ought to have been only $13,787.05 made up as follows -

[37] The appellant's submission that the trial judge ought to have discounted the damages was based on findings (adverse to the respondent's credit) which it submitted the trial judge ought to have made. Being unprepared to interfere with the findings made by the trial judge, I would be unprepared to interfere with the assessment of damages.