BROWN v FLEMMING SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 2 April 1992, 2 April 1992 [1992] NSWCA 31 Damages — appeal from Master's assessment — whether damages inadequate — no issue of principle — appeal dismissed. Sheller JA This is an appeal from a judgment of Master McLaughlin given on 2 August 1991 in proceedings in which the appellant, Glenn Hilton Brown, sued the defendant for injuries and consequent disabilities and loss which he claimed to have sustained as a result of a motor vehicle accident which occurred on 28 December 1983. Liability was admitted and the task which the Master, therefore, undertook was that of assessing damages. The ultimate award he made was for a total amount of $24,436.94 of which one component was general damages for pain and suffering of $10,000 and interest on that amount of $2,812. Another component was for past and future economic loss of $10,000 and an ultimate amount of out-of-pocket expenses of $1,624.94. The appeal, as it was ultimately presented to us, raised three matters of complaint about the Master's award. Firstly, it was said that he had been in error in finding that a low back disability, of which the appellant complained, was not causally related to the motor vehicle accident. Second, it was said that, even if the Master were right in that respect the general damages of $10,000 for the cervical injury which the Master found the appellant had suffered was so low that this Court ought to intervene to correct it. Thirdly, it was said that the Master had erroneously neglected to award interest for past economic loss. The appellant, who was born on 15 January 1966, was involved in accidents on two successive days. The first, 28 December 1983 and the second on 29 December 1983. In the first he was a passenger in a motor vehicle which left the roadway, became airborne, landed on its roof, rolled and finally came to rest on its roof. In respect of that accident the appellant claimed that he had, as a result, suffered an injury to the cervical spine and the Master accepted that that was so. The following day the appellant, while riding a motor cycle in the back yard of some friends, fell off. There was some evidence from which it might be inferred that dizziness resulting from the motor vehicle accident had caused the fall. Subsequently the appellant developed symptoms in his thoraco lumbar spine. It was the case for the appellant that in the motor vehicle accident he suffered a whiplash type injury to his neck and that, in consequence of that injury, he suffered serious and continuing pain to his neck, and to his back. The master was satisfied that, at the time of the hearing, the appellant suffered severe pain in his back and said that this was hardly contested by the defendant. However, there was a strong dispute as to the nexus between that back pain and the injury which the plaintiff suffered in the motor accident on 28 December 1983. As I have said, that was a principal, if not the principal, issue during the trial. 2 UNREPORTED JUDGMENTS At the trial the appellant's case was put on the alternate basis - either that the injury to the thoraco lumbar spine was suffered in the motor vehicle accident or, alternatively, that it was suffered in the fall the next day, which was claimed indirectly to have been caused by the motor vehicle accident. The Master was not satisfied that the plaintiffs low back symptoms were related to the motor vehicle accident and he rejected the claim that the fall the next day from the motor bicycle was in any way related to the motor vehicle accident. The latter finding is not challenged. The Master, in his judgment, set out the circumstances of the accident and described what the appellant said he felt after he got out of the motor vehicle and the sensations of pain on that occasion and on the following morning, and I set out what the Master said at appeal book page 186. "He said that after he got out of the vehicle he felt 'just shaken up'. He remained at the scene of the accident and gave a statement to the police, who then conveyed him to the Rylstone Hospital. The P4 traffic collision report (which was in evidence as Ex D) set forth the injuries to the plaintiff as 'sore neck'. The plaintiff said that at the Rylstone Hospital he was given a check over, and then was allowed to proceed to the residence of relatives at Kandos with whom he was staying. He was conveyed there by his mother who had met him at the hospital. At Kandos the plaintiff rested for the remainder of the day. The plaintiff said that when he awakened the following morning, 29 December, he suffered an excruciating pain in his neck, and required his mother to assist him. Eventually he got up and during the course of the day felt somewhat better. In the afternoon he went with his cousins to visit other cousins named Potts at Mudgee." The visit to the Potts family resulted in the appellant riding a motorbike in the back yard and his falling in the accident which I have already referred to. He said of that that he had no recollection of falling. He recalled getting up from the ground. He said his neck was still in pain and he was feeling a bit dizzy, he felt sick and nauseous. The incident occurred at 3 o'clock in the afternoon and that evening the plaintiff's mother took him to the Rylstone Hospital where he was admitted at about 10.15 pm. The records of the Rylstone Hospital, which were referred to by the Master, stated that the plaintiffs presenting problem was - head injury concussion. The plaintiff remained in hospital until 31 December 1983 when he was discharged and returned to the residence of his relatives at Kandos. While he was in hospital he wore a soft neck collar which he said gave him immediate relief from the pain in his neck. It should be observed that the appellant has, since the age of seven, suffered from diabetes. In his judgment the Master set out in summary form the plaintiff's evidence-in-chief as to the pain that he said he suffered at the time of the trial and I set out from the Master's judgment a passage at appeal book page 188: "The plaintiff said in his evidence-in-chief that he suffered pain between his shoulder blades and extending down his spine, and that he also felt a clicking in his neck and back when he rotated or turned his head. Sitting for protracted periods exacerbates the pain between his shoulder blades. The plaintiff complained of having suffered that pain whilst he was working with an entity called Mung Dynasty, where he was employed in early April 1984. The plaintiff said he left that position because of the pain that he was suffering and he returned from Sydney to his home at Taree where he resided with his parents. URJ BROWN v FLEMMING (Sheller JA) 3 He said in his evidence that eventually, on 16 February 1987, he consulted a general practitioner, Dr NGS Wallman, at Taree. The reason for this was, according to the plaintiff, that he was still suffering a sharp pain between the shoulder blades and increasingly suffering from the clicking noise in his back and neck when he woke up and, further, that after any strenuous activity, such as playing sports, he was in pain the following morning and found it difficult to become mobile. At this time, in early 1987, the plaintiff was participating in competition squash once a week. The plaintiff said that from the time of the accident until he saw Dr Wallman the pain and condition of his back had become progressively worse, and that by February 1987 they had become 'noticeably unbearable' and the plaintiff thought that he should seek professional advice. Many of the positions of employment which the plaintiff held at various times involved travelling, especially long-distance driving, in a motor vehicle. The plaintiff complained that long-distance travelling aggravated his back condition. Nevertheless, the plaintiff still continued to seek, and to obtain positions which required him to drive long distances, or to perform physical activity. The plaintiff said that on a number of occasions he resigned from positions of employment on account of the pain which he was suffering. The plaintiff concluded his evidence-in-chief by saying: 'Since the accident it took a couple of years really for the injuries to become apparent, that I was feeling them on a day-to-day basis. Since that time they have not really increased and have not decreased either'. It will be appreciated from the foregoing summary of the plaintiff's evidence-in-chief that it was his contention that the pain in his back did not manifest itself for about two years after the accident - that is, until about the end of 1985 or beginning of 1986. The only complaint made by the plaintiff to the police at the time of the accident was of a sore neck. When he was admitted to the Rylstone Hospital the following day it was for concussion as a result of falling off the motor bike. No reference was made on that occasion to any problem with his back." It is to be observed from what the Master said in that passage that the only complaint that the plaintiff made at the time of the accident was of a sore neck and indeed it appears that, despite the part of his evidence, to which I will return in a moment, which has been referred to in argument put on behalf of him, that no complaint was made to anybody about a back injury until a date in 1987 when he visited Dr Wallman in the circumstances referred to by the Master in the passage that I have just quoted. The Master, in this passage, relied upon the part of the plaintiff's evidence-in-chief which he quotes to express the opinion that the pain in the appellant's back did not manifest itself for about two years after the accident. In the course of submissions made on behalf of the appellant by Mr Mcllwaine, reference was made to a passage in his evidence-in-chief where he said: "That since the accident over the years the pain and conditions have progressively become worse and, at that time, they became noticeably unbearable and I thought I had better seek some advice in case something serious was wrong." His earlier evidence shows the pain and conditions he was referring to were in his neck, shoulders and back and that the advice he was seeking was the advice from Dr Wallman in February 1987. 4 UNREPORTED JUDGMENTS I do not think that this evidence particularly in light of the view - to which I will come in a moment that the Master expressed about the appellant's evidence generally is such as to undermine, or allow us to interfere with, that part of the Master's finding concerning the manifestation of pain in the back. It is, as I have said, plain that no complaint was made until February 1987 about back pain and, if indeed one were to accept the passage in the evidence to which I have just referred as a truthful account of the plaintiff's condition from the time of the accident, it makes it even more extraordinary that no advice was sought until February 1987. The Master pointed out that under cross-examination the appellant did not dispute that the only complaint which he made to the police immediately after the accident was that he had a sore neck, and he also agreed the reason why he went to the Rylstone Hospital immediately after the accident was because he was concerned about the condition of his cousin who had been the driver of the motor vehicle. It is unnecessary to describe in greater detail, in view of the way the appeal has been presented, the occasion on which the plaintiff fell from the motor bicycle. He agreed under cross-examination that the fall from the trail bike could be regarded as a totally independent cause of any problem which he might have suffered from his back, and that that was a cause quite unrelated to the motor vehicle accident of 28 December. The Master, in the course of his judgment, referred to the fact that the plaintiff had seen Dr Wallman regularly in the years before early 1987 and the fact that in those preceding years he had told Dr Wallman of any aches and other problems that he had experienced, but that it was not until February 1987 that he made any complaint concerning his back, or indeed concerning his neck. Indeed, at no consultation before February 1987 did the plaintiff even mention to Dr Wallman that he had been involved in a motor vehicle accident. The appellant was a keen sportsman before the accident. One of the sporting activities in which he participated was competition squash which he played once a week. He continued to participate in competition squash until the latter part of 1989. It also, as the Master pointed out, emerged from his cross-examination that he had suffered an injury to his back in early 1987 whilst he was employed by Watson and Crane lifting boxes. He apparently jumped from a step ladder and jarred his back. Dr Wallman referred the appellant to Dr Seaton, an orthopaedic surgeon in Sydney, and I will return to refer to the medical evidence from Dr Wallman, Dr Seaton and a Dr Fuller, who also saw the plaintiff. In this judgment the Master, having referred to the various matters in cross-examination which I have set out, concluded that there were a number of unusual features concerning the appellant's claim and that, while it appeared to be a straight-forward account given by him in his evidence-in-chief concerning the physical consequences of the accident, this had to be scrutinised with considerable care. On the plaintiff's evidence he said that he considered that in it - and especially under cross-examination, he was not as frank as might have been expected. The relatively good impression which he made in his evidence-in-chief did not continue through his cross examination. Evidence had also been given by the plaintiffs mother, Mrs Stewart, who had had eight years experience as a nursing aid and also some experience in massage. The Master rejected Mrs Stewart's evidence concerning a complaint or statement that she said had been made by her by the appellant. He said that, having had the opportunity of URJ BROWN v FLEMMING (Sheller JA) 5 observing Mrs Stewart in the witness box, he was not satisfied that before the plaintiff's visit to Dr Wallman in February 1987 she was aware of any complaints by the plaintiff concerning the condition of his back. I emphasise again that the situation therefore remains that, from December 1983, when the accident occurred, up to the time that the appellant visited Dr Wallman, over three years later, there was no evidence that he had complained to anybody about the back condition. The Master, in his judgment, summarised the medical evidence and I set out what he says at appeal book page 193: "The totality of the medical evidence in this matter was given by way of written reports. None of the doctors who either treated the plaintiff or saw him for the purposes of the present litigation was required to attend for cross-examination. Dr Wallman, Dr Seaton and Dr KM Fuller (who saw the plaintiff on 31 August 1988 and to whom the plaintiff did give a history of his involvement in the fall from the trail bike on the day after the motor accident) were all of the view that the complaints of the plaintiff were consistent with musculo ligamentous injury. Dr Wallman expressed a prognosis of continued gradual improvement with the passage of time, saying, however, that 'he may still have some residual problems relating to his spine in the foreseeable future and this would most likely preclude him from involvement in heavy labour intensive work'. Dr Seaton said he could find no orthopaedic abnormality, and that the plaintiff had a full range of movement. Dr Fuller said that there were no objective physical findings to support the plaintiff's complaint of continuing disability, but that he had no reason to doubt that the plaintiff did have some symptoms affecting his neck and low back." The Master then turned to the first matter which he had to resolve, that is to say, whether the problems of which the appellant complained at the trial were the result of the motor vehicle accident on the 28 December 1983. He said as follows: "The mere fact of the intervening fall from the trail bike on the day after the motor vehicle accident must, of itself, be regarded as significant and must alert the Court to the possibility that that fall, rather than the motor accident, was the cause of the plaintiffs present problems. Had that intervening incident not occurred, then there would be little reason to doubt that the plaintiff's present complaints, if genuine, were the result of the motor vehicle accident, even if it might be considered somewhat strange that these complaints did not manifest themselves for a period of almost two years after that accident. However, the only complaints made by the plaintiff immediately after the accident related to his neck. I have little doubt that the plaintiff did suffer an injury to his neck in the motor vehicle accident. It is possible, further, that the plaintiff suffered some problem with his back as a result of the fall from the trail bike on the following day. He certainly suffered concussion as a result of that fall." The Master then went on to say that there was nothing to establish that the fall from the trail bike in any way related to the motor vehicle accident and, as I say, that conclusion is not complained of in this appeal. The Master then went on to say, and I quote from appeal book page 195: "In the light of the evidence to which I have referred, and having had an opportunity of observing the plaintiff in the witness box, and especially of observing his manner and demeanour in answering questions in cross-examination, I am not satisfied, upon the balance of probabilities, that any 6 UNREPORTED JUDGMENTS problems which the plaintiff may have suffered with his back since 1987 are in any way related to the motor vehicle accident in which he was involved on 28 December 1983." It is this finding by the Master that is the first matter the subject of challenge in this appeal. In a careful argument in which Mr McIlwaine put everything that could be said on behalf of the appeal, it was pointed out that in the first paragraph of the passage that I have quoted, the Master seemed to suggest that, were it not for the intervening fall from the motor bicycle, the lower back injury could be said, with little reason to doubt, to have resulted from the motor vehicle accident. The Master had, of course, accepted, in a passage to which I have already referred, that at the time of the trial the appellant suffered from the low back injury of which he complained. The submission then goes on to point out that the Master said that it is possible that the plaintiff suffered some problem with his back as a result of the fall from the trail bike on the following day. If it be right to say that, the Master was in this passage offering two possibilities, one, that the back injury resulted from the motor vehicle accident, the other that it resulted from the trail bike incident; then, the argument runs, the nature of the motor vehicle event was such that it was far more likely that it would have resulted from that then from the trail bike incident. However, having carefully studied this part of the Master's judgment, in my opinion this argument, though it may have some textural attraction, is without substance. In my opinion the Master clearly formed the view that he did, namely, that the back injury did not result from the motor vehicle accident, on the basis of the evidence that had been given, the lack of complaint and which he set out in his judgment, and in light of the view that he took generally about the frankness of the appellant as a witness, particularly in cross-examination. Properly understood, I think the most that can be made of what the Master said is, that he recognised that although the injury did not flow from the motor vehicle accident, in his view it was possible that the plaintiff had suffered some problem with his back as a result of the fall from the trail bike. I certainly do not think that anything that the Master said, looked at in substance, contradicts the conclusion that he reached, as he said, having had an opportunity of observing the plaintiff in the witness box and especially of observing his manner and demeanour in answering questions in cross-examination, that any problems the plaintiff may have suffered with his back since 1987 were not, to his satisfaction, in any way related to the motor vehicle accident on 28 December. In my opinion there is no basis upon which we would be entitled to interfere with this finding on the basis of authority, but in my opinion, in any event, it is entirely justified by the matters to which the Master referred. In my opinion that ground in support of the appeal fails. The second ground of complaint goes to the question of the sufficiency or adequacy of damages for the cervical injury. The Master stated that he was satisfied that in the motor vehicle accident the appellant did suffer injury to his neck. In the course of his judgment, in passages to which I have already referred, the Master set out the pain that the appellant complained of. In dealing with the question of economic loss, which is now not an issue on this appeal except in regard to the question of interest, the Master said that he was satisfied that very little of the loss of earning capacity alleged on behalf of the appellant could in any way be attributed to his physical complaints, irrespective of whether those complaints could be attributed to the motor vehicle accident. URJ BROWN v FLEMMING (Sheller JA) 7 He also pointed out that, insofar as there were periods of unemployment, they were attributed essentially to the condition of the appellant's low back which, as Thave said, he had concluded - in my opinion correctly - to be an injury for which the defendant could not be held liable. He concluded by saying that he doubted whether the injury to the neck had in fact caused any significant loss in earning capacity. Coming to deal expressly with the question of general damages, he said that he has already stated that he was satisfied that the plaintiff had suffered an injury to his neck, that in consequence he had pain in his neck, which required a neck pillow for a period, and in his view, it was appropriate that the plaintiff receive general damages in the sum of $10,000. Mr Mcllwaine, in the course of his submissions, referred, in a little detail, to the reports of the doctors and to the evidence that had been given by the plaintiff. There is no doubt that the Master was mindful of the medical evidence. He set out, in summary form, the relevant conclusions of Doctors Wallman, Seaton and Fuller and I quote from the judgment commencing at appeal book page 193: "Dr Wallman, Dr Seaton and Dr KM Fuller (who saw the plaintiff on 31 August 1988, and to whom the plaintiff did give a history of his involvement in the fall from the trail bike on the day after the motor accident) were all of the view that the complaints of the plaintiff were consistent with musculo ligamentous injury. Dr Wallman expressed a prognosis of continued gradual improvement with the passage of time, saying, however, that 'he may still have some residual problems relating to his spine in the foreseeable future and this would most likely preclude him from involvement in heavy labour intensive work'. Dr Seaton said that he could find no orthopaedic abnormality and that the plaintiff had a full range of movement. Dr Fuller said that there was no objective physical finding to support the plaintiff's complaint of continuing disability, but that he had no reason to doubt that the plaintiff did have some symptoms affecting his neck and low back." The evidence that was given by the appellant is, of course, undermined by the general view that the Master had expressed as to his frankness. Mr King, who appeared for the respondent, referred to a passage in the appellant's evidence in which he was asked, and I quote the question: "Well, you see, your real problem, so far as you are concerned, over the last few years has been your back, hasn't it?" to which the respondent replied: "Mainly." Mr King emphasised what, in my opinion, is a correct factor in the medical evidence, that the prognosis was substantially based upon subjective considerations, that is to say, upon what the appellant said about his condition. There is some room for the conclusion that the doctors considered there could be some ongoing discomfort. Having made the award of $10,000 for general damages that he did, the Master came to consider the question of interest on general damages and, to that end, expressed the view that, of the $10,000, $5,000 should be attributed to the period from the accident to the date of judgment. On that basis it is urged, on behalf of the appellant, that only $5,000 was allowed for general damages for a period of some eight years and only $5,000 for future disability. The question, so far as we are concerned, is whether the award of $10,000 is outside the range of a sound discretionary judgment. In my opinion, bearing in mind carefully the medical evidence to which reference has been made, and what the appellant had to say about his condition, I do not think that it can be said that 8 UNREPORTED JUDGMENTS the award of $10,000 is below the range of what can be said to be a sound discretionary judgment. In my opinion the appeal on this ground fails. The final matter of complaint relates to the fact that in his award the Master made no allowance for interest on past economic loss. The Master considered, in some detail, the appellant's employment history and reached the conclusions which I have already referred to about the loss of earning capacity and that little could be attributed to the physical complaints of the appellant. He said that, in his view, it was not possible to calculate with mathematical precision any loss of earning capacity, either past or future, which the plaintiff may have suffered as a result of the injury to his neck. He then said that it seemed to him appropriate that the plaintiff should be awarded a very modest cushion on account of that condition; the component in that regard he fixed at $10,000. It is correct to say that, at the end of his judgment when setting out the breakup of the total amount of damages, he referred to past and future economic loss. In my opinion it is fairly plain that the Master regarded it as impossible to evaluate with precision any economic loss that had been suffered up to the date of trial. He took a broad view and made provision for a future situation. This seems to me to be the meaning in his judgment of the word "cushion". Consistent with that, it would be entirely appropriate indeed correct - for him to have awarded no interest and I think it is on that basis that he proceeded. However, even if I be wrong as to that, in the view that he took as to the figure of fixing past or future economic loss, I think it is within the range of his discretion to have provided for a cushion which would embrace what might otherwise be considered a claim for interest and, on that basis, to award a global figure of $10,000. In my opinion this ground also fails. Accordingly, I would propose that the appeal be dismissed with costs. Mahoney JA I agree. Priestley JA I also agree. The order of the Court is, therefore, that the appeal is dismissed with costs. Counsel: Appellant: R S McILWAINE Respondent: L KING Solicitors: Appellant: STACKS - THE LAW FIRM Respondent: SOLICITOR FOR GOVERNMENT INSURANCE OFFICE