CUMMINS v BROCKWELL BROCKWELL v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 15 October 1992, 16 April 1993 [1993] NSWCA 79 APPEALS — TWO MOTOR CAR ACCIDENT CASES WITH COMMON PLAINTIFF HEARD TOGETHER — LEAVE TO APPEAL APPEALS — two motor car accident cases with common plaintiff heard together — question in one appeal whether damages excessive — in the other whether damages inadequate. APPLICATION FOR LEAVE TO APPEAL — s101(2)(c) Supreme Court Act — leave sought to cross appeal in one case on question of costs. Plaintiff involved in two separate motor vehicle accidents — suffered minor symptoms until after a separate work related accident — in proceedings relating to first accident, defendant found negligent and damages awarded — in proceedings relating to second accident, other defendant also found negligent but judgment entered in favour of defendant and no order as to costs as plaintiff suffered no significant damage — appeals from the two proceedings heard together: (1) defendant in first matter asserts plaintiff's condition mostly caused by other incidents and not so bad as to justify so substantial an award; (2) regarding second matter, plaintiff asserts that damage was caused, judgment should be entered in her favour as all elements of negligence established and damages award be made; (3) defendant in second matter seeks leave to appeal against no order as to costs having been made. Held: as to (1) reasonably open on materials to come to findings and award (per curiam); although very difficult to accept (per Handley JA); (2) significance of argument nominal and does not justify upholding appeal; (3) costs order sensible on facts. ORDERS 1. First appeal dismissed with costs. 2. Second appeal dismissed, no order as to costs. 3. Leave to appeal refused, no order as to costs. Priestley JA Two appeals heard together. These are appeals against judgments of Master Greenwood in two cases in which Mrs K Brockwell was the plaintiff against a different defendant in each. I will call the defendant in the first case the first defendant and in the second case the second defendant. In the first case the plaintiff claimed damages against the first defendant in respect of a car accident that happened on 25 July 1980. In the second case the plaintiff claimed damages against the second defendant in respect of a car accident that happened on 9 October 1981. In the first case Master Greenwood entered judgment in the plaintiff's favour in the sum of $127,435. In the second, the Master entered judgment in the second defendant's favour, and made no order for costs. This was on the basis that although the accident was caused by the second defendant's negligence, the plaintiff had suffered no significant damage. 2 UNREPORTED JUDGMENTS The first defendant has appealed against the amount of the judgment against her but not against liability. The plaintiff has appealed against the judgment in the second case. The second defendant has sought leave to appeal against the costs order in her case. The first defendant's appeal depends on two basic assertions: 1. the plaintiff's condition at the time of trial was not as bad as she claimed; 2. whatever the truth of her disabilities, a greater part of them was caused by other incidents suffered by the plaintiff, including the second accident, than the Master found. The plaintiff's appeal in the second case is based on (a) the Master's finding that the second defendant's negligence caused the accident, and (b) that contrary to the Master's finding concerning damage, some damage was caused to her; the result being that all the elements of negligence were established and judgment should have been entered in her favour. The second defendant's application for leave is put two ways: first, it is said that the Master was wrong in finding the second defendant was negligent, so that judgment should have been entered for her, together with a costs order in her favour; alternatively, even on the Master's findings, a costs order should have been entered in her favour. Main facts in the two appeals. The issues in the two cases are intertwined, and I will deal with them together. A fully detailed statement of the facts is not necessary to deal with the issues that were argued in this court. The general nature of the facts and the medical issues sufficiently appears from a report by Dr J Goldie, obtained by the plaintiff's solicitors, dated 18 June 1986, which became Exhibit E before the Master. It said: "T have to advise that the abovenamed patient was examined by me at your request on the 18th of June 1986. I have received your letter of 14.5.86, together with the enclosed reports, which I have read. Miss Brockwell's present symptoms are those of episodes of neck stiffness. They are often of sudden onset and may occur after sleep. They can also occur after lifting heavy objects. She described a recent episode which occurred about ten days ago which required medical attention and she says it was relieved by a manipulation of the neck carried out by a doctor in his office. She says she does not engage in strenuous sporting activities because she thinks this may cause neck stiffness and discomfort. She has periods where she has no symptoms or only minimal symptoms. She is aged 23 and currently employed as a barmaid. She had previously been a shop assistant. She described an accident in July, 1980 when she was a front seat passenger in a car which was stationary. A car ran into the back of the vehicle. Neck stiffness and pain were felt the next day. She attended a doctor. X-rays were performed and a cervical collar was prescribed. She wore the collar for two months. She was absent from work for about one month. There was intermittent time off work after this. She does not think she fully recovered from the effects of this accident. In October, 1981, she was the driver of a car moving slowly. Her vehicle was hit by another car coming from behind. Neck stiffness followed. She said the effects of this accident were much less than those experienced on the previous occasion and her symptoms lasted only for two weeks or so. She attended a doctor two days after the accident and later had some physiotherapy. She visited the doctor on about five occasions. No cervical collar was supplied. She was a shop assistant at the time of that accident and was not absent from work. She then went on to describe a period during 1983 and 1984 URJ CUMMINS v BROCKWELL BROCKWELL v BROWN (Priestley JA) 3 when she had an exacerbation of symptoms related to neck pain and headache. She attributed this to lifting heavy weights or boxes in the course of her work as a shop assistant. She was absent from work for about eighteen months and received workers' compensation payments as well as sickness benefits during that time. No x-rays were submitted and an xray of the cervical spine was requested. The report on this reads: CERVICAL SPINE: The lateral views in flexion and extension do not show any evidence of instability. Normal development is present. The oblique views are normal. The AP view shows a little tilting to the left suggesting the patient may have a thoracic scoliosis. The occipito cervical area appears normal. I have seen these xrays and would regard the findings as normal. In my opinion, the accident of 27.7.1980 is likely to be responsible for her continuing symptoms. These symptoms are mild, intermittent and not disabling. I would regard her as having fully recovered from the injury of 9.10.81 which would appear to have been a minor injury." Two doctors gave oral evidence in the plaintiff's case, Drs Taylor and Pillemer. One, Dr Burke, gave oral evidence in the defendant's case. Written reports from these doctors, from Dr Goldie and from a number of other doctors were in evidence. In his reasons, the Master surveyed the whole of the medical evidence. In doing this he referred to the substance of the last five paragraphs of Dr Goldie's report. He evidently accepted Dr Goldie's views because his final conclusions closely resemble them, except that he thought the continuing symptoms, described in the final paragraph of Dr Goldie's report as likely to have been caused by the accident of 27 July 1980, were somewhat more serious than Dr Goldie did. As earlier mentioned, although the Master thought the accident of 9 October 1981 was caused by the second defendant's negligence, he did not think the plaintiff suffered any significant damage, and entered judgment for the second defendant. The Master explained the conclusions he reached as to the consequences of the first accident in the following way: "The plaintiff was a witness who certainly did not underpresent her case. It was my view that she exaggerated her symptoms. She had failed to disclose to her medical practitioners a rather serious car accident in which she was involved in March, 1981 from which she claimed no injuries. Nevertheless it was one she had not disclosed to her medical practitioners. Those who gave evidence before me at least claimed that that was a question that they would have asked. However, I am satisfied that the plaintiff was in pain and from time to time still gets pain. There is some corroboration of this from the plaintiff's father who gave evidence and indicated that up until the time the plaintiff married she lived with him and I am satisfied on his evidence that her headaches and the intermittent neck complaint is something which was certainly real to her. However, none of the medical evidence suggests that her suffering was likely to be permanent and I assess the plaintiff's general damages, pain and suffering and loss of amenities of life in the sum of $45,000.00. I assess the sum of $25,000.00 for past general damages." It seems clear that the reason why the Master thought the symptoms referred to by Dr Goldie in the last paragraph of his report were somewhat more serious than Dr Goldie did, was that the evidence of these matters both from the plaintiff 4 UNREPORTED JUDGMENTS herself and her father (the latter not having been seen by Dr Goldie) gave him a more detailed factual foundation for his conclusion than had been available to Dr Goldie. The Master arrived at the judgment sum by totalling the following components: General damages $ 45,000 Interest on past general damages $ 15,000 Past economic loss $ 37,670 Interest on past economic loss $ 14,400 Future economic loss $ 14,345 Out of pockets $ 1,020 Total $ 127,435 The argument in the first appeal. In the first defendant's appeal, her counsel began with a general submission. He said that on any view of the facts it appeared that nothing that happened at the time of the first accident or for a long time afterwards lent any support to the view that that accident could have been responsible for injuries of the severity that the Master ascribed to it. It was pointed out that although the plaintiff sought treatment the day after the first accident, there was no ambulance at the scene of the accident, no immediate onset of neck pain, no report of the accident to the police; what happened after she went to her general practitioner the day after the accident was that she was off work for two weeks, wore a cervical collar for about four months, had some physiotherapy, went back to work, then saw the general practitioner again; in August he reported the symptoms seen to be minor and considered she was ready to return to work; she saw him again on 13 September when he found there were few symptoms and she was able to cope well; she then did not again see a general practitioner or the physiotherapist until after the accident of 9 October 1981. It was then said that on this overview of the evidence it was very difficult to see how a conclusion could be drawn attributing the entirety of what the plaintiff was suffering from at the time of trial to the accident of 25 July 1980. This general submission is insufficient in itself, in my opinion, to justify the court in thinking the Master made any mistake. He knew and was addressed on all the things stressed by counsel, he saw the plaintiff, he had the opinion of Dr Goldie and other medical opinion supporting the view which he himself adopted; he also had the evidence of the plaintiff's father. Looked at simply on the basis of the overview submission, the court would not be inclined to think any valid criticism of the Master's reasoning could be made. Counsel for the first defendant then made a number of more particular criticisms of the Master's findings. The first of these was that the plaintiff had been involved in an accident in March 1981, as a passenger, following which she went to hospital, where it was recorded that she had been complaining of a bump on the head, and which she had not mentioned to the various doctors who saw her later concerning the October 1981 accident and to whom she gave histories of the accidents both of July 1980 and October 1981. Counsel conceded however that at most he could only make use of this incident as something going to the plaintiff's credibility; he fairly drew the court's attention to the fact that there was URJ CUMMINS v BROCKWELL BROCKWELL v BROWN (Priestley JA) 5 evidence the plaintiff had been advised not to take proceedings and that on the whole of the evidence he could not argue this accident had been a partial cause of the plaintiff's later symptoms. More importantly it was submitted that the medical records showed that it was not until about September 1983 that symptoms of any consequence began to manifest themselves in regard to the plaintiff. There was evidence before the Master that at about that time the plaintiff suffered injuries at work which seem to have affected her shoulder; the submission was that much of her subsequent complaint related to the shoulder and that there was no evidence to connect any of the problems in the shoulder with what had happened in the accident of July 1980. A submission connected with this was that the Master made no clear finding of the significance he attributed to the shoulder injury in relation to the overall damage for which the plaintiff was claiming. This was said to have been an essential matter for him to make a finding about and failure to do so was itself an error of law. After considering the evidence upon which counsel relied for these submissions, I do not think the complaints are made out. In a series of medical certificates given by the plaintiffs general practitioner, Dr Minogue, certifying her unfit for work, following September 1983, he refers in every one to the plaintiff's neck problem, and in some mentions the shoulder or shoulders. It would seem reasonably certain that on the occasions when the neck alone was mentioned, the problems it was causing to the plaintiff were by themselves sufficient to incapacitate her. The matter of the shoulders was additional to the problem with the neck and it seems to me to have been a fair inference for the Master to draw that the neck problem was sufficient in itself on all occasions to warrant the certificate given by the doctor. The fairness of such an inference is to my mind enhanced by the fact that no issue appears to have been raised before the Master directly concerning the point now sought to be made on behalf of the first defendant. The plaintiff was not asked about the shoulders in evidence. Nor does the Master in his reasons ever refer to them as being something he was taking into account in assessing the severity of the plaintiff's symptoms at relevant times. Two other items tell against this submission of the first defendant. One is that Dr Taylor attributed the shoulder to the first accident. Another is that Dr Burke in one of his reports records the plaintiff as telling him that at the time of the September 1983 incidents at work she had told her employers she did not want to do the sweeping work to which she attributed her subsequent shoulder problems. The reason the plaintiff gave Dr Burke for her reluctance to do the sweeping work on that occasion was that the state of her neck made her feel awkward in doing it. She further told Dr Burke that immediately upon doing the sweeping work the problems in her shoulders began. If this piece of the plaintiff's history recorded by Dr Burke had any evidentiary value, it would support the view that the symptoms in the shoulders were themselves a consequence of the plaintiff's neck problem. Dr Taylor's evidence would go to the same conclusion. However, I do not think that either of these aspects of the evidence should be relied on in a positive way. As I have said, the Master does not seem to me to have taken the state of the plaintiff's shoulders into account in determining what damages should be awarded against the first defendant. For this reason alone, in my opinion, this particular ground of complaint by the first defendant has no force. 6 UNREPORTED JUDGMENTS Attention was also drawn to the dates given in the documentary evidence concerning the work injury in or about September 1983 and the court was asked to draw inferences that some of the recorded dates showed the evidence given by the plaintiff was wrong. The evidence however, does not in my opinion go so far as that. There is no particularly conclusive inference to be drawn from the occasionally inconsistent and confusing dates in the documents relating to this period. Various explanations are available by which the plaintiffs evidence can be reconciled with some of the dates and it is not at all clear that such of the dates as appeared to be inconsistent with parts of the plaintiff's evidence were themselves reliable, or on the other hand, that the plaintiff should be treated as having committed herself completely to the dates that she gave in evidence, from memory years after the events. One reason for counsel's particularity about the dates at this time is that the Master in assessing past economic loss treated the plaintiff as being unable to work, because of the July 1980 accident, from 1 August 1983 until September 1985. As well as seeking to use the material concerning the starting point of this period in connection with the plaintiff's credibility, counsel sought to make the commencing date later, submitting that on the documentary materials it had to be as late as October in 1983, at the least. I have already indicated that I do not think there was any ground for doubting the plaintiff's credibility because of the matters relied on, and have mentioned some inconsistency in the materials. One document in evidence was from National Employer's Mutual General Insurance Association Limited, the workers compensation insurer of the company employing the plaintiff at the relevant time. The letter, addressed to the plaintiff's solicitors, was dated 28 April 1986 and said, inter alia, that compensation had been paid to the plaintiff from 1 August 1983 to 15 February 1985. When the whole of the evidence relating to the opening date of this period is looked at, I do not think there is any basis for criticising the date taken by the Master. It was reasonable, in my opinion, for him to rely upon a date given by an insurer whose records were quite likely to be accurate. An argument was also directed against the closing date (September 1985) adopted by the Master for this period. For this argument the insurer's letter of 28 April 1986 was relied on as indicating that from February 1985 the plaintiff could not have been regarded as unfit to work. She had been certified as fit for work in March 1985. The Master however had accepted that she failed to find work in New South Wales at that time and went to Queensland looking for suitable employment. It may have been open to the Master to take the view that the plaintiffs having been out of work from February/March to September 1985 was attributable to a combination of her own choices and the state of the job market, rather than to the accident of July 1980. However, it seems to me to have been open to him to take the view, which apparently he did, that the reason the plaintiff was out of work (speaking broadly) was the accident of July 1980 and that there was a sufficient connection between that primary cause and her inability to get work either in New South Wales or Queensland in the period in question to justify his conclusion. Having regard to the materials that were before him, I would not form a different opinion. There were then some criticisms of the method adopted by the Master for calculating both economic loss from September 1985 to the date of trial, and from the date of trial. I think I need say no more about these arguments than that the Master might plainly have chosen other methods than those he did for the URJ CUMMINS v BROCKWELL BROCKWELL v BROWN (Priestley JA) 7 particular calculations, but that the methods he did adopt seem to me to have been not unusual and quite reasonable and fair. The first defendant's case on appeal was thoroughly prepared and well presented. My response to the points argued has been of a rather general nature. This is because, in this case, it seems to me that each of the matters raised by counsel was in an area where there was evidence before the Master upon which it was reasonable for him to come to the conclusion he reached. All the conclusions contested by the first defendant were influenced to a greater or less extent by the Master's impressions of the plaintiff and the other witnesses. None of the matters relied on by counsel seemed to me to involve any material error by the Master. A matter particularly emphasised by counsel was the amount of general damages awarded for what he described as being no more than a mild whiplash injury. On the view of the facts taken by the Master however that particular injury had consequences justifying the figure he assessed. Once I reach these conclusions the case does not seem to me to call, in any legal sense, for any particular notice, and I do not think it serves any useful purpose to give any more detailed reasons for my views than I have done. In my opinion the first defendant's appeal should not be upheld. The argument in the second appeal. In the second appeal the argument for the plaintiff was that it could not be disputed that the plaintiff had suffered some damage as a result of what the Master found was the second defendant's negligence and that therefore the tort of negligence was complete and some amount of damages should have been awarded to her no matter how small, the consequence being that judgment should have been entered for and not against her. The argument has some logical force, but even if it were successful it would not, to my mind, have any more than nominal significance. Judgment would be entered for the plaintiff instead of the second defendant and there would be no alteration to the order for costs. The money sum of the judgment would be a nominal one. There were, I think, facts before the Master entitling him to come to the view which he stated: "Any injury which occurred was an injury de minimis and as such did not constitute damage to complete the tort of negligence". The circumstances of the present case do not seem to me to justify this court in taking a different view. My opinion therefore is that the plaintiff's appeal in the second case fails. The second defendant's application for leave to appeal. Once the plaintiff had filed notice of appeal against the judgment against her in the second case, the second defendant filed a notice of cross appeal expressed to be "from part of the decision of Master Greenwood namely; that the Defendant was guilty of negligence and that there be no order for costs in favour of the Defendant although no damage was proved against her". As appeals can only be brought against judgments and orders and as judgment had been entered in favour of the second defendant, it was not possible for her to appeal directly against the Master's finding of negligence against her. It was possible for her to appeal against the Master's costs order, denying her any costs, but this appeal required the leave of this court: Supreme Court Act, s101(2)(c). The technicalities of the second defendant's "appeal" did not become clear until the matter was raised in the course of oral argument. 8 UNREPORTED JUDGMENTS It followed that the first question for the court was whether leave should be granted to appeal against the Master's costs order. The court heard argument on this question, in the course of which counsel put the submission that on the facts before him the Master should not have found the second defendant negligent. In my opinion there is no practical importance in this court's embarking upon questions either of the sufficiency of the evidence of the second defendant's negligence, or of the Master's order for costs. In practical terms, given the Master's factual findings, the order he made was sensible. In my opinion leave to appeal should be refused. Orders in first appeal. The first defendant failed in her appeal. I think the usual orders should be made: appeal dismissed with costs. Orders in second appeal. Approximately the same amount of time was devoted to the matters argued by the plaintiff's counsel in her appeal and the second defendant's counsel in her application for leave to appeal. In the circumstances I think no order for costs should be made in either matter. The orders I propose are therefore: 1. in the appeal, appeal dismissed; no order as to costs; 2. in the cross appeal, cross appeal (treated as application for leave to appeal) dismissed; no order as to costs. Meagher JA I agree with Priestley JA. Handley JA In these matters I have had the benefit of reading in draft form the reasons for judgment of Priestley JA. I agree that the appeal and application for leave to appeal arising out of the accident of 9 October 1981 both fail and I agree with the orders Priestley JA has proposed in those matters. I have had greater difficulty in reaching a conclusion in the appeal arising out of the accident which occurred on 25 July 1980. I am inclined to give much greater weight to an overview based on the chronology of events. At the time of the accident the plaintiff was a young woman of seventeen. She was not taken to hospital and made no complaint of pain until the following day when she saw her general practitioner. He diagnosed a soft tissue whiplash injury to the neck. She was away from work for two weeks until 11 August when her general practitioner certified her fit for work. On 13 September she saw him again and he reported "... she said that her neck was becoming gradually better and was attending to her work duties and managing well. On examination no abnormality was detected". She did not see her general practitioner again until after her third motor vehicle accident. On 22 March 1981 she was involved in a second accident when the car in which she was a passenger left the road, struck a guide post, and ended up in "the bush". The vehicle was a write off and she was taken by ambulance to Gosford District Hospital for observation. The hospital records indicate that she complained of tenderness and a bump to her head and a tender left shoulder. She was admitted but after a few hours was allowed to go home. She lost no time from work and made no claim for compensation. She did not see her general practitioner again for any condition arguably related to her first accident until 12 October 1981, three days after her third accident. The Master found that this was a minor accident and he declined to award any damages for it. The plaintiff continued to experience minimal symptoms without appreciable time off from work until 1 August 1983. At the time she was employed as a shop assistant in a supermarket operated by Jewels Stores. Following incidents at work which on her evidence arose from prolonged heavy lifting and sweeping she experienced considerable pain in her neck and right shoulder and was off work URJ CUMMINS v BROCKWELL BROCKWELL v BROWN (Handley JA) 9 on workers compensation from 1 August 1983 until 15 February 1985. The Master found that the plaintiff was still not fit for work until September 1985 but thereafter remained partially incapacitated. He assessed her loss due to partial incapacity at an average rate of $50 per week for the ten years ending in August 1995. In the result the plaintiff was awarded damages on the basis of total incapacity from 1 August 1983 and partial incapacity from 1 September 1985 which would continue until more than fifteen years after the original injury. The Master found that the plaintiff had exaggerated her symptoms and failed to disclose to the doctors who examined her, including her own, "the rather serious car accident" in which she was involved on 22 March 1981. There was no "objective" evidence of any continuing injury discernible from xrays CT scans or otherwise. Nevertheless the Master who heard and saw the plaintiff said he was Satisfied that she had experienced pain in the past and from time to time still did so. The plaintiffs father also gave evidence which the Master considered corroborated the plaintiff. He awarded damages totalling $127,435 made up as follows:- General damages $45,000 Interest on past general damages 15,000 Past economic loss 37,670 Interest on past economic loss 14,400 Future economic loss 14,345 Out of pocket expenses as agreed 1,020 Total $127,435 He made his assessment prior to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. To this extent his award can now be seen to be over generous. However at the trial the appellant did not question the prevailing view that interest at normal rates could properly be awarded on past general damages and did not submit before this Court that we could interfere merely because the appeal was by way of rehearing. Compare Quilter v Mapleson (1882) 9 QBD 672. I confess to having considerable misgivings about the other aspects of the Master's award. I am troubled by his finding that the plaintiff was totally incapacitated for work from | August 1983 to 31 August 1985 and by his awards of general damages and economic loss for the ten year period expiring in August 1995. I am troubled by such a large overall award when the plaintiff was back at work a fortnight after the accident and had minimal time off work and no significant medical treatment for her neck condition until three years later. On the basis of the written record alone it seems to me that such an award is very difficult to accept if not frankly ridiculous especially in view of the Master's finding that the plaintiff had exaggerated her symptoms. Dr Goldie who qualified on her behalf said in his report of 18 June 1986 that in his opinion the first accident "is likely to be responsible for her continuing symptoms. These symptoms are mild, intermittent and not disabling". Despite this substantial damages have been awarded for a period of nine years and two months after that date. 10 UNREPORTED JUDGMENTS However I must respect the superior position of the trial court and I also acknowledge the force of the reasoning of Priestley JA. It is significant that the Master appears to have rejected any claim based on the plaintiff's disabilities in her right shoulder. The appellant did not challenge the Master's finding that the second accident did not aggravate her original injury and the challenge to the Master's findings in relation to the third accident was without substance. The appellant's real difficulties in my view arise because of the paucity of evidence relating to the plaintiff's injuries at work prior to August 1983 for which she received workers compensation until 15 February 1985. There was evidence in the form of a letter from the workers compensation insurer stating the period for which the plaintiff was on compensation and the amounts paid. Dr Burke who examined her on behalf of the workers compensation insurer and reported on 30 July 1984 gave evidence. The plaintiff was cross examined about the incidents at work but they occurred almost six years before the trial and her evidence on this matter was vague and confusing. On the basis of the written record alone I would not have been surprised by an award of a few thousand dollars for a closed period expiring long before 1 August 1983. However, as I said, the Master saw and heard the plaintiff and he evidently accepted the view that the incidents at work had not involved fresh injuries but had merely exacerbated her symptoms flowing from the original injury. This was supported by the evidence of Dr Goldie. The plaintiff was not cross examined to suggest that she had given a different account of these incidents at work in any workers compensation claim form signed by her at the time or in any history given during 1983 or 1984 to any other doctor. One might infer from the tender of Dr Burke's report to the workers compensation insurer that the appellant's legal advisers had access to the insurer's file and that it contained no other material which would have assisted their case. That inference supports the Master's assessment at least for the period until August 1985. The difficulties in this case have been compounded by the lapse of nearly five years before proceedings were commenced in relation to the first accident. This has undoubtedly created difficulties for the defendant. In particular the defendant was deprived of the opportunity of having the plaintiff medically examined before the incidents at work in 1983 and had no opportunity to have her medically examined soon after those incidents. However these are essentially arguments for the trial court. In the end I have been satisfied that Priestley JA is correct and that we cannot disturb the Master's assessment, based as it was on the extent to which he had accepted the evidence of the plaintiff, her father and Dr Goldie. The first appeal should be dismissed with costs. Counsel for Appellants (Cummins): R F SUTHERLAND Solicitors for Appellants (Cummins): ABBOTT TOUT RUSSELL KENNEDY Counsel for Appellants (Brockwell): R E QUICKENDEN Solicitors for Appellants (Brockwell): MCCARTHY WRITER and RYAN (WYONG) Counsel for Respondents (Brockwell): R E QUICKENDEN Solicitors for Respondents (Brockwell): MCCARTHY WRITER and RYAN (WYONG) Counsel for Respondents (Brown): J VAN AALST/ P GEISSLER Solicitors for Respondents (Brown): PIGGOTT STINSON STUART THOM 1. First appeal dismissed with costs. 2. Second appeal dismissed, no order as to costs. 3. Leave to appeal refused, no order as to costs.