STATE RAIL AUTHORITY OF NEW SOUTH WALES v CARNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and HANDLEY JJA 7 March 1994, 7 March 1994 [1994] NSWCA 295 NEGLIGENCE — injury to passenger — whiplash injury on jerking train — proof of negligence — whether sufficient evidence on which liability for negligence could be based held: (1) there was sufficient evidence upon which a finding of liability for negligence could be based; (2) there was no objective evidence demonstrating that the evidence of the plaintiff and her witnesses was incorrect or improbable; (3) to the extent that liability was determined by the trial judge on the basis of credibility findings the Court is not entitled to interfere with those findings. Mahoney JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal by the State Rail Authority from a judgment of his Honour Judge Lloyd Jones QC. The appellant has challenged the judgment on both liability and damages and there is a further challenge on procedural grounds alleging that the trial Judge erred in refusing an application by the defendant for an adjournment to enable it to call a medical expert. The plaintiff who was a passenger on an XPT train travelling between Sydney and Orange alleged that she had been injured during that journey on 18 April 1987. The train suffered from loss of power and allegedly jerked a number of times over a period of thirty to forty minutes while climbing a section of the line west of Bathurst known as the Tumulla Bank. The plaintiff alleged that as a result of the jerking action of the train she suffered a whiplash injury to her neck. The issue of liability was strongly contested at the trial, but the trial Judge accepted the evidence of the plaintiff and two other lay witnesses called on her behalf - the twin sisters Lorraine and Leanne Wright. He did not find it necessary to deal in any definitive way with the expert evidence where there was a conflict between a Mr Nicholson called on behalf of the plaintiff and a Mr Sullivan called on behalf of the Authority. He assessed the plaintiff's damages at $30,000. The first ground of appeal argued in this Court was that there was no evidence on which the trial Judge could find that the jerking of the train had caused the plaintiff's whiplash injury. In my opinion this submission must fail having regard to the Judge's credibility based findings on the evidence of the plaintiff and the Misses Wright. There is no objective evidence of an incontrovertible kind which demonstrates either that the evidence of the plaintiff and her witnesses was incorrect or was glaringly improbable. The plaintiff gave evidence that the train jerked severely quite a few times in a period which, on her evidence, was something over thirty minutes, and according to the statement of the train driver was approximately forty minutes. 2 UNREPORTED JUDGMENTS She said that her neck immediately felt sore. Her neck started aching, and her shoulders, and she started to feel sick. Lorraine Wright said that when the train terminated at Orange the plaintiff mentioned to her for the first time that she was sore and that she was feeling sick from the train ride. On 12 April the plaintiff was taken by her mother to Dubbo Hospital complaining of a sore neck and seeking treatment. The hospital report indicates that the plaintiff was tender over the cervical spine particularly on the right side and a diagnosis was made that she was suffering from a whiplash injury. She was given physiotherapy treatment over the next few days and was treated with hot packs. In the light of the Judge's findings and the evidence of early complaint both to a fellow passenger and to the Dubbo Hospital, it is impossible for this Court to find that the plaintiff did not suffer a whiplash injury as a result of the jerking action of the train. Some general submissions were made from the Bar table as to the improbability or unlikelihood of the jerking action of the train causing a whiplash injury to the plaintiff. To some extent the submissions depended upon whether the plaintiff at the time was seated facing the engine or facing the rear. However, no doctor expressed the opinion that a whiplash injury could not be sustained by a passenger in the position that the plaintiff said she was and in these circumstances this Court is not entitled to interfere with the credibility based findings of the trial Judge. The next submission was that there was no evidence from which the trial Judge could find that the driver of the train knew or ought to have known that his attempts to drive the train up the Tumulla Bank would severely jerk passengers in the position of the plaintiff. This was coupled with a submission that it was not reasonably foreseeable to a person in the position of the driver that a whiplash injury might be caused to a passenger. The trial Judge said: "Whatever those defects may have been it is clear their existence was or ought to have been obvious to the driver. He knew or ought to have known that to continue to try to move the train up the slope would result in the severe jerking of the train and the passengers therein. It happened over and again. Despite this the driver persisted to try to move the train knowing there would be repeated jerking with those attempts, or certainly he ought to have known." There was evidence to support those findings. Mr Sullivan the expert called for the Authority said at 62, referring to the jerking motion: "And once it had happened it would be obvious there was something wrong to the driver? A. It would be obvious all the time, yes. Q. To the driver at the time? A. Well, it would have been obvious to the repair staff (sic), it would have been obvious to everyone. Q. But at the scene where it happened, if that happened especially if it was unusual, then it would have obviously been obvious to the driver that something was wrong with the train? A. If it was jerking, yes. Also your Honour, the catering staff, I think they would have complained fairly strongly." URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CARNEY (Handley JA) 3 In the light of this evidence and the Judge's findings it is dear that the undemanding test of reasonable foresight was satisfied in this case. The appellant also argued that the action of the driver in attempting to take the train up the Tumulla Bank could not have caused any jerking motion. His Honour found to the contrary and again it is clear that there was evidence to support that finding. The Authority's expert witness, Mr Sullivan, when asked about the jerking action said, "Well, like I said, I can only assume, your Honour, it was something that went wrong within the electrical systems within the train." There was in evidence a report from the maintenance department relating to the power car at the front of the train which was numbered 2014. The report dated 26 April 1987 which became Ex G, stated that after the failure of power unit 2014 on this occasion and a second failure one week later, the car was held over for in depth technical testing and this was when "the defective interpoles were finally detected". Mr Nicholson, the expert witness called by the plaintiff, gave evidence that the purpose of the interpoles was to ensure a smooth transfer of torque when the poles were changed and if there were defective interpoles there were likely to be surges, likely to be fluctuations in the torque and underlag and this could cause jerking. In the end the trial Judge did not decide the case on any view of the reliability and credibility of the expert witnesses, and there is no need for this Court to take a different course. However, I have referred to this to demonstrate that there was expert evidence based upon the Authority's own records which was capable of corroborating and supporting the lay evidence of the plaintiff and her two friends. For these reasons I conclude that the appellant's challenges to the Judge's finding on liability fail. The next challenge related to that part of his Honour's assessment of damages which included in his award an allowance of $7,500 for future economic loss. This was challenged in the light of the plaintiff's evidence about her future working intentions and her past work history and it was said that there was no basis for including any allowance for future economic loss in her verdict. The plaintiff was born in February 1970 and was seventeen years of age at the date of the injury. She was twenty one at the time of trial. His Honour did not allow any sum for past economic loss and the plaintiff has not cross appealed against this part of his Honour's decision. The plaintiff gave evidence she was not prepared at the time of the trial to work in Sydney. She was then living with members of her family looking after her two children that had been born since the accident. Earlier she had been selected for employment under the Aboriginal Clerical Training Scheme for employment with the Roads and Traffic Authority, but she only lasted a short time before resigning, claiming she was unable to perform the work required because of the injuries suffered as a result of her accident on the train. Despite the plaintiffs short employment history, the absence of any immediate intention of seeking employment, and her evidence that she did not then wish to go to Sydney to resume working under the Aboriginal Clerical Training Scheme, it seems to me that no appealable error has been demonstrated in this award. The allowance is modest in the extreme compared with a potential future working life of forty years or more to age sixty five. 4 UNREPORTED JUDGMENTS His Honour awarded it by way of a cushion for the future and as he said, it was only between a half to one third of a year's basic wage. Whilst it was hoped the plaintiff's whiplash injury would gradually resolve over time, the modest nature of the allowance makes it impossible for the appellant to establish that it was a wholly erroneous estimate of the plaintiff's future economic loss. In my opinion therefore the appeal relating to the quantum of damages also fails. The final point taken in support of the appeal was based upon the refusal of the trial Judge to grant the defendant an adjournment to enable it to call a Dr Burgess to give oral evidence. The trial commenced on Friday, 26 July 1991, and continued until Tuesday, 30 July. The Authority closed its case late on Monday, 29 July. There was no evidence from the plaintiff in reply and the case was adjourned until the following morning for addresses. Dr Burgess had given an expert report on the plaintiff's medical condition having examined her on behalf of the Authority on 29 January 1990. He was an orthopaedic surgeon who practised at Bathurst. The defendant elected not to serve Dr Burgess' report prior to trial as required by the District Court Rules. Nevertheless, when counsel for the Authority tendered the report late on the afternoon of Monday, 29 July his Honour, in the exercise of his discretion, admitted it in evidence. It would certainly have been open to his Honour at that stage to have rejected the report because it had not been served and because there was no evidence that the failure to do so was due to inadvertence. The plaintiff had been cross examined on Friday 26 July on the basis of the history Dr Burgess was given at the consultation on 29 January 1990. The transcript records that on that day his Honour asked counsel for the Authority whether Dr Burgess was to be called as a witness and he was told that this was not intended. On the morning of Tuesday, 30 July counsel for the Authority sought leave to re open his case to call Dr Burgess. The trial was taking place at Dubbo and Dr Burgess practised at Bathurst. Counsel indicated that he wished to call Dr Burgess to give oral evidence of the history the plaintiff had given him about this accident and, in particular, what she had said about the direction she was facing in the carriage when her neck was jerked and she allegedly suffered the whiplash injury. It is perhaps of significance to note that the opinion of Dr Burgess expressed in his report, based on a history different from that given by the plaintiff at the trial, was that she had suffered "a mild to moderate whiplash injury at the time of her accident." The application to re open was opposed by counsel for the plaintiff. It became apparent that if the application were granted there would have to be an adjournment because Dr Burgess was not available to give evidence that morning. Dr Burgess had informed those instructing counsel for the Authority that he wished to give evidence in Sydney as this would be the most convenient place for him to do so. The Judge pointed out that he was fully occupied in country sittings until the end of 1991 except for two weeks in Sydney, and that those two weeks were also fully occupied. In the circumstances the defendant's application for leave to re open amounted to a request for an adjournment until some time in 1992. The whole situation had come about firstly because the defendant had not served Dr Burgess' report; and, secondly, because a decision had not been taken no later than Friday evening after the conflict between the history taken by Dr URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v CARNEY (Mahoney JA) 5 Burgess and the evidence of the plaintiff had become evident to call Dr Burgess either on the Monday or at the latest on the Tuesday morning. The trial Judge has a discretion to grant or refuse adjournments to enable a witness to be called who is not immediately available and to enable a party to re open his case. An important factor which trial judges are entitled and bound to take into consideration is the need for the courts to maintain realistic procedures for the orderly and efficient disposal of trials. These procedures will be disrupted if belated applications are made for adjournments to call witnesses where there is no suggestion of surprise. In my opinion his Honour's discretion has not been shown to have miscarried. It has not been established that there is any appealable error affecting the exercise of that discretion which would entitle this Court to intervene. I therefore propose that the appeal be dismissed with costs. Mahoney JA I agree with what has been said by Handley JA. I would in relation to the last matter, the refusal of the adjournment, add one observation. In considering whether an adjournment should be granted it is of course relevant to take into account the reasons advanced for the proposed adjournment. Mr Sternberg gave those reasons on the morning of Tuesday, 30 July 1991. As recorded in the transcript he said that he feared the Court might find Dr Burgess had erred in recording the plaintiffs history as showing that she had in effect been seated facing the engine rather than in the opposite way. The second reason was that he wished to show Dr Burgess had taken a history which suggested that the head of the plaintiff was thrown back against the back of the seat. These were the two reasons given. I do not think reasons of that kind warranted the adjournment. It was accepted and it was not in contest that the doctor had recorded correctly the history which had been given to him. I say that in the sense that it did not appear to become a matter of contest at the trial. Credit apart, the significance of the way in which the plaintiff was facing was, or could only have been, to show that if she had been facing one way rather than the other she would not have received a whiplash injury in the sense it was not possible or it was improbable that it would have happened. But there was no medical evidence brought, nor was it suggested Dr Burgess would give such evidence, to show that the injury was possible facing one direction but not in the other, or relevantly was likely facing one direction rather than the other. No medical evidence was given of that kind and it would have remained in the end a matter of speculation. Having regard therefore to the reasons why it was said Dr Burgess was to be called I do not think the refusal of the adjournment can be impugned before this Court. This I think reinforces one of the matters to which reference has already been made by Handley JA. I agree with the orders proposed. Clarke JA I agree with the reasons which have been given. Mahoney JA The order of the Court is the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: GB HALL QC/PR STERNBERG Instructed by: MJ DUFFY AND SON Counsel for the Respondent: JD CUMMINS QC/LD SERISIER 6 UNREPORTED JUDGMENTS Instructed by: BAKERS