JAMIESON v PARKS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE JJA 1 September 1995, 1 September 1995 [1995] NSWCA 215 Appeal — application to adduce further evidence — application refused — Radnedge v GIO (1987) 9 NSWLR 235 at 251-1 appld — no question of principle. Cole JA The appellant, Carol Jamieson, on 4 February 1984 was the driver of a motor vehicle stationary at traffic lights. When the lights changed the second respondent, who was driving a vehicle which was stationary behind the appellant's vehicle, took her foot off the brake with the consequence that her vehicle struck the rear of the appellant's vehicle. It was not until 31 October 1989, that is five years and nine months after the accident, that the appellant sued the respondents in negligence. The trial took place in April 1993. In a judgment delivered 28 April 1993 O'Reilly DCJ found in favour of the appellant and awarded damages in the sum of $31,678. The appellant presented to the trial judge as a most unfortunate person. She alleged a soft tissue injury resulting from the accident. She had gross emotional difficulties. She had suffered from perceived sexual harassment in her employment post accident. She had suffered tenosynovitis post accident. She asserted severe neck and back problems in addition to significant psychiatric disabilities. Before the trial judge there was debate concerning the true extent of the physical and psychiatric condition of the appellant and, in particular, the extent to which any such injuries so found were caused by the comparatively minor motor vehicle accident. In this debate, apart from the evidence of the appellant, there was tendered by the parties medical reports from some 20 doctors. The material findings of the trial judge, in addition to his finding that immediately after the accident the appellant took two days off work, are encapsulated in the following passages: "Mr Rewell has presented his case with courage and tenacity but he had a terribly difficult task confronting him. The plaintiff had worked for years post-accident. She had a great array of emotional difficulties. The evidence of actual treatment relating to the motor car injuries was very brief. There is the problem with the perception of sexual harassment in the work place. There is the problem with increasing workload and the development of tenosynovitis over a period of some years, none of which has any relationship to the motor car accident as it seems to me. It has been proved that the plaintiff apparently settled her Worker's Compensation claim. She still has outstanding the matter in the Court of Appeal. She has seen literally scores of medical practitioners over the years. She has apparently an array of legal representation and I am sure that she believes that her neck and back problems still continue and they are all caused by the GIO's driver. but I am afraid that I have not accepted that proposition."! And later: "I make it plain in case this judgment needs to be 1. Appeal Book, at 2300-231F. 2 UNREPORTED JUDGMENTS reviewed elsewhere that what I have done is disallow the psychiatric claim in its entirety and I have simply accepted all the other organic items on exhibit H, the schedule. assess the plaintiffs damages on the basis that she suffered soft tissue injury which affected her for some period of years, perhaps of the order of three years or thereabouts post-accident, but beyond that area the rest of it is related to the other problems in her life. I note that she is now in receipt of a pension apparently on the basis of total disability which is most unfortunate as it seems to me that a young woman should be put in this physiological situation. However doing the best I can I have assessed the plaintiff's damages on that basis at $25,000. The whole of that is referable to the past, so that interest of 2 per cent is payable, the accident having occurred before July 1984. The interest component is $4,625, the out of pocket component is $2,053. There will be a judgment for the plaintiff in the sum of $31,678."2 As is apparent from the above the trial judge found, weighing the evidence of the plaintiff and the evidence of the medical practitioners, that the appellant had suffered, as a result of the motor vehicle accident, a soft tissue injury which had resolved within three years of the accident, and had suffered economic loss, apart from two days off work, limited to out of pocket expenses. The appellant failed on causation in relation to the psychiatric injuries alleged. Application was made on behalf of the appellant to adduce additional medical evidence. That application was not brought until 25 November 1994 and is an obvious endeavour to defeat the trial judge's finding that the only physical injury caused by the motor vehicle accident in 1984 was a soft tissue injury which resolved within three years. In my view that application was misconceived in circumstances where the appellant had every opportunity to prepare her case in the nine years between accident and the hearing. Particularly is that so where she presented to the court a great number of medical reports, including x-rays of her cervical spine in May 1986 and July 1989. In 1986, the x-rays showed "no abnormal soft tissue swelling and the intervertebral foramina appeared normal"3. In 1989, the x-rays showed "perhaps the earliest degenerative changes"'4. The fact that, in July 1993 a cat scan of the same area shows a C5/6 disc protrusion, and that a newly seen medical practitioner in November 1994 may hold "the belief" that her then stabilised condition had been related to the 1984 accident, does not justify the admission of evidence post trial. It seems to be to be improbable in the extreme that had this evidence been called at the trial, the result would have been different in circumstances where the complaints of neck pain were so insignificant and intermittent post accident. The application to adduce further evidence does not satisfy the tests enunciated in Radnedge v Government Insurance Office of New South Waless and as the Court has indicated should be refused. The appellant, by an amended notice of appeal raised eight grounds of appeal. No submissions were addressed in relation to the first ground of appeal which was that the general damages awarded were inadequate. If the trial judge's finding upon causation stands, that ground clearly had no prospect of success. 2. Appeal Book, at 231R-232I. 3. Appeal Book, at 72W 4. Appeal Book, at 77R. 5. (1987) 9 NSWLR 235 at 251-252 URJ JAMIESON v PARKS and ANOR (Cole JA) 3 Grounds 2, 3 and 4 contended that the trial judge erred in failing to include as a distinct head of damage a sum for loss of past earning capacity, loss of future earning capacity and general damages. Reliance was placed upon the decision on Kirby P in Government Insurance Office v Bailey®. The principles there enunciated have no application to this appeal because the trial judge found that there was no past economic loss established, the appellant having taken only two days off work, apart from out of pocket expenses which he awarded. As his Honour found that the injuries suffered in the accident had resolved within three years there is obviously no diminution in future earning capacity. His Honour assessed general damages in the sum of $25,000. Those three grounds accordingly fail. Ground 5 contended that the trial judge erred in not accepting the evidence of a a Dr Bennett who asserted that the appellant's depressive illness was a consequence of the motor vehicle accident. The trial judge's findings in this respect were: "There is a report before me of a Dr Melvin Bennett, psychiatrist, that is a handwritten report, it is dated 21 November 1991. This doctor it seems has been seeing the patient right up to the present time and there is set out in exhibit H a schedule of out of pocket expenses claimed by him for some $4,328 for treatment. We know that the patient is not taking any medication, she does not believe in medication, it must therefore be that all that Dr Bennett is providing is some form of psychotherapy. It seems an expensive way to do it and a completely unsatisfactory situation, as it seems to me, that in the context of a claim of that dimension that I have the benefit of only one handwritten report of November 1991 in which he, without any process of logic, jumps to this conclusion, "from the evidence it is clear that the effect of the motor vehicle accident was to precipitate a major depressive illness". I am just not prepared to accept that conclusion at all. He also ventured into the organic field saying that the muscular problems of the neck and back clearly find substantial origin in the motor vehicle accident and to some minor extent, a previous accident at work. I would agree with that expression of opinion as to a period of a few years post-accident'".7 O'Reilly DCJ was correct in his view that Dr Bennett gave no reason for his statement connecting the psychiatric injury to the motor vehicle accident. Further, there was abundant evidence of a contrary view which related her depression and anxiety to stress in the work situation. That contrary view is to be found in the reports of Dr Dent8, Dr Dyball?, and Dr Shand!°. The trial judge was not obliged to accept Dr Bennett and, indeed, the preponderance of evidence seems to be contrary to his view. Ground 5 fails as does ground 6 which contended that his Honour erred in finding that the appellant's emotional difficulties were unrelated to the motor vehicle accident. Ground 8 also fails for similar reasons, it asserting that the appellant's claim for the cost of psychiatric treatment should have been allowed. (1992) 27 NSWLR 304 at 318 and cases there referred to. Appeal Book, at 229D-229R Appeal Book, at 215S Appeal Book, at 174M-174T. Appeal Book, at 208B-208S So wna 4 UNREPORTED JUDGMENTS Ground 7 contended that the trial judge erred in finding that the appellant's injuries lasted approximately three years. That was a finding open to his Honour on the evidence, particularly in circumstances where his Honour was unable to accept the appellant as a frank witness of good credit!!. 5 In those circumstance in my opinion the appeal should be dismissed with costs. Sheller JA I agree. Powell JA I also agree. 10 Sheller JA: The appeal is dismissed with costs. COUNSEL: Appellant: DE Andrews 15 — Respondent: DJ Russell SOLICITORS: Appellant: Stacks - The Law Firm 20 Respondent: Solicitor for the GIO 11. Appeal Book, at 226L-226N