McCORMICK v PYOGEAR PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 29 March 1995, 31 March 1995 [1995] NSWCA 304 Priestley and Cole JJA This is a plaintiff's appeal against the amount of a judgment entered for her against the defendant by Downs DCJ. The defendant had admitted liability. The amount of damages assessed by the trial judge was $10,784. The plaintiff, born on 9 February 1951, and who lived in Grafton, was injured on 19 December 1991. Her case was heard in the District Court at Grafton on 3 May 1994. Judgment was delivered in Grafton on 6 May 1994. The injury for which the defendant admitted liability had happened when the plaintiff went into the office of the defendant's service station to pay for petrol. A ladder in use by an employee of the defendant fell upon her right foot. This undoubtedly caused an injury to the plaintiff. The trial judge said that in her evidence she exaggerated the effect of the injury upon her. Some matters concerning the injury are however not in dispute. When the plaintiff called at the defendant's service station she was about to drive from Grafton to Coffs Harbour to see her mother, whom she had heard by telephone had suffered a heart attack. After the ladder had fallen on her she continued on her way to Coffs Harbour, saw her mother, and then went to a medical centre at Coffs Harbour where she was seen by Dr P Ferwerda. He caused her foot to be X-rayed, applied a bandage and made crutches available to her. He noted that in particular she was tender over the fifth metatarsal (the little toe). Shortly after she drove home to Grafton. She was seen by her general practitioner, Dr Harding, on 21 January 1992 and 7 April 1992 complaining about the foot. Dr Harding referred her to Dr Randle, an orthopaedic surgeon at Lismore who reported on 7 August 1992 that he had seen her, that she had said she had a lot of swelling when on her feet or walking and felt pain across the region of the metatarsal heads and metatarsal necks and back over the cuboid area. He said that on examination there was discolouration over the cuboid, tenderness over the cuboid and the metatarsal necks from the second to the fourth, pain on rotating the second, third and fourth MTP joints. He thought she was suffering from soft tissue crush injury which he expected to resolve with time but which could be speeded up with some ultrasound and anti inflammatory medications which he had given her. The most recent medical reports before the trial were one from Dr Langley obtained on behalf of the plaintiff and one from Dr T Anderson obtained on behalf of the defendant. Dr Anderson's report was dated 17 January 1994, that being the day on which he examined the plaintiff. He noted that her complaints at that date were that her right foot was aching, she had numbness across the basis of her toes, pain along the outer edge of the foot and an increase in weight. She said she tended to walk on the inside border of her right foot. Dr Anderson was sceptical about this. He noted that initially there was restriction of movement and power in dorsiflexion, plantar flexion, eversion and inversion of the right foot. He also noted however 2 UNREPORTED JUDGMENTS that with suitable coaxing, and repeating the examination, the movements and power seemed reasonably normal. His diagnosis was that there were really no significant findings on his examination: part of the foot was slightly tender and there also appeared to be localised patchy reduction in sensation over the lateral edge. He regarded this as very minor. He thought her future treatment should concentrate on some simple, gentle foot exercises of all the movements of the foot and ankle against resistance, the best resistance being her own body weight. He said her prognosis was reasonable "although it is likely that the minor degenerative changes seen radiologically shortly after the event would be slowly progressive. Therefore in the long term, further deterioration can reasonably be expected". In what appears to be a reasonably objective summary Dr Anderson said: "39. In December 1991, a ladder fell on Mrs McCormick's right foot. 40. This caused bruising. 41. The condition was treated conservatively and she has made a reasonable recovery. 42. She still has symptoms but little in the way of physical findings. 43. Further clinical management is recommended. 44. Her prognosis is reasonable although it is possible that an underlying, minor degenerative change will gradually develop further. 45. She remains fit to continue with her current occupation and activities. 46. Mrs McCormick presented with quite a reasonable motivation. It is likely that if appropriately advised, she would willingly play her reasonable part to minimise the effects of this condition." Dr Langley examined her on 25 January 1994 and reported by letter dated 31 January 1994. His opinion was: "As I have stated before, this lady has chronic problems with the foot due to the tendonitis and bruising she received in an injury with a ladder. She has some ongoing symptoms. It is now two years since the accident and it looks as though she has some permanent injury in the foot of a soft tissue nature. As I have stated before, I would rate this as a 5% impairment to the right leg. I feel no operative treatment will be indicated for her and the mainstay of treatment should be in the form of physiotherapy which she may require at least twice per year." On the day that the plaintiff was in Sydney for examination by Dr Anderson video film was taken of her as she left the doctor's building in Macquarie Street by a private investigator employed by the defendant's insurer. Further filming took place in Grafton on 10 and 14 February 1994 and 30 and 31 March 1994. The film of 14 February 1994 showed the plaintiff taking an early morning walk through the neighbourhood around her home. The investigator taking the film measured the distance covered, apparently by using the speedometer on his car, as 3.9 kilometres. Other films showed the plaintiff doing some shopping in Grafton. It was agreed in the course of the appeal by counsel for the plaintiff that the film of 14 February showed the plaintiff walking at a faster rate than she did in Sydney and while shopping. The trial judge, after summarising the plaintiff's account of her symptoms went on to say: "Although as a result of her injuries and disabilities she had not lost any time from her work, as a result of her injuries and disabilities she has ceased daily power walking, A-grade squash which she played three to four times per week and competition tennis which she played approximately once per week. She was continuing to attend for physiotherapy approximately ever,v six weeks. For the URJ McCORMICK v PYOGEAR PTY LTD (Priestley and Cole JJA) 3 past three years that is even before the accident, she told me that she had been wishing to resume full time employment as a shop assistant and to this end, she had registered with and attended the Commonwealth Employment Service regularly but had been unsuccessful." The judge then went on to say that he was satisfied that the plaintiff was exaggerating her disability, and gave a number of reasons for this opinion. He also noted that the plaintiff was suffering from other disabilities having nothing to do with the accident. The fact was that following the accident, with the exception of the two days immediately after it, she had not lost any time from work. He therefore concluded that he should not make any allowance for loss of earning capacity. The damages he awarded consisted of general damages in the sum of $10,000 together with an agreed figure for out of pocket expenses and interest on the part of the general damages which he attributed to the period from accident to judgment. In argument in the appeal counsel for the plaintiff submitted the judge was mistaken in his assessment of the plaintiffs credibility. This mistake it was submitted led to error in assessment both of the economic loss and the general damages. Counsel sought to make good his submission about mistake by examining each of the reasons given by the judge for his satisfaction that the plaintiff was exaggerating her disability. Some of these criticisms do not in my view have any substantial basis at all. Some of them have a little weight and some show what might be regarded as slight misunderstandings of the evidence. Overall, simply reading the transcript of what happened at the trial, it would appear that the trial judge was in some instances over critical of the plaintiff and read more into some of the things that she said than we would have been inclined to do. However, even the most perfect transcript can not capture everything that happens at a trial. Appeal judges reading the transcript have significantly less data on which to form an impression of a plaintiff than a trial judge does. In particular, in the present case, the judge saw the plaintiff in the witness box and saw the video film of her. Taking the most benevolent view possible of the criticisms by the plaintiff's counsel of the trial judge's reasons for thinking the plaintiff was exaggerating, they can not amount to a demonstration that the trial judge so misused the advantage of being present at the trial that this court could say he was wrong in the view that he formed. This court, in our opinion, must approach the appeal on the footing that it accepts the trial judge's views about credibility. On this footing, there is no basis for thinking the judge made any mistake in deciding not to award any amount to the plaintiff for economic loss. The position seems to us to be different however in regard to general damages. The plaintiff's evidence was that before the accident she was a person very concerned with physical fitness. She used to walk ten kilometres every morning "for fitness and peace of mind and get away from the kids". She was an A-grade squash player, playing three to four times a week. She played competition tennis weekly, and also played socially. She enjoyed these activities. After the accident she did not play squash or tennis or go for her morning walk. By the time of the trial she had gained nearly two stone in weight. For exercise she had taken up swimming, from which she did not get as much enjoyment as she had from her previous activities. None of this evidence was challenged in a cross-examination that questioned the plaintiffs credit in a number of other respects. The trial judge seems to have accepted the evidence as factual. Although he made no specific finding in regard to it, when summarising this aspect of the evidence in his 4 UNREPORTED JUDGMENTS reasons he speaks as if he accepted it, as would be expected in any event in light of its not having been challenged in cross-examination. So far as the video films of the plaintiff's walking were concerned, the only one that appears to have been of any significance was that of 14 February 1994. The type of walking the plaintiff had done in her morning walks before the accident was what is called power walking. In cross-examination she said she had tried to get back to walking and that she first tried when she came back from Sydney from seeing Dr Anderson in January 1994. She said she did this for four or five days. Her estimate of the distance that she walked was a kilometre. She said it caused her pain and that after trying it for five days she stopped because of the pain. After the films were shown she was asked further questions about it and it was put to her (in effect) that she had deliberately misled the court about the distance she had walked. The trial judge was entitled to take, and clearly did take, the view that she had not been frank when first giving evidence on this topic; indeed this appears to have been one of the main ingredients in his opinion concerning exaggeration. The plaintiff said that whatever walking she had done was after she had seen both Dr Anderson and Dr Langley, who recommended that she try walking. She said that the walk on 14 February 1994 although brisk was not at the pace and of the kind that she had done when she was power walking before the accident. Accepting to the full the trial judge's scepticism concerning the plaintiff, there is one general area of fact about which she was not challenged: that is the difference in her life before and after the accident so far as her walking, squash, tennis, fitness and weight were concerned. These are matters which were all of great importance to the plaintiff and it seems beyond doubt, on the evidence and factual findings on which this court must operate, that the difference was caused by the accident. The trial judge's award of general damages indicates that he himself thought that the accident had had a real effect on the plaintiff's life notwithstanding his views about her exaggerating the level of pain and disability which it caused her. In our experience of awards for general damages, that experience being of the kind mandated by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, the figure of $10,000 assessed by the judge in this case was unreasonably low. In our opinion an appropriate figure is $25,000 of which we would attribute $15,000 to the period between accident and trial and $10,000 to the period after trial. This conclusion will lead to the limited success of the appeal. Before stating the court's orders, it should be recorded that there was a further ground of appeal asserting that some documents tendered in evidence by the plaintiff out of time were wrongly rejected by the trial judge. We do not think there is anything in this point. The judge was exercising a discretion. This court in any event is slow to interfere with the exercise of such discretions, unless it is plain an injustice has occurred, but in the present case we see no reason for thinking there was any trace of error in what his Honour did. This ground of appeal fails. The orders we make are that the judgment below should be set aside and for it there should be substituted a figure being the sum of $25,000, with interest, which will be approximately $750, and out of pocket expenses of $534, the total being, subject to checking of the interest figure, $26,284. The defendant should bear the plaintiff's costs of the appeal. URJ McCORMICK v PYOGEAR PTY LTD (Priestley and Cole JJA) 5 In view of the submissions that were made at the trial concerning costs, it seems possible that the parties may wish to address the court on the question of the costs order to be made in respect of the trial and they will have an opportunity to do so upon delivery of these reasons. Counsel for the Appellant: LA LEVY Instructed by: THOMPSON, WHEELAHAN AND HAMPSHIRE Counsel for the Respondent: L KING SC Instructed by: CURWOOD AND PARTNERS