WALKER v SNELSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and SHELLER JJA 11 February 1998, 11 February 1998 [1998] NSWCA 252 CONTRIBUTORY NEGLIGENCE - review of trial Judge's findings of fact - Held: test in Devries & Anor v Australian National Railways Commission & Anor (1992-3) 177 CLR 472 applied DAMAGES - measure of personal injuries - prior symptoms - loss of future earning capacity - Held: trial Judge's award of damages upheld Sheller JA At about 9pm on 15 March 1993 a vehicle driven by the appellant, Debra Ann Walker, collided with the rear of a vehicle driven by the respondent, Linda Faye Snelson, in Kogarah Road, Dubbo. The respondent sued the appellant, claiming damages for injuries she said that she suffered as a result of this collision. At the time of the collision the respondent was unmarried and had four children, one born in 1982, one in 1983, one in 1987 and one in 1988. The proceedings were heard by his Honour Judge Moore. Liability was admitted but the appellant pleaded contributory negligence. On 19 October 1995 Judge Moore entered a verdict and judgment for the respondent in the amount of $42,200, consisting of $32,000 for non economic loss and $10,000 for loss of earning capacity. His Honour rejected the defence of contributory negligence. The appellant's grounds of appeal as presented to the Court relate to his Honour's failure to find contributory negligence and the assessment of damages, both in respect of non economic and economic loss. Immediately before the accident the respondent was driving the third of four cars approaching a level crossing which intersected Kogarah Street approximately from south to north. The four cars were moving in an easterly direction. A stationary or near stationary train was about fifty metres along the line to the right of the four cars. The driver of the first car, car one, a Mercedes Benz, drove on to the railway line and then reversed into the car behind it, car two. The respondent, who was driving the third car in the line, gave evidence that as she was approaching the railway line, there seemed to be two vehicles in front of her and a train on her right-hand side. There was a collision in front of her. She could see two cars: "Tt looked like one was sort of coming - I don't know whether it was reversing back or rolling back towards me. At about fifty metres coming onto the cars I braked so I wouldn't hit the cars, collide with the cars. I stopped about a foot or two behind the car in front of me." She said that after she stopped, she had her head resting on the steering wheel because she was "sort of frightened". As her head was down, within a couple of seconds (of stopping) she was hit from behind by another car which was the fourth car in the line driven by the appellant, Miss Walker. The effect of the collision, according to the respondent, was to force her car on to car number two. She said that her head was thrown back. She thought her neck was "snapped in half". She was taken to Dubbo Base Hospital where she remained for some five 2 UNREPORTED JUDGMENTS or six hours. X-rays did not reveal any damage, but she was given a collar which she took home with her and wore for about a week. The driver of the train, Mr Adams, gave evidence about the accident. He said that when his engine was about fifty or sixty metres from the crossing, he saw the Mercedes Benz stop in the middle of the railway track, his engine was either stopped or nearly stopped. The Mercedes then went backwards on to the car behind it, that is on to car two, then, according to Mr Adams, the next car, car three, the respondent's car, came along and hit car two. Then car four, the car driven by the appellant, collided with car three. He said he heard three distinct noises, "bang, bang, bang". Any finding of contributory negligence against the respondent depends upon the acceptance of Mr Adams' account of what happened in preference to that given by the respondent. The only other witness, the appellant, Miss Walker, says she saw the respondent's car had stopped, but she was unable to stop in time, not to hit it. She did not know whether she had pushed the respondent's car on to the car in front of it. The trial Judge preferred the respondent's evidence as to how the accident had happened. He said he regarded her as an impressive and honest witness and said she appeared to be an accurate and reliable observer. He found that the collision had occurred in the way that the respondent said. Counsel for the appellant, both in written submissions and oral submissions, has advanced a number of matters which he says showed that his Honour erred in the conclusion he arrived at as to what happened on the night in question. In occasions of this sort the Court must take account of what was said by three members of the High Court, the majority in the case, in Devries & Anor v Australian National Railways Commission and Anor (1992-3) 177 CLR 472 at 479. The High Court has pointed out that: "\.. a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." The appellant's counsel has made a number of points. He has referred to me fact that Mr Adams was an impartial and independent witness. He has criticised his Honour's reference to the particular concentration demanded of Mr Adams by the activities of the Mercedes Benz and his Honour's statement that there was a possibility that the lighting was not as good some distance back from the crossing where the collision occurred as it was at the crossing. He has criticised the statement that Mr Adams was subject to the distraction of seeing many things happening all at once. He has referred to the respondent's evidence about the car in front appearing to roll back. He has criticised his Honour's acceptance of the respondent as an accurate and reliable observer and made some comments about his Honour's conclusions on credibility based upon the respondent's production of photographs and answering questions about her past history. However, with all respect to these submissions, to which I have paid careful attention, they do not seem to me to come close to answering the criteria which the High Court has stated as having to be satisfied before an appellate court will interfere with a Judge's finding of fact such as that which his Honour made here. URJ WALKER v SNELSON (Sheller JA) 3 In my opinion there is no basis upon which it is open to us to interfere with the conclusion that his Honour reached as to how the accident occurred and, that being so, in my opinion, the appeal against his conclusion to reject the defence of contributory negligence must fail. Turning then to the question of quantum, the appellant concedes that in the accident the respondent sustained a muscular ligamentous injury to her neck and perhaps to a very minor extent her low back. His Honour observed that the impact caught the respondent in unusual circumstances, leaning forward after avoiding a collision with a car in front and then receiving a substantial impact from the rear. His Honour accepted that the collision was of considerable substance which caused a severe whiplash-type injury. The appellant has directed submissions to the conclusion that the collision was one of considerable substance. We were taken to photographs of the respondent's car which do not on their face exhibit substantial damage to it. The respondent, unchallenged, gave evidence that after the collision the car was a write-off. The appellant submitted, however, that this was a fairly meaningless comment, absent knowing in what state the car was before the collision. However, it seems to me that the significant matter in this case was his Honour's acceptance of the respondent's evidence about her injuries and his conclusion that she gave no appearance of exaggerating. The respondent tendered a report of Dr Grimsdell of 27 March 1995. Dr Grimsdell had seen the respondent once on 23 March 1995. He stated his opinion and prognosis as follows: "Tt is clear from the foregoing that on 15 or 16.03.93 Linda Snelson was involved as the sole occupant of a motor vehicle in an accident which resulted in moderately severe ligamentous and muscular strain being sustained to her neck. She required to be conveyed by ambulance to the Dubbo Base Hospital where X-rays were carried out and subsequently she saw on a regular basis Dr David Gibson and also on one occasion Dr Michael Hodgett, both of whom confirmed that she had sustained injuries to the para-vertebral muscles in her neck. When seen by Dr Hodgett in September 1993 he noted at that time that she was experiencing low back pain but these symptoms in her lower back have now resolved. Ms Snelson managed to continue at work initially as a cleaner at Big W store, Dubbo and later as a cook in the employ of Pizza Runners, Dubbo but currently is unemployed and is actively seeking employment. Her symptoms in my opinion are genuine and there is no attempt to elaborate or exaggerate symptoms. The extent to which her headaches are associated with migraine attacks remains in doubt but it would not be surprising if some of her occipital headaches which occur from time to time are associated with ligamentous and muscular strain sustained to her neck. Although there are no objective abnormal physical signs in either arm she continues to experience subjective symptoms down the left arm which may require further investigation at some future date in the form of EMG and Nerve Conduction studies and there is a remote possibility that if these symptoms continue a further series of x-rays of her neck may be necessary possibly together with a CT scan and there is a remote possibility that if the radicular symptoms down her left arm continue discography at some future date may be required. 4 UNREPORTED JUDGMENTS Whilst it should be accepted that she is fit to undertake suitable employment she has not become symptom free and presently she has in percentage terms a 10% loss of effective use of her neck and in relation to the subjective symptoms radiating down her left arm she has a 5% loss of efficient use of the left arm at or above the elbow taking into consideration any loss that may be present below the elbow. It is apparent that her condition may not have completely stabilised and as stated above the question of further investigation of her continuing symptoms arises. A further assessment of any continuing symptoms which may be present would be appropriate in not less than twelve months. Linda Snelson is fit in my opinion to resume employment as a cook but it is likely in my opinion that resumption of work as a cleaner undertaking the activities in which she was engaged at Big W could induce aggravation of her neck condition and a recurrence and increase in the symptoms of which she currently complains. It is clear that prior to the incident occurring on 15 or 16.03.93 Linda Snelson was asymptomatic and there is no history of any previous injury to her neck or back and therefore her present symptoms are entirely attributable to the motor vehicle accident in which she was involved." It appears from other medical evidence that was tendered, notably the notes of the respondent's family doctor, Dr Gibson, that the respondent did have a history of previous neck and back problems, stretching back over a number of years prior to the accident. His Honour was, however, alive to this defect in the conclusion that Dr Grimsdell gave. He took account of it in reaching the conclusion that he did. He had the advantage of seeing the respondent in the witness box in which she described her symptoms and in which she explained why it was that after the accident she apparently saw Dr Gibson on about two or three occasions in relation to the accident and why she discontinued a course of physiotherapy which she had undertaken on Dr Gibson's advice. His Honour said that her main problem had been a muscular ligamentous injury to her - although the judgment says "back", clearly that is a misprint and should read "neck". He referred to the particular pain which at first required pain-killers and physiotherapy and said that she took pain-killers from time to time. She was left with a grinding feeling in her neck which his Honour said persisted to the present day. She had intermittent neck pain radiating upwards towards the back of her head and pain between her shoulder blades. She suffered from restlessness at night due to neck pain. She also had pain and tingling down the left arm. His Honour said that the respondent believed this was unrelated to her neck. It was not mentioned until one of her medical advisers referred to it and the respondent then accepted that it had a relationship to the injury that she had suffered in the accident. His Honour found that the continuing symptoms with her neck clearly interfered with her day to day activities. His Honour dealt with those at some length and referred to the fact that it had aggravated a headache condition which she had suffered prior to the accident. He found that she had familiar symptoms frequently before the courts in this sort of case which would continue indefinitely. He said as to the future there was a wide range of possibilities. She could recover, but at the end there was a remote chance of an eventual operation. He said as to her low back there had been a large resolution of her injury but she was no longer able to do the heavy work of cleaning. His Honour concluded there URJ WALKER v SNELSON (Priestly JA) 5 was a real chance that in the future there would be an interference with her earning capacity. At the time of the trial she was able to earn the same as she had been getting as a cleaner. However, his Honour felt he must make allowance for the fact her attraction to employers was reduced by the fact she was unable to carry out any of the more strenuous activities in the occupations open to her. He allowed for moderate aggravation of her headaches and said they called for a moderate amount of compensation. Her history disclosed that she had gone frequently to doctors with diverse complaints and that must be allowed for in awarding damages. He concluded the injuries inflicted as a result of the appellant's negligence called for a moderately substantial award of damages in so far as there was an increase in interference or enjoyment of life which she would not otherwise have suffered. Accordingly, he assessed the case as one calling for an award of twenty-two per cent of a most extreme case. For economic loss he awarded a cushion of $10,000. The appellant challenges the implied conclusion in his Honour's reasoning that the threshold for an award of damages for non economic loss imposed by s79 of the Motor Accidents Act had been passed. Assuming that it had, the appellant says that the amount of twenty-two per cent was outside the range of appropriate assessment of damages. In my opinion, no ground has been shown to make good this claim. It seems to me that there is no basis upon which this Court can interfere with his Honour's findings. His Honour was put in a position where medical reports were issued, including a report of Dr Grimsdell. These were apparently tendered by consent. His Honour discounted what Dr Grimsdell said. I see no reason why it was not open, allowing for that discount, for his Honour to rely upon that opinion and that opinion clearly, in my view, together with the acceptance of the respondent's evidence, supports the conclusion his Honour came to. At the very least, it does not show that the percentage award was outside a reasonable and safe range. Similarly, with respect to loss of earning capacity, the findings that his Honour made demonstrated that the respondent did indeed suffer loss of earning capacity as a result of this accident. It seems to me, an allowance in the cushion of $10,000 is well within the appropriate range. Accordingly, in my opinion, this appeal should be dismissed with costs. Priestly JA I agree. Meagher JA I also agree. Priestly JA The orders of the Court are the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: G J Bateman Solicitors for the appellant: Sparke Helmore Counsel for the respondent: P A Regattieri Solicitors for the respondent: North and Badgery