FARAGE v BUTTIEGIEG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and POWELL JJA 1 May 1998, 28 May 1998 [1998] NSWCA 77 Appeal and New Trial — Interference with Judge's findings of fact — Findings of primary fact — Function of appellate court — Where findings based on credibility of witness. Priestley JA I agree with Powell JA. Sheller JA I agree with Powell JA. Powell JA This is an appeal from a Judgment delivered and Orders made by Sidis DCJ in the District Court on 6 March 1997 in proceedings which had been brought by the Appellant against the Respondent seeking to recover damages in respect of injuries which she claimed to have sustained in a motor vehicle accident which occurred on 29 December 1994. In those proceedings Sidis DCJ found a verdict and entered Judgment in favour of the Appellant in the sum of $750 and ordered the Respondent to pay the Appellant's costs of the proceedings up to and including 20 February 1996, that being the date upon which the Respondent's solicitors had served upon the Appellant's solicitors an offer of compromise in a sum significantly in excess of that for which her Honour directed the entry of judgment in favour of the Appellant. The Appellant's case at trial was that, on 29 December 1994, at which time she was then aged 18 years, she, accompanied by her mother who was a passenger in the front seat was the driver of a Datsun 180B 4 door sedan, owned by her brother, in the car park of the Westpoint shopping centre at Blacktown when a Cortina sedan which was owned, and was then being driven by, the Respondent reversed into the Datsun 180B sedan, the collision being such as to damage the sedan and to cause the Appellant to sustain an injury to her dorso-lumbar spine which produced significant continuing disabilities and incapacities. The Notice of Grounds of Defence which was filed on behalf of the Respondent did not put in issue the allegation that the collision had been caused by negligence on his part. However, the allegations that, as the result of the collision, the Appellant had sustained neck injury and had continuing disabilities and incapacities, and had sustained loss were all put in issue. In the particulars under Ptl2 r4A of the District Court Rules the matter of economic loss was dealt with in the following terms:- Economic Loss 1. At the time of the accident the plaintiff was a student attending Blacktown TAFE studying to become a chef. 2. The plaintiff claims that because of her injuries and restrictions caused thereby the plaintiff may in the future be precluded from her work as a chef and thus claims economic loss in general terms." 2 UNREPORTED JUDGMENTS It is clear from the evidence which was tendered on behalf of the Appellant at trial that the case for the Appellant was:- 1. That the collision between the vehicle which the Appellant was driving and that which was being driven by the Respondent was a significant one; 2. that as the result of the force of the collision, and notwithstanding that both she and her mother were at the relevant time not wearing seat belts, she sustained a significant injury to her dorso-lumbar spine; 3. that not only was the injury to her dorso-lumbar spine significant but the sequelae of that injury were significant; 4. that as the result of her injury and its sequelae the Appellant's ability to lead a normal life had been significantly impaired and would continue to be significantly impaired for a period of not less than six months; 5. that, in consequence, the Appellant was entitled to recover damages for non economic loss (pain and suffering) for economic loss (restriction to her earning capacity both before trial and in the future) as well as special damages for medical and other like expenses incurred by her for treatment for her injuries and disabilities. By contrast, the case which was sought to be made at trial on behalf of the defendant was:- 1. The collision between the two cars was one involving but a minor impact; 2. that any injury which the Appellant sustained as a result of the collision was itself a minor one; 3. that the sequelae of any injuries which the Appellant sustained had resolved themselves within a short period after the collision; 4. that, in consequence, the Appellant is not entitled to recover any damages for non-economic loss or for economic loss and that the Appellant was entitled to recover part only of the amounts claimed to have been incurred by her for medical and other like expenses. Although the Grounds of Appeal taken on behalf of the Appellant included complaints first that Sidis DCJ erred in permitting the Appellant to be cross-examined as to, and permitted the Respondent to lead evidence as to the force of the collision, speed of the Respondent's vehicle at the point of impact and the damage which had been sustained by the two vehicles, it seems tolerably plain that it was part of the Appellant's case at trial that the collision between the two vehicles was one of some force and that the speed of the Respondent's vehicle at the point of impact was, in the circumstances, high. That this was so is readily demonstrated:- 1. During the course of the Appellant's evidence in chief the following question and answer were recorded:- "Q. What happened? A. gave way, I had to stop, I gave way to a car that was in front of me, then I went behind it, suddenly this car just stopped, I stopped, next thing I knew that someone was just reversing into me, just smashed me in the front;" 2. The Appellant's mother, gave evidence limited to the circumstances attending the collision. During the course of her evidence in chief the following questions and answers took place:- "Q. And did you get into the car with your daughter? A. Yes. Q. And what happened? URJ FARAGE v BUTTIEGIEG (Powell JA) 3 A. We'd be standing (sic) to go out, we saw another car bump with our car, the first time, second time and third time, my daughter who used the horn - she come - my daughter used the horn to notice him to stop, and he didn't stop, he bumped with us, second and third time yes we open the door. Q. Yes? A. He bumped the car from the side of the daughter its big bump or big impact..." Given, then, that it was the Appellant who first gave evidence on the subject of the force of the collision, the submission which was made on behalf of the Appellant at the commencement of the appeal that really the case miscarried or mistried because of the dwelling upon the topic that was irrelevant in the proceedings" (T 1) cannot be sustained. The Appellant's case that the collision between the two vehicles was one of some severity was one of the matters which led Sidis DU, after hearing the evidence given by the Appellant in the course of cross-examination and the evidence tendered on behalf of the Respondent to conclude that the evidence given by the Appellant and her mother as to the circumstances attending the collision involved overstatement on their part and that at least insofar as it dealt with the severity of the collision between the two vehicles and the speed of the Respondent's vehicle at the point of impact that evidence should not be accepted that conclusion, as her Honour recorded in the course of her judgment (AB 133) led to her Honour having less confidence in the Appellant's evidence as to the nature and extent of her injury and its sequelae being less than it might otherwise have been. The case which, in this respect, the Appellant sought to make at the trial was one of constant and debilitating pain from the time of the accident until the date of trial. To support the Appellant's own evidence in this respect there was tendered the oral evidence of the Appellant's sister, a registered nurse, as to what was said to be the Appellant's complaints and her sister's observation - which, upon examination, were in the most general terms - as to the Appellant's conduct since the accident, together with the reports of medical and other like practitioners who had been consulted by the Appellant after the accident. None of the authors of those reports was called for cross-examination. Although Mr C D Charteris who appeared for the Appellant on the hearing of the appeal submitted that the evidence contained in those reports - particularly so in the light of the fact that none of the authors was required for cross-examination - and the further fact that only one report from a medical practitioner was tendered on behalf of the Respondent - was overwhelming and provided ample support for the case which in this respect the Appellant sought to make at trial, I am unable to accept that this was so. Further, the evidence of the Appellant herself - that notwithstanding the accident she had been able to commence and continue with a course at TAFE which would qualify her as a chef, during which time she had, prior to trial successfully completed two separate one-month periods of work experience and during which time she did not need to take any time off from her studies or to take any sick leave during the periods of work experience - cast more than a shadow of doubt over the evidence which the Appellant gave at the trial as to her disabilities. The first of the medical practitioners, whom the Appellant consulted was Dr Soliman who saw her first on 30 December 1994. In a report (AB 89-90) provided by him to the Appellant's solicitors on 18 February 1995 Dr Soliman 4 UNREPORTED JUDGMENTS expressed the opinion that the Appellant had sustained soft tissue injury to her dorso-lumbar spine region and to her rib cage on the left side. At the time when he wrote that report, Dr Soliman had available to him the reports of radiologists (AB 106-108) as to the result of x-rays and CT scans of the Appellant's thoracic spine and dorso-lumbar spine. Those reports were to the effect that apart from a slight scoliosis of the mid-thoracic spine, convex to the left, there was no significant abnormality in the thoracic spine and that there was mild disc bulging at L3/4, L4/5 and L5/S1, with minimal osteophyte formation affecting all apophyseal joints, but no evidence of nerve root compression. The Appellant was next examined by Dr Irani, an orthopaedic surgeon, at the request of Dr Soliman, on 19 January 1995. In the report (AB 94-95) which he provided to the Appellant's solicitors on 22 March 1995 Dr Irani recorded (inter alia):- "On examination - Dorsal and lumbo sacral spines Her back posture was normal. She had tenderness over the 12 dorsal and 1° dorso-lumbar spinous processes and along their paravertebral muscle, and she was also tender over the left 11 and 12" ribs. Movements of her spine were full in all directions. Straight leg raise test was negative on both sides. All jerks were present and equal. She had no neurological deficits in the lower limbs." Following that first examination Dr Irani referred the Appellant to the Physiotherapy Department of the Mount Druitt Hospital and Community Health Service where she had twelve treatments, the last seemingly on 3 March 1995 (AB 103). In the report to which I have earlier referred, which report was given after he had seen the Appellant again on 9" February and 6" March 1995, Dr Irani recorded the following opinion:- "Miss Bernadette Farage presented with symptoms suggestive of a dorso-lumbar spine strain, and contusion to the rib cage on the left side which would have resulted from the motor vehicle accident she was involved in. She attended for physiotherapy treatment, but when last seen she still has residual pain in her mid-dorsal spine region. She is to do her own spinal exercises." The next medical practitioner by whom the Appellant was examined was Dr Teychenne a neurologist, who saw the Appellant on several occasions in July 1995 and later in early 1996 (AB 98-102). In the report which he provided to Dr Soliman on 4" July 1995 Dr Teychenne, after carrying out an EMG nerve conduction study within the lower limbs concluded:- "The motor conduction velocities were normal. I did not find evidence of severe lumbo sacral nerve root compression on this test. ACT scan of the dorso-lumbar spine showed mild disk bulging at L3/4, L4/5 and L5/S1 with minimal osteophyte formation affecting all apophyseal joints. CT scan of the thoracic spine was normal although she did complain of pain extending from the dorso-lumbar spine up into the thoracic spine. An x-ray of the thoracic spine was normal. Clinically she has evidence of a bilateral lumbo sacral radiculopathy. I will do a somatosensory response within the lower limbs and EMG muscle sampling looking for evidence of limbo sacral nerve root compression". (As I understand it, the word "radiculopathy" denotes disease of the roots of spinal nerves). URJ FARAGE v BUTTIEGIEG (Powell JA) 5 In the report which he provided to Dr Soliman on 17" July 1995, Dr Teychenne, having recorded the results of the somatosensory tests which he carried out concluded:- "EMG that is muscle sampling within the left EDB muscle and left tibialis anterior muscle was normal but she had a slight decrease in recruitment pattern within the EDB muscle and right tibialis anterior muscle compared to the left side. These findings would be consistent with a mild right L5/S1 radiculopathy but I suspect she has a bilateral predominant L5 radiculopathy associated with the dorso-lumbar disc bulges. She did not appear to have nerve root compression on CT scan of the dorso-lumbar spine and on my testing I do not find evidence of denervation. I would treat her conservatively. She may be helped by small doses of non-steroidal antiarthritics and physiotherapy for the dorso lumbar spine." In a further report provided by him to Dr Soliman on 2 February 1996 Dr Teychenne wrote (inter alia):- "On examination movement of the dorso-lumbar spine was normal. However she had a 65° decrease on SLR on the left and right side inducing pain over the lower dorso-lumbar spine. Reflexes were symmetrical 1+. Both plantar responses were flexor. She does have evidence of a right L5/S1 radiculopathy and probably a bilateral L5 radiculopathy associated with a disc bulge at L3/4, L4/5 and L5/S1. I suspect that she probably has a lower dorso-lumbar disc prolapse but I would treat her conservatively." (I note, here, that during the hearing of the appeal Mr Charteris informed the Court that "mild disc bulging did not equate with disc protrusion (or I would assume, prolapse (T6)). The last of the doctors who examined the Appellant - seemingly for medical-legal purposes - was Dr Drew who, in the report which he provided to the Appellant's solicitors on 10" December 1996 (AB104-105) wrote (inter alia) as follows:- *Physical examination: She could walk on her toes and on her heels and could squat without difficulty. Cervical spine: There was no tenderness and no restriction of movements. Back: Legs were of equal length. There was tenderness over the spine from the mild mid-thoracic region to the lumbo sacral junction. Lateral flexion is slightly restricted to 25° each side but other back movements are not restricted. Straight leg raising was slightly restricted to 70° in each side but stretch tests were negative. Lower Limb reflexes were normal. There was no sign of wasting of the left leg and this was confirmed by measurement. Peripheral pulses were satisfactory. Opinion: Diagnosis: She appears to have suffered muscular ligamentous strains to her thoracic and lumbo sacral spine. I found no signs of radiculopathy and the cause her leg symptoms is unclear. Prognosis: One would expect her back symptoms to subside within a few months but on occasions these may persist for years. Treatment: No other treatment is recommended. Fitness for work: She would have difficulty with work which required frequent flexing of the spine, prolonged standing or lifting of heavy weights. Impairment: Persisting symptoms in her back may be causing 5% impairment of her back. There appears to be no significant impairment of her legs." 6 UNREPORTED JUDGMENTS The report which at trial was tendered on behalf of the respondent was that of Dr Stephenson, an orthopaedic surgeon, who examined the Appellant on 2" August 1995, that is, shortly after the Appellant had been examined by Dr Teychenne in July 1995. In the report (AB 114-115) which he provided to the Respondent's Third Party insurer on 8" September 1995, Dr Stephenson wrote (inter alia) as follows:- "Her present complaints were numbness at the front and sides of the legs and below the knees. She said her neck pain had settled. She said she can move her neck now. She said she had back pain, sometimes in the lumbar region and sometimes the dorsal region, indicating those areas. On examination there was a good range of neck movement and shoulder girdle movement. Examination of the dorso-lumbar spine showed a good range of back movement. There was no increase in sciatic nerve tension. There was no calf muscle wasting. There were no clinical signs of neurological deficiency in the lower limbs, nor in the upper limbs. She was a well muscled person and here was no obvious dorsal deformity on inspection. Opinion - She may have had an episode of strain and contusion to the back and neck in the accident, for which conservative neck and back care advice are appropriate. There are no findings to suggest she has any current disability. I would not expect any long term disability. Conservative neck and back care advice should be followed. She is fit to continue with her activities as a student. I would not expect any impairment of her employment prospects when she decides to join the workforce. I understand she is studying to be a chef." When she came to consider this aspect of the Appellant's case Sidis DCJ, after recording in summary form the medical evidence to which I have just referred said (AB 135-136): 'The major part of the plaintiffs case is that she was an active normal 18 year old at the time of the accident, and that she has been in constant and debilitating pain since the date of the accident, and that it thus may therefore be inferred that the pain is the result of the accident. Unfortunately, I have come to the conclusion that the medical evidence does not support the claim of constant and debilitating pain, and that the plaintiff has again overstated the consequences to her of the accident Dr Drew did find the plaintiff unfit for prolonged standing, but that finding appears to be contrary to his clinical observations of the plaintiff. In addition, I have noted that the plaintiff is still pursuing her technical and further education course in order to qualify as a chef, and that, in pursing those studies, she has taken no sick leave. In addition, she has successfully completed two separate one month periods of work experience. Her evidence was that she did this with discomfort, but she did it without needing to take time off. In the circumstances, I have reached the conclusion that whatever injury the plaintiff did suffer in this accident, was of a minor nature and insufficient to qualify as a significant impairment of her ability to lead a normal life. There is a claim for out of pocket expenses which I am unable to assess in the light of my findings, and I would ask the parties to discuss this on the basis that I would expect the medical expenses for perhaps the first four months after the accident to be attributable to any injury suffered in the accident. I am not satisfied URJ FARAGE v BUTTIEGIEG (Powell JA) 7 that there is evidence to support any claim for future economic loss. The formal orders will be made once the parties have had an opportunity to discuss the position as far as medical expenses are concerned." After the matter had stood in the list for a time, counsel returned and counsel for the Respondent then said:- "Your Honour, we've agreed that the out of pocket expenses for the period are $750. Your Honour, on the question of costs I tender a notice of an offer of compromise, served by the defendant on 20 February 1996 for $7500 plus costs, and I ask that the plaintiff be given no costs from that day forward." (I pause here to observe that by virtue of the provisions of Pt39A r12 of the District Court Rules the Appellant was not entitled to recover any costs in the action unless Sidis DCJ certified that it appeared that there was sufficient reason for bringing or trying the action in the Court, and that, in any event, by virtue of the provisions of Pt39A r25(6) of the District Court Rules the defendant was, in the events which had happened, prima facie and the Respondent was entitled to an order against the Appellant for the Respondent's costs in respect of the action after 20 February 1996 those costs being assessed on a party and party basis. However, having regard to the application made by counsel for the Respondent, and there being no cross appeal filed on behalf of the Respondent, having noted those matters I set them to one side. In the event, as I have earlier recorded Sidis DCJ found a verdict and directed the entry of judgment for the Appellant in the sum of $750 and ordered that the Respondent pay the Appellant's costs of the proceedings up to and including 20 February 1996. As I have earlier recorded, the submission which was made on behalf of the Appellant in respect of this part of the case which she sought to make at trial was that it was not open to Sidis DCJ to conclude, as she did, that whatever injury the plaintiff suffered as a result of the collision was of a minor nature which injury and the sequelae from which had resolved by about the end of April 1995, the evidence to the contrary which had been tendered on behalf of the Appellant being, so it was said, overwhelming. Implicit in that submission appears to have been the following propositions:- 1. That it was not open to her Honour to conclude that the Appellant had overstated her symptoms; 2. That even if it were open to her Honour so to do, so that the Appellant's complaints as to her symptoms needed to be discounted, the objective clinical signs which were found upon examination were such as to dictate the conclusions first that the Appellant did sustain significant injury in the collision and second that the sequelae of that injury was continuing up to the date of trial; 3. That none of the authors of the reports tendered on behalf of the Appellant having been called for cross-examination it was not open to her Honour to disregard the views which they had expressed in their various reports; 4. That in consequence her Honour ought to have found first that the Appellant had suffered a significant impairment of her ability to lead a normal life, in consequence of which her Honour should have made an award of damages for non-economic loss, and, second, that having regard to the nature of the Appellant's injury and its sequelae her Honour ought to have made an award of damages for future economic loss. There are as it seems to be a number of answers to a submission so constructed, they being:- 8 UNREPORTED JUDGMENTS 1. It is clear enough that her Honour's conclusion that the Appellant had overstated the case which she sought to make at trial both in respect to the severity of the collision and the nature of her injury and its sequelae is a finding of fact based upon her Honour's assessment of the credibility of the Appellant as a witness far from this being the kind of case mentioned in the authorities (Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472) in which a court of appeal might interfere with a trial judge's findings of fact, a perusal of the transcript of the trial, in my view, provides ample material to support her Honour's conclusion in this respect; 2. It is clear that, to some extent at least, the opinions offered by the doctors whose reports were tendered on behalf of the Appellant have been based upon the history of complaints and symptoms given by the Appellant to them, the consequence being that, to the extent to which those options are based upon that history the value to be attributed to those opinions is at least diminished if not totally destroyed; 3. While it is true that those opinions, to the extent to which they can be seen to be based on objective clinical signs or the reports of x-rays, CT scans and other like tests are not subjected to the same comment, the various matters to which I have earlier referred when discussing the nature of those reports, in my view, fall far short of establishing beyond any peradventure that the Appellant had sustained anything more than a soft tissue injury, which injury and its sequelae had resolved within a comparatively short time after the collision; 4. Nor did the fact that none of the authors of the reports upon which the Appellant relied at trial was cross-examined require that their evidence be accepted by Sidis DCJ. Although some of the older cases (see, for example, Davis v Hardie (1827) 6 B & C, 231; 108 ER 436 438 per Abbott CJ; Richards v Jager [1909] VLR 140, 147 per Madden CJ; Swinburne v David Syme & Co [1909] VLR 550, 565 per Madden CJ) proceed upon the basis that, as a general tule, where a witness is unimpeached in his general character and his evidence is probable and uncontradicted by evidence on the other side that evidence should be accepted but, more recent authority makes it clear that there is no rule of law that a court or judge must accept evidence it is all the one way (see, for example McPhee v S Bennett Ltd (1935) 52 WN 8) and that, while the absence of cross-examination enables a tribunal of fact to regard the relevant evidence with a greater degree of assurance than might otherwise have been the case, it does not require the acceptance of that evidence (see, for example, Douglas v Tiernan (1931) 32 LR 149, 153 per Hardie J; Taylor v Ellis [1956] VLR 457' Cole v Commonwealth of Australia (1961) 62 SR 700; Bulstrode v Trimble [1970] VR 840; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Allied Pastoral Holdings Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505) although where such evidence is rejected the reasons for it being rejected should be stated, in default of which it might be held that there had been a mistrial (see, for example, Holman v Holman (1964) 81 WN (Pt1) 374; Torrealba v District Court of New South Wales (1996) 40 NSWLR 372). 5. In the light of the various matters to which I have just referred, the conclusion to which her Honour came was, in my view, one which was open to her. URJ FARAGE v BUTTIEGIEG (Powell JA) 9 The one aspect of her Honour's judgment which, for a time, caused me to pause was her selection of the period of four months after the accident as the period beyond which medical expenses ought not to be regarded as attributable to any injury suffered in the accident. However, as I have earlier recorded, both Dr Soliman and Dr Irani in their reports in February and March 1995 expressed the opinion that the Appellant had suffered soft tissue injury to her dorso-lumbar spine region and to the ribcage on the left side for which she was referred for physiotherapy, which treatment was concluded in early March 1995. This being so, it seems to me that it was open to her Honour to conclude that the injury and any sequelae ought to have resolved by the end of April 1995. For these reasons I would propose that the appeal be dismissed with costs. Counsel for the appellant: C D Charteris Solicitors for the appellants: McDonnell Schroder (Blacktown) Counsel for the respondent: M L Williams Solicitors for the respondent: Abbott Tout