Taylor v Manzoor & Anor [2003] NSWCA 293

New South Wales Court of Appeal

CITATION : Taylor v Manzoor & Anor [2003] NSWCA 293 HEARING DATE(S) : 03/10/03 JUDGMENT DATE : 13 October 2003

JUDGMENT OF : Mason P at 1; Ipp JA at 2; DECISION : Appeal dismissed with costs.

CATCHWORDS : DAMAGES - personal injuries - no point of principle. ND LEGISLATION CITED : Motor Accidents Act 1988, s 79A(3) Tammy Shoran Amy Taylor (Appellant) PARTIES : Azra Manzoor (First Respondent) Farah Asmah Cheema (Second Respondent) FILE NUMBER(S) : CA 40700/02 B Gross QC (Appellant) COUNSEL : N/A (First Respondent) J D Hislop QC/A J McInerney (Second Respondent) G H Healey & Co (Appellant) SOLICITORS : N/A (First Respondent) Lee & Lyons (Second Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 5398/00 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40700/02 DC 5398/00

MASON P IPP JA

Monday 13 October 2003 TAMMY SHORAN AMY TAYLOR v AZRA MANZOOR & ANOR Judgment 1 MASON P: I agree with Ipp JA. 2 IPP JA: This is an appeal against an assessment of damages in a personal injuries action. The appellant was injured in a motor accident on 15 July 1997. According to her statement of claim she sustained injuries to her neck, chest and back in that accident. She asserted that, in consequence, she suffered from pain and tenderness in those areas as well as from depression and anxiety. 3 The appellant was aged 26 years at the time of the trial. She claimed that she would only recover partially from her injuries and they would affect her throughout the remainder of her life. 4 At the time of the accident the appellant had been working in the food preparation service at the Wolper Jewish Hospital. She claimed that she had suffered both past and future economic loss as a result of the injuries she sustained. 5 Liability was admitted and the matter came before Gamble ADCJ for trial for assessment of damages only. 6 Gamble ADCJ found that the appellant was entitled to recover her past out of pocket expenses and past economic loss resulting from the accident but no more. She assessed damages at $4,587.32. 7 At the trial s 79A(3) of the Motor Accidents Act 1988 loomed large. This section provides: "79A(3) No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident." 8 Gamble ADCJ found that any injury the appellant had sustained in the accident had not significantly impaired her ability to lead a normal life for a continuous period of 12 months. Therefore the threshold under s 79A(3) had not been met. 9 In coming to this conclusion, her Honour found that any injuries the appellant suffered in the accident did not "continue beyond the initial weeks after the accident". 10 In making these findings, her Honour, in effect, did not accept the opinions expressed by two general medical practitioners called on the appellant's behalf, namely, Drs Alam and Hanson. The learned judge relied, rather, on the evidence of medical practitioners called by the respondent. 11 The appellant appeals on four grounds. These grounds, in substance, assert that her Honour misapprehended certain evidence and failed to address a relevant matter, namely the extent to which the appellant, as a result of the accident, suffered from depression. The appellant seeks a new trial on these grounds and does not ask this Court to reassess damages. 12 Prior to the accident, the appellant suffered from pre-existing physical disabilities. When the appellant was about 17 of years of age she experienced the onset of osteochondritis or Scheuermann's disease. This had caused early degenerative changes in her spine. She had thoraco-lumbar scoliosis and, in consequence, had been accustomed (prior to the accident) to some degree of pain, mainly in the upper part of her back in the interscapular area, but also in the lower part. 13 The first ground of appeal is that: "Her Honour misapprehended the evidence of Dr Wolfenden by holding that Dr Wolfenden in his report of 19 August 1997 expected the [appellant] to 'progress slowly over the next month or so' to a complete resolution of her discomfort when in fact Dr Wolfenden had expressed no such expectation but merely a 'hope' and arguably only in respect of her chest wall, not exacerbation of her scoliosis at that stage". 14 Mr Gross QC, senior counsel for the appellant, submitted that Gamble ADCJ had misunderstood the views of Dr Wolfenden and had wrongly relied on them to discount the opinions expressed by Drs Alam and Hanson. 15 The appellant's complaints concerned the trial judge's construction of Dr Wolfenden's report of 19 August 1997. This report read: "Your locum sent young Tammy Taylor to me for review of chest wall discomfort. She had a low speed motor vehicle injury some four weeks ago when she was the driver of a vehicle. She suffered bruising to her chest wall from being restrained by her seat belt. This resulted in pains across her sternum as well as across the costal margins. This got progressively worse over the next two weeks but now is starting to settle. She is able to sleep okay although has to sleep on her back as opposed to normally on her side. She is able to resume work at this stage without significant discomfort from this injury. Her main problem is some exacerbation of her discomfort in her back from pre-existing scoliosis. On examination there is no bruising although tenderness of the mid sternal area and the cartilages on either side. At the time I saw her she wasn't able to bring her chest x rays in but this has been previously reported as normal. In summary I feel she has mild to moderate chest wall discomfort on the basis of a low speed motor vehicle injury during which she sustained mild bruising to the soft tissues and probably more importantly straining of the costal cartilages due to the acute compression from the seat belt restraint. I note she has had a course of non steroidal anti inflammatory agents that have made no difference. At this stage I would hope her recovery would proceed slowly over the next month or so with complete resolution of all her discomfort. I have advised her to keep as active as possible and undergo some simple stretching and flexibility exercises in her upper body to limit stiffness in the joints. Please let me know if any further problems do occur". 16 Mr Gross submitted that Dr Wolfenden, a cardiothoracic surgeon, had only been asked to review the appellant for "chest wall discomfort" and the opinions he expressed in his report only concerned that issue and not the appellant's other complaints. I do not accept this submission. Dr Zabow, who was the appellant's general practitioner at the time, had referred the appellant to Dr Wolfenden because she was suffering from pain, generally. That pain did not only stem from her chest wall but from her pre-existing scoliosis as well. This was expressly recognised by Dr Wolfenden when he stated: "Her main problem is some exacerbation of her discomfort in her back from pre-existing scoliosis".