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". When Dr Wolfenden expressed the hope that the appellant's recovery would "proceed slowly over the next month or so with complete resolution of all her discomfort " he was plainly referring to the previous "discomfort" in the appellant's back from the pre-existing scoliosis. This inference is in any event reinforced by Dr Wolfenden's recommended treatment that the appellant undergo "some simple stretching and flexibility exercises in her upper body to limit stiffness in the joints". This treatment related quite clearly to her scoliosis and not to any chest wall discomfort. The stretching and flexibility exercises would alleviate stiffness in the appellant's back. It is difficult to see how those exercises would alleviate pain in any straining of costal cartilages. 17 Mr Gross also submitted that Gamble ADCJ erred in stating, in her judgment, that Dr Wolfenden "expected" the appellant would progress over the next month or so to a complete resolution of her discomfort, when Dr Wolfenden had only expressed the "hope" that this would occur. In my view, however, on a reading of the report as a whole, and having regard to all the circumstances, Dr Wolfenden was using the word "hope" as conveying an expectation. 18 I would not uphold the first ground of appeal. 19 The second ground of appeal is that: "Her Honour misapprehended the evidence of Professor Mitchell and Dr Stuckey by holding that: (a) 'Neither Professor Mitchell nor Dr Stuckey was prepared to make a confident diagnosis of the levels of pain and incapacity Ms Taylor was experiencing as a result of the accident'. (b) 'without further investigation of the reasons for her weight loss they were not able to offer a prognosis'. (c) 'All three medico-legal experts thought it likely that her neck and back conditions were related to her pre-existing scoliosis: Professor Mitchell, Dr Stuckey and Dr Hughes.' (d) 'She was reviewed by Professor Mitchell, Dr Stuckey and Dr Hughes, none of whom agreed with Dr Alam's opinions'. 20 Dr Alam (like Dr Hanson) expressed the view that the pain, disability and depression suffered by the appellant were all caused by the accident. Gamble ADCJ did not accept this evidence; hence the importance of this ground of appeal. 21 Gamble ADCJ said in regard to Dr Hanson: "Dr Hanson's report relies on [the appellant's] history of complaints but the treatment options he offers are more consistent with the development of a number of different complaints, distinct from those suffered in the accident. I do not believe the evidence supports [the appellant's] claim under s 79A(3)". There is no ground of appeal relating to this finding. 22 By reason of her Honour's findings concerning Dr Hanson and what she determined to be the lack of confidence on the part of Professor Mitchell and Dr Stuckey in making a confident diagnosis of the levels of pain and incapacity the appellant was experiencing as a result of the accident, she concluded: "[O]nly the evidence of Dr Alam … may be of assistance in assessing whether the injuries suffered in the accident in July 1997 continued for not less than 12 months and caused significant impairment". 23 Mr Gross submitted that Gamble ADCJ erred in so concluding and argued that her Honour had misunderstood the views of Professor Mitchell and Dr Stuckey. 24 The essential complaint made by Mr Gross on the appellant's behalf in regard to this ground was that "it was quite untrue to say that neither Professor Mitchell nor Dr Stuckey was prepared to make a confident diagnosis of the levels of pain and incapacity the [appellant] was experiencing as a result of the accident and without further investigation of the reasons for her weight loss they were not able to offer a prognosis". He submitted that the views of these two experts, when properly understood, supported the views of Dr Alam. 25 I shall deal first with Dr Stuckey. 26 In a report dated 1 March 1999, Dr Stuckey stated: "Many aspects of the history and the findings on examination are consistent with her having sustained significant contusions to her thorax associated with musculo-ligamentous straining injuries of her spine. There has no doubt been a significant aggravation of the problems previously associated with her thoraco-lumbar scoliosis. However there are some aspects of the history and findings on examination which I do not feel I understand fully in terms of their specific relationship to trauma sustained on 15 July 1997. I was particularly concerned about the history of her weight loss and her somewhat emaciated appearance. I felt it would be in her best interests if she were to be thoroughly assessed by a competent general physician, perhaps a rheumatologist from the point of view of whether or not she has some serious underlying constitutional disorder which could be associated with her pain as well as her weight loss. Without clarification of this issue I feel I could not offer a confident prognosis". 27 Gamble ADCJ said, with regard to Dr Stuckey: "[w]ithout investigation of [the appellant's] history of weight loss and emaciated appearance he was not able to offer a confident prognosis". Later, in her judgment, her Honour said: "When two of the medico-legal experts reviewed her condition in mid 1999 they both expressed greater concern for her general health, indicated by significant weight loss, than for the complaints associated with the accident. Neither Professor Mitchell nor Dr Stuckey was prepared to make a confident diagnosis of the levels of pain and incapacity Ms Taylor was experiencing as a result of the accident and without further investigation of the reasons for her weight loss they were not able to offer a prognosis". 28 Dr Stuckey noted in his report that for some years prior to the accident the appellant had had pain in her back caused by the thoraco-lumbar scoliosis. He noted further that, after the accident the appellant found that her work activities, such as driving and bending to lift patients, tended to aggravate her symptoms. Dr Stuckey stated that the appellant had lost a lot of weight since the accident; she looked thin, emaciated and generally unwell. 29 While Dr Stuckey accepted that there had been a significant aggravation of the problems associated with the scoliosis, he stated expressly that he could not fully understand some aspects of the history and findings on examination "in terms of their specific relationship to trauma sustained on 15 July 1997". In this context, Dr Stuckey was particularly concerned about the weight loss and the appellant's emaciated appearance. It seems, however, that he was also concerned about the question whether other aspects of the appellant's condition resulted from the trauma caused by the accident. This is the ordinary meaning of the language he used and is reinforced by the fact that Dr Stuckey suggested that it would be in the best interests of the appellant if she were to be thoroughly assessed by, perhaps, a rheumatologist to determine whether she had some "serious underlying constitutional disorder". Dr Stuckey was concerned that a constitutional disorder could be associated with the pain the appellant was experiencing, as well as with her weight loss. The pain in question was the pain in her back and neck. In other words, Dr Stuckey was not certain whether the pain in the appellant's back and neck was caused by the accident. That is why he suggested that she be assessed by a rheumatologist (a rheumatologist is unlikely, in the circumstances, to be a person to consult about weight loss). 30 In my opinion, for the reasons stated, Gamble ADCJ was entitled to conclude that Dr Stuckey had doubts about the levels of pain and incapacity the appellant was experiencing as a result of the accident. I do not think that she misunderstood his evidence. 31 I turn now to Professor Mitchell. 32 Professor Mitchell stated in a report dated 6 May 1999 that he accepted that the appellant had suffered "a musculo-ligamentous strain to her neck and thoracic spine in the motor vehicle accident of 15 July 1997". He expressed the opinion that the accident had aggravated the vertebral changes in the thoracic spine from her prior Scheuermann's disease. He said that, at that stage, her neck symptoms were still "quite minor" but she experienced aching in her neck and back at the end of a day's work that involved quite heavy duties. He concluded that the appellant had had some interference with her life in the past 12 months but he did not consider this to be "severe impairment"; accordingly, he did not recommend any change in her activities at work. 33 I accept Mr Gross' submissions that Professor Mitchell was not saying that he was uncertain about the levels of pain and incapacity the appellant was experiencing as a result of the accident. In my view, he was saying that, as at 6 May 1999, she was indeed experiencing symptoms caused by the accident but they were neck symptoms that did not constitute severe impairment and were quite minor. 34 It is to be noted that Dr Hughes, an orthopaedic surgeon retained by the respondent (and whose evidence was accepted by her Honour), was of the firm opinion that the pain being experienced by the appellant was not related to the accident and was probably due only to the Scheuermann's disease that she had had prior to the accident. 35 Thus, Dr Hughes, Professor Mitchell, and Dr Stuckey all thought that the appellant's neck and back conditions were related to her pre-existing scoliosis. Of these three, Dr Stuckey and Professor Mitchell thought that the accident had aggravated the scoliosis; Dr Hughes was of a different view. 36 Dr Stuckey was uncertain as to the levels of pain and incapacity caused by the accident (and the aggravation to the scoliosis). Professor Mitchell thought that the accident had caused the appellant increased neck pain but that pain in any event was quite minor. Dr Hughes thought that the accident had not caused any lasting symptoms. 37 Mr Gross submitted that, contrary to the finding of Gamble ADCJ, the evidence of Dr Stuckey and Professor Mitchell was indeed of assistance in assessing whether there had been compliance with s 79A(3). 38 In the light of Dr Stuckey's uncertainty as to the degree of pain and incapacity caused by the aggravation to the scoliosis, I do not think that his evidence lends any material support to Dr Alam. Professor Mitchell does lend some support but only to the extent that he thought that the accident had caused quite minor pain in the neck. Dr Hughes does not lend Dr Alam any support whatever. 39 In the circumstances, while I accept that Gamble ADCJ misapprehended the evidence of Professor Mitchell, I do not think that this makes any material difference to her decision as, even had she taken the quite minor neck pain referred to by Professor Mitchell into account, that would not have satisfied s 79A(3). 40 Ground 3 is in the following terms: "Her Honour misapprehended the evidence, erred in her consideration of the facts, and failed to take into account relevant matters, by holding 'It is therefore only the evidence of Dr Alam which may be of assistance in assessing whether the injuries suffered in the accident in July 1997 continued for not less than 12 months and caused significant impairment', in that: (a) Her Honour failed to bring into account the evidence of the Plaintiff herself. (b) Her Honour reached this conclusion by misunderstanding the evidence of Professor Mitchell and Dr Stuckey, as set out in Ground 2 hereof". 41 The only material difference between ground 3 and ground 2 is that ground 3 asserts that Gamble ADCJ "failed to bring into account" the evidence of the appellant. 42 The evidence of the appellant that could be said to be capable of supporting the conclusions of Dr Alam is her testimony as to the symptoms of pain and depression from which she suffered between the date of the accident and the date of the trial. 43 On 21 October 1997 Dr Zabow attended on the appellant for back pain that had increased over the "scoliotic area". The appellant did not then complain of chest pain. All subsequent consultations with Dr Zabow were for matters other than symptoms capable of being caused by the accident. The appellant ceased seeing Dr Zabow in about April 1999 (she then went to Dr Hanson). 44 Gamble ADCJ found that by the time the appellant ceased seeing Dr Zabow, the symptoms caused by the accident were likely to have resolved. Her Honour found that the symptoms the appellant experienced thereafter were "more consistent with the development of a number of different complaints, distinct from those suffered in the accident". 45 Gamble ADCJ did not ignore or disbelieve this evidence of the appellant. She accepted that the appellant had the symptoms she described. Her Honour found, however, that the accident ceased having any causative effect at the time when the appellant ceased seeing her general practitioner, Dr Zabow. Her Honour did not accept that the pain from which the appellant suffered thereafter, and her depression, were caused by the accident. She considered that those symptoms had other causes. 46 I would not uphold ground 3. 47 Ground 4 asserts: "Her Honour failed to address, and take into consideration a relevant matter, namely the extent to which the [appellant], as the result of the accident, suffered from depression, and to make findings, including reasons, concerning this part of the claim". 48 As I have mentioned, Gamble ADCJ found that the pain caused by the accident had ceased when the appellant stopped seeing Dr Zabow in about April 1999 and the pain that contributed to the appellant's depression was not caused by the accident. There was evidence to support these findings. The other contributing factor to the depression was the break up of the relationship between the appellant and Mr Bird and this had nothing to do with the accident. 49 Her Honour's findings that by the time the appellant ceased seeing Dr Zabow, the symptoms caused by the accident were likely to have resolved, adequately disposes of the claim based on depression. The reasons for this finding are manifest from her Honour's judgment. 50 In the circumstances I would not uphold the fourth ground of appeal. 51 I would dismiss the appeal with costs. ********** Last Modified: 10/13/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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