New South Wales Court of Appeal CITATION: Shoesmith v Cessnock Truck Tyre Centre Pty Ltd [2008] NSWCA 342 HEARING DATE(S): 2 December 2008 JUDGMENT OF: Ipp JA at 1, 55; Handley AJA at 50; Nicholas J at 54 EX TEMPORE JUDGMENT DATE: 2 December 2008 DECISION: Appeal dismissed with costs and the application for leave to appeal be dismissed with costs. CATCHWORDS: DAMAGES - appeal against quantum of damages - challenge to trial judge's findings on impairment of earning capacity - EVIDENCE - witnesses - corroboration - plaintiff's contemporaneous statements CATEGORY: Principal judgment PARTIES: Shane Shoesmith (Appellant) Cessnock Truck Tyre Centre Pty Ltd (Respondent) FILE NUMBER(S): CA 40845/07 COUNSEL: J E Sexton SC; C Hart (Appellant) D J Russell SC (Respondent) SOLICITORS: Bale Boshev Lawyers (Appellant) Sparke Helmore (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 558/06 LOWER COURT JUDICIAL OFFICER: A Balla DCJ LOWER COURT DATE OF DECISION: 9 November 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40845/07 DC 558/06 IPP JA HANDLEY AJA NICHOLAS J 2 DECEMBER 2008 Shane SHOESMITH v CESSNOCK TRUCK TYRE CENTRE PTY LTD Judgment 1 IPP JA: This is an appeal and an application for leave to cross-appeal arising out of a claim for damages for personal injuries sustained in a motor vehicle accident that occurred on 8 December 2004. 2 The appellant was the plaintiff below and the respondent the defendant. 3 The trial judge, Balla DCJ, found that the accident was caused by the failure of the hydraulic brake system of the vehicle that the appellant was driving at the time. 4 The respondent, who was then the appellant's employer, had provided the vehicle to the appellant. Her Honour found further that the respondent's system for maintaining and servicing his vehicles was inadequate and did not include any detailed inspection or testing of the brakes. Her Honour found that the respondent was negligent in these respects and that his negligence caused the accident. 5 Balla DCJ accepted that the appellant injured his left knee and neck in the accident. Her Honour, however, found that he had sustained injuries to his knee and neck in the past, and had exacerbated those injuries in past accidents. On her Honour's findings, in consequence of these prior incidents, the appellant had, in the past, experienced similar symptoms to those which he said were caused by the 8 December 2004 accident. 6 Her Honour found that, after the 8 December 2004 accident, the appellant returned to work just before Christmas 2004; he then resumed his normal duties and even worked overtime, one to three days a week. 7 Her Honour found that the appellant had some on-going disability caused by his left knee while working but held that this had been the case before the 2004 accident. The judge, nevertheless, concluded that the appellant sustained an aggravation of his previous injury to his left knee but that the effects of that aggravation ceased when he returned to work before Christmas. 8 As regards the appellant's neck, her Honour found that the appellant had degenerative changes before the accident and that the appellant had failed to prove that he had on-going disabilities to his neck arising out of the December 2004 accident. She found that that accident did not cause the appellant any loss of capacity resulting from the injury to his neck. 9 Her Honour awarded past economic loss to the appellant of $662.80 for the period from the date of the December 2004 accident to the date on which the appellant returned to work before Christmas of 2004. She assessed the overall quantum of the damages, to which the appellant was entitled, at $1505.40. 10 The appellant appeals against the award in relation to the quantum of damages, and the respondent seeks leave to cross-appeal on the issue of liability. 11 I turn firstly to the appeal. 12 The first three grounds of appeal challenge her Honour's finding that the appellant did not sustain impairment to his earning capacity beyond Christmas 2004. 13 There is ample evidence to justify the findings of Balla DCJ that when the appellant returned to work just before Christmas 2004, he was then "able to perform all of his preinjury duties for many hours each week", and that the appellant had not shown that "his disability was worse than it had been before the motor vehicle accident". These findings lay at the forefront of the appellant's challenge. 14 The appellant testified that he returned to work "just before" Christmas. He said that, upon returning to work, he "jumped straight into another truck and straight out on the job again". He said "I was supposed to be on light duties but he sent me straight back out doing service work again". He agreed that he did "the same sort of work as before". He said he did the "full hours" . 15 The following exchange in cross-examination speaks for itself: "Q. When you returned to work, I suggest you returned to your normal pre-accident hours, first of all? A. Yep. Full day. Q. And those hours included overtime, didn't they? A. Yes, the majority of the days, yes. Q. Sometimes you were working six days a week? A. Yes - no, not sometimes; every day - every week. Q. This is in the period from late December 2004 to late January 2005, that month? A. Yes. Q. Just to recap, six days a week … A. Yep. Q. Overtime how often? A. All depended if there was a job, probably once, twice a week, maybe three times. Q. How many hours a day would you work on average? A. From 7.30 to 5. Q. Doing exactly the same type of work that you did prior to 8 December 2004? A. Yes. Trying, anyway. Q. And you suffered another injury to your knee on 29 January 2005, didn't you? A. Yeah - oh, well aggravated it, yeah." 16 The appellant agreed that, for the month prior to the injury on 29 January 2005, he was doing his normal duties and working his normal hours. He did not work after he injured his knee again on 29 January 2005. Thus, the appellant's own testimony supports the judge's findings. 17 The respondent's witness, Mr O'Neill, testified that the appellant had some time off after the accident of 8 December 2004, "perhaps a couple of weeks", and then returned to work. According to Mr O'Neill, the appellant "continued to do the work that he was doing prior to 8 December" and worked the same hours as before. 18 In cross-examination, Mr O'Neill repeated that the appellant worked full-time; he said that he did not observe the appellant continuously, but he did his job and completed it, and Mr O'Neill assumed that he was able to carry it out. 19 The respondent referred to the evidence of Mr David Pawsey, another employee of the respondent, who said that the appellant was not at work "all the time" before Christmas and said that he was limping in that period. 20 Mr Pawsey was employed as a tyre fitter and delivery driver and it is not clear whether he was personally aware of the precise hours that the appellant worked. In any event, the judge was entitled to prefer the appellant's own evidence as to the period he worked. 21 In cross-examination, Mr Pawsey said that the appellant was limping before the 8 December 2004 accident, so nothing turns on the fact that he limped thereafter as well. 22 Mr Sexton submitted that Mr Pawsey's evidence was to the effect that there was a difference in the appellant's capacity to work when he returned just before Christmas. On my reading of Mr Pawsey's evidence, however, that submission should not be upheld. The evidence in question concerns the question directed to Mr Pawsey as follows: "When he came back from the accident, by the way, was he the same man?" The reply was: "He was limping, his leg, yeah." 23 I do not understand this reply to mean anything other than that, in Mr Pawsey's opinion, the appellant was, as the cross-examiner put it, "the same man". 24 Mr O'Neill testified that, in the period from Christmas 2004 to the end of January 2005, his business was not open during Christmas Day, Boxing Day, New Year's Day and Australia Day and it was open for work only for short weeks over that period. For that reason in that period only one six-day week was worked. The appellant contended that the wage records demonstrated that he worked for only one full week during the period from 8 December 2004 to 31 January 2005, but Mr O'Neill's evidence about the short weeks over this period explains why this occurred. 25 At the end of January 2005, the appellant suffered another injury to his knee. It was submitted, in the appellant's written submissions, that the January injury was "just a recurrence" of the injury suffered on 8 December 2004. The January 2005 accident occurred when the appellant was working on the back of a truck and a tyre fell onto his left knee. The appellant said he was then in agony. He told the hospital that the tyre hit his knee laterally, causing it to twist. The knee was swollen and the appellant was given crutches. The general practitioner certified him unfit for work from 31 January 2005 to 1 March 2005 due to a lateral ligament tear of the left knee. Her Honour did not accept that the January injury was a mere recurrence of the December injury and, in my view, that finding cannot be criticised. 26 In summary, the evidence supported her Honour's findings that the 8 December 2004 accident only prevented the defendant from working until his return to work just before Christmas 2004, and there was no change in his condition after that date when compared to his condition immediately before the December 2004 accident. I am not persuaded by any of the respondent's arguments in support of the first three grounds of appeal. In my view, there was no error on her Honour's part in this regard. 27 In the fourth ground of appeal, the appellant contends that her Honour erred in finding that he was able to return to his pre-injury duties after the accident. For the reasons already expressed, this ground fails. The appellant did testify that he was experiencing pain in his knee when he returned to his work, but those symptoms did not prevent him from working. Her Honour, however, rejected the appellant's evidence as to the extent of the pain that he said he suffered, as she was entitled to do. 28 Balla DCJ observed that the medico-legal reports in evidence were of limited assistance "in circumstances where the plaintiff has had a lengthy medical history both in relation to his left knee and his neck and none of those doctors were given a comprehensive history". In the fifth ground of appeal, the appellant contends that her Honour erred in this observation and argues that reports from Dr Sage, an orthopaedic surgeon, did contain a "comprehensive history" explaining why the appellant was incapacitated after 8 December 2004. 29 Balla DCJ gave a very detailed account in her reasons of the appellant's injuries prior to the accident of 8 December 2004. That account covers some two pages. While Dr Sage does mention most of the prior injuries in his reports, his account is not entirely comprehensive. It does omit relevant incidents recorded by her Honour, particularly in regard to the appellant's neck. 30 None of the doctors were cross-examined. A bundle of medical reports, expressing different opinions, was handed up to her Honour to deal with it as best as she could. In my opinion, she was entitled to view with scepticism the reports that omitted to refer to and take account of all relevant prior incidents, injuries and symptoms that the appellant had experienced. 31 Balla DCJ preferred the opinion of Dr Caldwell who concluded that the appellant did not have a severely injured knee, did not sustain a new injury to the knee in the accident of 8 December 2004, and who expressed his surprise that the appellant did not return to work. 32 The appellant submits that her Honour gave no reasons for preferring Dr Caldwell. Her Honour noted that Dr Caldwell was the appellant's treating orthopaedic surgeon, both before and after the accident. It is implicit in her Honour's judgment that this fact persuaded her to prefer Dr Caldwell above the other doctors. A trial judge is entitled to attach significant weight to the treating doctor, particularly where the doctors are not required to give oral evidence. I would not uphold the fifth ground of appeal. 33 Accordingly, I would dismiss the appellant's appeal. 34 I now turn to the respondent's application for leave to cross-appeal on liability. 35 At the outset, I would note that the amount in issue is relatively very small and no question of principle arises. 36 Mr Russell, senior counsel for the respondent, made two points in support of the application. 37 The first was based on an observation by Balla DCJ that she would not accept the evidence of the appellant in relation to the circumstances of the accident (and any incapacity from that accident) without that evidence being corroborated by other independent evidence. 38 When dealing with the question whether the brakes failed, her Honour referred to what she described as "relatively contemporaneous complaints of brake failure". These included: (a) The description of the accident by the appellant when in hospital after the accident had occurred and; (b) Statements the appellant made to a police officer and Mr O'Neill's wife later that day. 39 Her Honour, having mentioned these two matters, said: "In view of these contemporaneous reports I am satisfied that the accident was the result of the hydraulic brake system failing." 40 Mr Russell submitted that this evidence, on which her Honour relied for corroboration of the appellant's evidence that the brake system failed, was not independent evidence of the kind that the judge had said she required. It was in fact evidence given by the appellant himself. 41 I accept that there is justification in this criticism but her Honour's reference to independent evidence may be understood as including evidence of statements made outside the courtroom. Whatever her reasoning may have been in this regard, it is apparent, from her judgment as a whole, that, while rejecting the appellant's evidence generally on the ground of credibility, she was prepared to accept that part of his evidence which related to the cause of the accident. This she was entitled to do. 42 Accordingly, I would not uphold this argument: particularly not for the purposes of granting an application for leave to cross-appeal in a matter involving some $1,500. 43 The second ground on which Mr Russell relied went to the issue of causation. He submitted that Bella DCJ applied incorrect principles in determining this issue. 44 Her Honour found that the cause of the brake failure was the failure of a seal in the master cylinder. Her Honour found that the respondent's routine servicing did not include any detailed inspection or testing of the brakes. Her Honour observed: "This vehicle had been in constant use for 5 and a half years without anyone checking to see whether the brakes were working properly other than the annual RTA inspection and Mr O'Neill observing the level of the brake fluid every 10,000 kim." 45 Mr Gillies, an expert witness, stated in a report tendered in evidence: "The apparent failure of the brake was most likely from a failure of the hose or pumping components, or in the boost portion of the brake system, because some braking capability was retained, and that would have been detectable afterwards with a proper dynamic test of the vehicle, but would probably have been prevented if suitable action had been taken to ensure that the vehicle was regularly checked by a qualified mechanic." 46 Mr Russell referred to oral evidence that Mr Gillies had given and submitted that that evidence indicated that the passage in Mr Gillies's report, to which I have referred, should be understood as meaning that the defect would only have been discovered had the mechanic's attention been drawn to it. I do not accept that submission. In my opinion, the statement in Mr Gillies's report, which I have quoted, stands on its own and should not be understood as being qualified as Mr Russell submitted. 47 In my opinion, her Honour's findings as to lack of maintenance, coupled with Mr Gillies's opinion, as stated in his report, are sufficient to establish causation. 48 Accordingly, I would not grant leave to appeal. I would dismiss the application. 49 I propose that the appeal be dismissed, with costs and the application for leave to appeal be dismissed with costs. 50 HANDLEY AJA: I agree. I would only add some brief observations in relation to the application for leave to cross-appeal. This sought to challenge a judgment for a mere $1,505.40. 51 In my judgment, leave to appeal or cross-appeal to challenge a judgment for an amount as small as this would only be granted if the case raised a real question of general principle, or the circumstances were otherwise quite exceptional. It should not be done to hear a fresh argument on the facts. 52 I also add to the observations of the Presiding Judge that, in my opinion, the expert evidence that brake failure could occur in a vehicle with this mileage, of this age, is independent evidence which is capable of corroborating the plaintiff's evidence that the brakes did fail. 53 Subject to that, I agree with his Honour's reasons and the orders he proposes. 54 NICHOLAS J: I agree with the judgment of the learned Presiding Judge, and with the observations of Handley AJA. 55 IPP JA: The orders of the court will be as I propose. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.