Stephen Raymond Dalton(Appellant) v David Pinkerton (First Respondent)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ
• Judgment Date: 17 February 2017
• Docket Number: File Number: SCA 20 of 2016
• Date: 17 February 2017

Stephen Raymond Dalton

(Appellant)

and

David Pinkerton

(First Respondent)

Insurance Australia Ltd t/as NRMA Insurance

(Second Respondent)

[2017] ACTSC 28

Before:

Murrell CJ

File Number: SCA 20 of 2016

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Appeal from Magistrates Court — Personal injury — Motor vehicle accident — Damages — Matters to be considered in reduction of damages — Credibility of oral testimony — Credibility of plaintiff — Calculating out-of-pocket expenses

Cases Cited:

De Marco v Italo-Australian Club (ACT) Ltd [2010] ACTSC 28

Dojcinoski v Aleksovski [2015] ACTSC 357

Eames v Shain [2012] ACTSC 116

Fox v Percy [2003] HCA 22 ; 214 CLR 118

Graham v Baker [1961] HCA 48 ; 106 CLR 340

Gray v Richards (No 2) [2014] HCA 47 ; 315 ALR 1

Griffiths v Kirkmeyer [1977] HCA 45 ; 139 CLR 161

Malek v Remondis Australia Pty Ltd [2015] ACTSC 135

MBP (SA) Pty Ltd v Gogic [1991] HCA 3 ; 171 CLR 657

Ning v McGrath [2015] ACTSC 163 ; 71 MVR 376

RailPro Services Pty Ltd v Flavel [2015] FCA 504 ; 242 FCR 424

Ryan v Vizovitis [2017] ACTCA 3

Singh v Cooper [2016] ACTCA 55 ; 78 MVR 201

Warren v Coombes [1979] HCA 9 ; 142 CLR 531

Legislation Cited:

Health and Other Services Compensation Act (Cth) s 23(5)

Magistrates Court Act 1930 (ACT) pt 4.5

Supreme Court Act 1933 (ACT) s 37E

Representation:

Counsel

Mr A Hausfeld (Appellant)

Mr K Rewell SC (First and Second Respondents)

Decision:

The orders of the Magistrates Court are set aside. Judgment for the appellant in the sum of $45 040. Each party is to pay its own appeal costs.

Murrell CJ

The appeal

1 On 18 June 2010, the appellant's vehicle was stationary at a roundabout on the corner of Sulwood Drive and Sainsbury Street in Kambah, when it was hit from behind by a vehicle driven by the first respondent and insured by the second respondent. The appellant suffered a whiplash injury.

2 The appellant commenced proceedings in the Magistrates Court. Liability was admitted and the matter proceeded as an assessment of damages. The appellant claimed that he suffered multiple injuries, particularly to his neck and lower back. He said that the main ongoing disability was headaches. The respondents did not dispute that the appellant continued to suffer from headaches associated with cervical facet joint inflammation, but disputed the severity and frequency of the headaches.

3 Magistrate Boss (the Magistrate) accepted that it was likely that the appellant's pre-existing degenerative lower back condition was to some extent aggravated by the accident and that the accident caused inflammation of the cervical facet joints and related headaches: at [42] and [56]. However, her Honour was not satisfied that the appellant and his wife had given honest and accurate evidence in relation to the headaches and back pain suffered as a result of the accident: at [46]. Her Honour did not accept that the appellant's headaches were as severe and frequent as the appellant and his wife had stated: at [49] and [56]. Her Honour proceeded on the basis that the accident had resulted in the appellant experiencing a low level of pain caused by occasional headaches: at [59].

4 The Magistrate gave judgment for the appellant in the sum of $38 675.04. The sum comprised $30 000 for general damages ($20 000 for the past and $10 000 for the future), a $5000 buffer for future economic loss and the remainder for out-of-pocket expenses.

5 The appellant appealed, claiming that:

• (a) The Magistrate had unreasonably rejected the evidence of the appellant and his wife and should have accepted that the appellant suffered from significant and disabling headaches which affected his work capacity and ability to undertake domestic tasks.

• (b) In the absence of procedural fairness, the Magistrate should not have reduced interest on general damages because of the delay between the accident and the hearing.

• (c) The Magistrate had erred in her approach to Medicare benefits.

6 The appellant contended that, as a consequence of these errors, the Magistrate had erred in her assessment of general damages, interest on general damages, future wage loss and past out-of-pocket expenses, and should have awarded damages for future out-of-pocket expenses, past wage loss and past and future domestic assistance.

Appeal from the Magistrates Court

7 The appeal was brought under Pt 4.5 of the Magistrates Court Act 1930 (ACT). It was a rehearing: Ning v McGrath [2015] ACTSC 163 at [11] (“ Ning”); Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 at [11]–[14]. On such an appeal, the appellate court must conduct a real review, drawing its own inferences and conclusions from the evidence, but bearing in mind the advantages of the primary judge in relation to fact-finding: Ning at [11]. The parties agreed that the approach to such an appeal is that which applies to an appeal under s 37E of the Supreme Court Act 1933 (ACT). The principles relating to such an appeal were recently summarised in Singh v Cooper [2016] ACTCA 55 at [44]–[47] and Ryan v Vizovitis [2017] ACTCA 3 at [132]–[136] (“ Ryan”).

8 In Ryan at [132], the Court of Appeal endorsed the approach of Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [78], where her Honour emphasised the fundamental distinction between the approach of an appellate court to a case which involves admitted or found facts, and the approach to a case which required the trial judge to form a view about the credibility of oral testimony. In the former category of case, the appellate court is generally in as good a position as the trial judge to decide the proper inference to be drawn from undisputed or decided facts: Warren v Coombes (1979) 142 CLR 531, 551 per Gibbs ACJ, Jacobs and Murphy JJ. In the latter category of case, while the trial judge's findings about the credibility of oral evidence are not entirely immune from challenge by the appellate court, the appellate court must respect the trial judge's evaluation of credibility. Further, the appellate court cannot assume that every consideration influencing the trial judge's assessment of credibility will find expression in the reasons: Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [41].

Witness assessment

9 The Magistrate's findings about the credit of the appellant and his wife were critical to the assessment of most heads of damage.

10 In evidence, the appellant said that he had experienced less severe headaches (which lasted at least two or three hours) about three or four times a week, commencing in 2010 and continuing to the date of the hearing. He had experienced severe headaches commencing in about August 2010 and occurring about every two months. The severe headaches rendered him bedridden. He said that his neck was ‘okay most of the time’ but that his lower back was very sore right down by the tailbone. The lower back symptoms interfered with his sleeping. He said that his symptoms had caused work absences.

11 His wife said that the appellant suffered from debilitating headaches about every six weeks to two months and less severe headaches (which lasted a few hours) four or five times a week. The appellant's wife said that since the accident, he had had to wear a back brace frequently. The appellant himself did not mention wearing a back brace.

12 The Magistrate gave the following reasons for forming an adverse view of the evidence of the appellant and his wife concerning the frequency and severity of the appellant's headaches and back pain:

• (a) The appellant did not proffer that he had suffered pre-existing back pain. He stated that he did not recall consulting Dr Sharmin, a general practitioner, on 23 March 2010 (three months before the accident) complaining of low back pain radiating into his right buttock and down the right leg, which meant that he was unable to stand for long periods and in relation to which he was referred to a physiotherapist.

• (b) The appellant stated that he had difficulty undertaking home maintenance, but in January 2014 he had undertaken paving work, moving and laying pavers and using a Wacker Packer. The Wacker Packer was a sizeable and relatively heavy implement, but the appellant was able to load and unload it from a trailer and operate it with no apparent difficulty.

• (c) In July 2015, Dr Andrews, the appellant's treating neurologist, had given him a prescription for medication to be used when he suffered from severe and disabling headaches, but up to the date of the trial (some five months later) the appellant had not filled the prescription.

• (d) The claim for lower back pain was not part of the original claim.

• (e) The appellant was able to attend a gym regularly, ride a motorbike to work, enjoy occasional bicycle rides and participate in camping holidays.

• (f) The amount of personal leave taken by the appellant did not increase after the accident.

13 These reasons provide a rational basis for the Magistrate's view that the appellant and his wife had exaggerated the disabilities that the appellant experienced as a result of the accident. Further, as noted at [8] above, it cannot be assumed that every consideration influencing the trial judge's assessment of credibility will find expression in the reasons. The appellant and his wife were cross-examined extensively and the Magistrate would have considered the whole of their evidence, including cross-examination. Her Honour's assessment of credibility would have involved observing the demeanour of the witnesses.

Chronology of medical and...