Robert Owen Goldsborough v Sonja O'Neill [1996] ACTSC 18 (29 March 1996)

SUPREME COURT OF THE ACT

ROBERT OWEN GOLDSBOROUGH v. SONJA O'NEILL
No. SCA 58 of 1995
Number of pages - 12
Appeal - Practice and Procedure - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES(1) CJ, GALLOP(2) AND HIGGINS(2) JJ

CATCHWORDS

Appeal - damages for personal injury - mitigation of damages - whether the respondent's refusal of medical treatment was unreasonable - aggravation of pre-existing condition - kyphoscoliosis - differing medical opinions - credibility of witnesses.

Practice and Procedure - whether written medical reports admitted by consent are taken to be admitted - whether authors of reports need to be called - Browne v Dunn - fibromyalgia - necessity for recourse to medical dictionaries - presumption of causation.

Damages - mitigation of loss - whether respondent failed to mitigate loss - refusal of medical treatment - whether unreasonable - whether causative of damage.

Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345

HEARING

CANBERRA, 1 February 1996
29:3:1996

Counsel for the Appellant: Mr J.M. Stowe QC

Instructing solicitors: Deacons Graham and James

Counsel for the Respondent: Mr G Stretton

Instructing solicitors: Hill and Rummery

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed with costs.

DECISION

MILES CJ The facts of this appeal from the Master are outlined in the joint judgment of Gallop J and Higgins J. I agree with the conclusions reached by their Honours, but as I reach those conclusions by a slightly different route, I shall state briefly my reasons for doing so.

2. The Master had before him a woman who, at the age of 27 years, was involved in a motor vehicle collision and who was discharged from hospital without apparent injury later on the same day. At the date of the hearing, nearly eight years later, she claimed that she was, as a result of injury sustained in the collision, totally unable to work. She claimed that for substantial parts of the interim period she was unable to work at all or able to work only restricted hours. It was to be expected that her claim would be substantiated by medical evidence. The Master, after surveying the medical evidence presented, concluded that the plaintiff's continuing pain and disability was caused by injury in the collision. The Master did not identify the nature of the injury or injuries which gave rise to the pain or disability and expressly stated that on the state of the evidence it was not possible for him "to describe the actual mechanism" which caused the pain and disability. Despite, or because of the abundant medical evidence, (there were reports or sworn evidence from 17 doctors), it is difficult to read into the pleadings and particulars or into the oral and written evidence or even into the Master's judgment any precise medical issues. The particulars filed and set out under not too accurate headings were as follows:

"INJURIES
(a) Neck pain;
(b) Back pain and bruising;
(c) Seat belt bruising;
(d) Concussion;
(e) Pain in right wrist;
(f) Headaches;
(g) Graze to top of head associated with some swelling;
(h) Shock

CONTINUING DISABILITIES
(a) Severe headaches;
(b) Pain and restriction in neck movement;
(c) Pain and restriction in shoulder movements;
(d) Pain and restriction in lower back;
(e) Pain from lower back down buttock and back of legs into
toes (mostly great toe and the (sic) next to it) with feeling of
altered sensation extending into same area;
(f) Restrictions in domestic activity such as ironing, washing
and vacuuming;
(g) Dizziness and loss of balance;
(h) Tingling sensation down both arms and in the fingers worse
on the right;
(i) Anxiety and depression;
(j) Difficulty sleeping due to back pain;
(k) Difficulty on caring for children."

3. Counsel for the plaintiff on the appeal submitted that much of the medical evidence was in the form of reports admitted by consent or pursuant to O.39 r.48 and that in the absence of notice that the particular author of the report was required for cross-examination, the truth of the contents of the report must be taken to be admitted. No authority was cited for this wide-sweeping proposition. In my view, there is no principle to sustain it. Litigation, particularly personal injury cases, would become more protracted and more expensive if such a rule were to be observed. Professional witnesses whose reports are in evidence should not be brought to court to be examined in chief or to be cross-examined unless the examiner has made an informed decision that something is able to be got from the witness which is not in the report. The party who puts in the report without calling the maker is normally bound by the limitations of the report, if any, and the maker should not be called to be cross-examined on the report simply to avoid any imagined breach of the rule in Browne v. Dunn (1893) 6 R 67.

4. The Master found that the plaintiff was employed as a Public Servant in the area of Public Health Administration at the time of the collision. She had received training in hypnosis and was interested in alternative medicine and therapies. She did not appear to lose consciousness at the time of the collision. She was taken immediately to hospital and discharged some hours later. Her mother took her home. She stayed off work. She saw her general practitioner, Dr Wu, four days later complaining of pain in all areas of the back and shoulders and of dizziness and headaches. She saw Dr Wu on four occasions, all in November, and improved with acupuncture and Voltarin medication. A CAT scan of the cervical area only was said to be normal.

5. The plaintiff remained off work and went with her husband to the United States where he took up an overseas posting in the Royal Australian Navy. She worked in the United States as a counsellor in a clinic, but "was not able to cope" because of pain. She reduced her hours of work to 30 per week. A neurologist, whom she consulted mainly about headaches, found no abnormal neurological signs. That latter aspect has remained constant in her case. She rejected the medication then prescribed and did not follow suggested alternative therapy such as counselling and chiropracty. Records indicate that she failed to keep a second appointment with a radiologist.

6. The plaintiff returned to Australia and resumed her former employment in May 1990. Dr Andrews, a neurologist, who saw her early in the year, recorded tenderness in the cervical area and facet joints in the neck. By July 1990 she began attending an obstetrician in relation to her first pregnancy. She complained to the obstetrician of headaches and backache, and also cervical pain. By this time the back pain had become more significant than the headaches. She declined to take prescribed medicine, at first because she distrusted it, and later because of her pregnancy. Dr Corry, a practitioner in rehabilitation medicine, thought that she was suffering from post-traumatic stress disorder and recommended pain management. She declined the latter course as she disapproved of the methods used. In February 1993 when she was pregnant a second time, her obstetrician noted limitation of neck movement and cervical tenderness and also diagnosed post-traumatic stress disorder.

7. In May 1993 when the plaintiff had again returned to work, she saw Dr White, a consultant neurologist, to whom she had been referred by her solicitors. For the first time medical opinion took into account the matter of a condition of kyphoscoliosis in her thoracic and lumbar regions. The issues thus arose of the effect of the injury on that condition and the effect of that condition on the plaintiff's symptoms. A number of doctors who saw her subsequently had something to say on those issues.

8. The plaintiff's failure to improve led Dr Kelly, who by early 1994 had become her general practitioner, to refer the plaintiff to a pain management clinic, but again she declined to follow that advice when informed that it would involve consulting a psychologist.

9. The plaintiff did, however, by arrangement with her solicitors agree to see Dr Veness, a consultant psychiatrist, in early 1995. Dr Veness was provided with reports of some of the other doctors and conducted a full physical examination. As the Master found, Dr Veness, within his own speciality, diagnosed a reactive depression, caused by the trauma of the accident and its aftermath. But Dr Veness also found, as a result of his physical examination, that the plaintiff was suffering from a condition called fibromyalgia, an incurable condition, usually the concern of rheumatologists, but "well documented in the literature".

10. Dr Skapinker, a neurosurgeon, was one of two of the doctors retained by the defendant who was cross-examined on the diagnosis of fibromyalgia by Dr Veness. Dr Skapinker was severely criticised in this respect by the Master who found his evidence disingenuous and misleading.

11. Whilst I think that the Master was entitled to prefer the opinion of Dr Veness to that of Dr Skapinker, it has to be said that the issue of fibromyalgia was not dealt with very satisfactorily at the trial. It was not mentioned in the plaintiff's particulars of injuries and disabilities. Although within the speciality of rheumatology, no rheumatologist gave evidence or furnished a report. The evidence supporting a diagnosis of fibromyalgia was given only by a psychiatrist. Dr Skapinker expressed the opinion that no such condition exists in the sense of chronic muscular ligamentous strain. He explained that muscular ligamentous strain is like bruising and just as a bruise cannot be chronic, a muscular ligamentous strain could not be chronic and could not persist for more than six to twelve weeks following the injury that caused the strain. The Master himself asked Dr Goldrick about fibromyalgia and elicited the response that it is common amongst people who have had whiplash injuries and is usually demonstrable by trigger areas which an examining doctor can detect by manipulation but which he, Dr Goldrick, did not detect. Dr Goldrick, according to the transcript, described it as part of the "faith law" (perhaps he meant folklore) of medicine, known for generations, particularly in cold and wet climates, but more recently and best known in Australia to accompany whiplash injury, with symptoms similar to those that follow trauma. Stress including that accompanying litigation adds "a dimension" to the problem, according to Dr Goldrick.

12. In the light of that evidence, it was open to the Master to look favourably upon the diagnosis of fibromyalgia and to reject the opinion of Dr Skapinker that there was no such condition and the opinion of Dr Goldrick that it did not exist in the plaintiff. However, it was, in my view, not apparent why the Master considered it necessary to dismiss Dr Skapinker's evidence as "disingenuous and misleading". Neither Dr Veness nor Dr Goldrick were asked about the view that muscle strain can no more be chronic than can a bruise of the flesh. Dr Goldrick's reference to fibromyalgia as part of the "faith law" of medicine suggests that it may not be accepted by all doctors as a term of medical science. It is certainly not a term that is heard frequently in these courts. It is permissible to have recourse to medical dictionaries and the like in order to understand the evidence of doctors. As I said in Australian Overseas Telecommunications Corporation Limited v. McAuslan [1993] FCA 620; (1993) 47 FCR 492, a decision of the Full Court of the Federal Court of Australia at 508:

"..... a tribunal operates on a fund of common knowledge and may
refresh that knowledge by reference to dictionaries and other
works. That course may be taken, and is frequently taken so
that the tribunal may understand the evidence particularly
evidence of a technical nature."

13. In Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at 297, Deane J relied upon Butterworths's Medical Dictionary, 2nd ed (1978), for a definition of the medical term "therapeutic".

14. Such recourse to the medical works available in the library of this Court, however, does not yield an entry in the name of fibromyalgia. Indeed, although the Master criticised the evidence of Dr Skapinker in bold terms, the Master, in rejecting the possibility of describing the "actual mechanism" causing the plaintiff's continuing pain and disabilities, seems to have stopped short of a positive finding that the plaintiff suffered from a condition known as fibromyalgia.

15. Kyphoscoliosis is also a term not frequently encountered in the courts. Its meaning is not clear on its face. It also does not appear in the usual medical dictionaries, although Mann's Medical Assessment of Injuries for Legal Purposes, 4th ed. (Sydney 1985) contains the following entry at p.221:

"When the spine is deformed so that it is flexed forward, the
deformity is given the name kyphosis; if hyper-extended it is
called lordosis. Where there is a lateral curvature of the
spine it is called scoliosis. Combinations of those three
deformities are common and are given compound names, for
example, kypho-scoliosis."

16. Some of the evidence in the present case suggests that kyphoscoliosis is a spiralling form of curvature which is consistent with the name and with Dr Mann's description. Not much else was said in evidence about its nature apart from the fact that it is congenital. Whether it is progressive in adults and whether it is likely to produce symptoms either with age or trauma, or both, were not questions to which the evidence in the trial yields satisfactory answers. The clearest evidence in the trial about the nature of kyphoscoliosis came from Dr Skapinker, but as the Master rejected his evidence, it is difficult to know what weight can be put on it. Dr Skapinker described the condition as one of ossification, the centres of which become fixed in girls after the age of 15. Hence on that view the deformity ceases to be progressive at adolescence and cannot be changed by trauma except by operative means or fracture. Otherwise, according to Dr Skapinker, the deformity can neither be aggravated nor treated. It is consistent with Dr Skapinker's evidence that over a period of time the mechanical disadvantage of the deformity may subject the muscular and ligamentous system to repeated strain by the ordinary activities of everyday life and pain may result from that repeated strain. However, that possibility was neither mentioned by him nor put to him.

17. Dr Goldrick agreed that the congenital abnormality could have predisposed the plaintiff to symptoms but he was not asked why and did not explain the mechanism. In his report Dr Goldrick said that the congenital anomaly could cause the pain in the plaintiff's neck and lumbosacral spine but not the pain in her arms or legs. Dr Joubert, a neurologist, noted the kyphoscoliosis and reported that it plays a greater role in the production of the plaintiff's symptoms than does the injury of 1987. In evidence he said that the symptomatology but not the pathology of the congenital condition was possibly aggravated by the soft tissue injury.

18. Dr White reported that it was unlikely that the kyphoscoliosis was entirely due to the accident. He was positive that the kyphoscoliosis had been aggravated by the soft tissue damage associated with the accident and by subsequent muscle spasm. He considered that further muscle spasm could "worsen her kyphoscoliosis". Dr White was not cross-examined.

19. The only other doctor who appears to have noted the kyphoscoliosis was Dr Corry, and he did not state that it had any significance. For Dr Corry, post-traumatic stress disorder was the most important factor giving rise to the plaintiff's symptoms and disabilities. Other doctors came to a similar opinion that the plaintiff suffered a post-traumatic stress disorder, although that diagnosis was not urged on the plaintiff's behalf by counsel and was not alleged in the particulars. Dr Veness, whose lengthy evidence the Master seems to have accepted, said nothing about post-traumatic stress disorder, although it was a matter which would appear to be within his specialty. Dr Veness observed kyphoscoliosis as a localised lump at the junction of the neck and shoulder at the back as described in the reports of other doctors. Otherwise he simply notes the comments of those other doctors in relation to the accentuation of "possibly pre-existing" kyphoscoliosis by the mechanism of muscle spasm and increased muscle tone.

20. In the light of all this evidence, it is not surprising that the Master was not able to determine on the balance of probabilities the exact physical cause or mechanism by which the plaintiff had suffered injury to her thoracic and lumbar area or, if she did, how it was that symptoms had continued to trouble her over the years. With respect to the Master's difficulty, it is possible with hindsight to postulate a scenario that the plaintiff had a pre-existing congenital condition at the time of the collision with which her muscular and ligamentous system had been able to cope until that time without sufficient strain to cause symptoms. The collision caused soft tissue injury, and resulting generalised pain in her back. Her posture and gait were probably adjusted in order to cope with that pain. It is likely that there was further adjustment of her muscular ligamentous system by reason of her pregnancies. Taking into account her continuing or developing depression and emotional stress, it may well be that her muscular ligamentous system has never returned entirely to its pre-collision arrangement whereby strain on it was minimised. It may well be that she is now and has for some time been unable to effect a return to her pre-injury arrangement of muscles and ligaments in the spine, so that she is subjected to repeated strain in the muscles of her neck and back and that strain produces symptoms. The condition is of repeated muscular ligamentous strain with resulting symptoms repeated and lasting but not chronic in the sense of continuous and not like a chronic infection or chronic disease.

21. Counsel for the defendant made the point that the question of kyphoscoliosis was not raised in the plaintiff's history until after her pregnancies and that the effect of the pregnancies on the muscular ligamentous system, in conjunction with the pre-existing kyphoscoliosis, was likely to have overshadowed the continuing effect (if any) of the injury suffered at the time of collision. That is an inference available from some of the medical evidence, but it was not incumbent upon the Master to draw that inference to the exclusion of a necessary causal connection between the plaintiff's continuing condition after injury and after her pregnancies. Ultimately the Master was entitled to find for the plaintiff and the plaintiff was entitled to succeed on the principle contained in the often quoted words of Rich ACJ in Adelaide Stevedoring Company Limited v. Forst [1940] HCA 45; (1940) 64 CLR 538, where reference is made to the presumption which a sequence of events from injury to disabling condition will naturally inspire in the mind of any common sense person uninstructed in pathology.

22. Whether or not the mechanism of the plaintiff's continuing symptoms and disabilities was established or not, the plaintiff was entitled to succeed on the basis that there was evidence sufficient to support her claim and that there was a causal link between her continuing symptoms and the injury received at the date of collision.

23. The other point raised in the appeal was that the plaintiff had not mitigated her loss by accepting appropriate medical treatment and medication. It is sufficient to say that there was abundant evidence that she refused to do so. Although she was a person who worked in the area of health and health counselling, she was sceptical about conventional medicine. She used self-hypnosis in attempts to cope with her pain. She was interested in alternative medicine and alternative health therapies. She clearly had strong views about these matters, so strong that she repeatedly rejected advice from competent medical practitioners about unorthodox treatment as well as mainstream medicine. Her reaction to such advice was not that of most people, who may be expected usually to follow the advice at least to the extent of trying. There was a possibility at least that if the plaintiff had followed such advice her condition would have improved and that her pain and depression would not have been as great. On the face of it there was strong ground for arguing that the plaintiff had unreasonably failed to mitigate her loss.

24. However, the onus is on the defendant. In Fazlic v. Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345, the High Court held unanimously that on the issue of failure to mitigate loss by reason of refusal of medical treatment, the defendant must prove that the plaintiff's refusal is unreasonable in the light of the information given to the plaintiff. Although that case was concerned with refusal to undergo a major operation, the same principle must apply to refusal to accept medication, or remedies such as acupuncture, chiropracty and counselling. Conventional medication may have more or less predictable beneficial results; similarly, it may have unpleasant and dangerous side effects. Alternative remedies may also have possible undesirable consequences. Whilst the refusal of the plaintiff to follow medical advice in these respects may have been self-opinionated, it was not shown to be unenlightened. There was virtually no evidence about what advice the plaintiff had been given as to possible harmful side effects of medication and other remedies or as to the degree of probability of beneficial results. Furthermore, as was argued on behalf of the plaintiff, there was no evidence given to the Master as to the degree of likelihood of the proposed medication improving the plaintiff's condition. In the absence of such evidence the defendant was bound to fail to discharge the onus of establishing that the plaintiff had unreasonably failed to mitigate her loss.

25. I agree in the proposed orders.

GALLOP AND HIGGINS JJ This is an appeal from a decision of the Master given 7 July 1995. He awarded the respondent $417,779.00 composed as follows:

Pain and suffering $ 40,000
Interest on past component 4,600
Out of pocket expenses 8,779
Past loss of income 98,207
Interest on past loss of income 16,000
Future loss of income 200,000
Griffiths v Kerkemeyer 10,000
Future medical expenses 15,000
Fox v Wood 25,193
$417,779

2. The appeal does not seek to re-open the question of liability. It is the appellant's contention that the Master failed sufficiently to discount damages to account for a pre-existing kyphoscoliosis and its effects. It was also contended that the respondent had failed to mitigate her damages and that the Master had wrongly failed so to find.

Causation - Pre-existing Kyphoscoliosis
3. Kyphoscoliosis was explained as a deformity of the spine. There was no dispute between the medical experts who all concluded that the respondent had such a condition and that it was congenital. It was not caused by the accident. However, there was a dispute as to whether the condition had been itself exacerbated or, at least, rendered symptomatic by the accident so as to explain the pain and disability of which the respondent complained.

4. Having reviewed the evidence, the Master expressed his finding on causation as follows:

"In that state of the evidence it is not possible for me to
describe the actual mechanism which is causing the plaintiff's
continuing pain and disability.

I am comfortably satisfied, however, that she is suffering it,
and that it was caused by the accident.

The accident did not cause the kyphoscoliosis. That congenital
condition, however, may have predisposed her to some extent to
injury, though I do not think it was a major factor. I reject,
for the reasons which follow, the suggestion that she might by
now have been suffering back and neck pain because of a
deterioration in that condition even if the accident had not
happened."

5. Dr White, neurologist, was of the view that the kyphoscoliosis itself had been aggravated by the accident. That aggravation was the source of the respondent's symptoms of pain and consequent disability. Dr Kelly, general practitioner, noted and agreed with Dr White's opinion.

6. A contrary view was expressed by Dr Skapinker, a neurosurgeon. That opinion was tendered on behalf of the appellant. His view, correctly summarised by the Master, was that there had been a soft tissue injury suffered by the respondent in the accident. However, the effects of that injury had disappeared after 6-12 weeks or, perhaps, a little longer. Coincidentally, those symptoms were continued by reason of the naturally occurring effect, then appearing, of the kyphoscoliosis. Dr Skapinker strongly resisted any suggestion that it was possible for trauma to have aggravated the kyphoscoliosis or to have caused any symptoms which might appear therefrom. He also denied that muscle contraction, headache and muscle pain of which the respondent complained could have resulted either from the accident or the effect of the kyphoscoliosis. Indeed, he doubted the veracity of the respondent's complaint that she had, following the accident, experienced those symptoms.

7. The appellant did not require those of the respondent's doctors who expressed a contrary view to Dr Skapinker to attend for cross-examination.

8. The other medical opinions tendered on behalf of the appellant included that of Dr Joubert, a consultant neurologist. He accepted the respondent's complaints as genuine but considered them explained by the kyphoscoliosis and its effects. Thus, whilst Dr Skapinker had denied that those symptoms existed, Dr Joubert accepted their existence but attributed them to the pre-existing kyphoscoliosis alone. Dr Skapinker had denied that those symptoms, if they existed, could be attributed to that condition.

9. The third opinion on this matter tendered by the appellant was that of Dr Goldrick, a consultant physician. He doubted the veracity of the respondent's account of her pain and suffering. However, in his view, those symptoms, insofar as they were genuine, could be explained by the pre-existing kyphoscoliosis.

10. Drs Skapinker, Joubert and Goldrick were subjected to cross-examination on behalf of the respondent.

11. There was evidence that there was a psychiatric contribution to the level of the respondent's perceived pain disability.

12. The cross-examination of Dr Goldrick centred upon his reasons for refusing to accept the respondent's complaints of pain and disability as truthful. He based his opinion on the fact that he had not found objective evidence of pain such as muscle spasm. However, other doctors had found such indications on their examinations. They were not challenged as to the veracity or accuracy of their findings. Thus, it would have been open to the Master to have concluded that Dr Goldrick's opinion was based on a misconception as to the true facts. The same criticism could have been levelled at Dr Skapinker's evidence.

13. It is obvious, in those circumstances, that a central issue was the credit of the respondent. It was open to the Master, who saw and heard her, to have accepted the respondent as a witness of truth.

14. Once that issue was decided, it was, nevertheless, necessary for the Master to be satisfied that the pain and disability arose from the accident. That involved the rejection of the hypothesis advanced by Dr Skapinker. It is clear that the Master was not impressed with that witness' objectivity. Dr Skapinker's opinion was at variance with other apparently acceptable medical opinions. It defied common experience and relied heavily on an apparently unlikely coincidence, namely, that the apparent onset and continuance of the respondent's symptoms commencing with the accident had ceased to be related to it and had begun to be caused by the kyphoscoliosis. It was open to the Master to have rejected Dr Skapinker's view not only as to its acceptability but even as to its veracity.

15. The view of Drs Joubert and Goldrick that the kyphoscoliosis could have led to the respondent's symptoms, even if the accident had not occurred, was a possible explanation for the respondent's continuing symptoms. However, the view advanced by Dr White and supported by Dr Kelly to the contrary, was in no way discredited. It was open to the Master to have accepted that view as more probably true.

16. The Master correctly took account of the psychiatric contribution to the respondent's disabilities. He concluded, however, that he could not decide which particular mechanism was responsible for the continuing symptoms of which the respondent complained. That was a reference, in context, to the psychiatric element referred to by Dr Veness as opposed to the physical element referred to by Dr White.

17. It was not necessary for the Master to be satisfied as to the particular mechanism producing the respondent's pain and disability. It was only necessary for him to be satisfied on the balance of probabilities that they resulted from the trauma of the accident and were likely to continue.

Failure to mitigate
18. It is a correct statement of law that if a plaintiff unreasonably refuses treatment which would alleviate a disability then, to that extent, the pain and disability is not to be regarded as being a result of the defendant's negligence. The award of damages otherwise warranted will be reduced accordingly.

19. The burden of establishing that a plaintiff has unreasonably refused treatment which would have diminished relevant disabilities rests upon the defendant (see Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345).

20. That proposition was not in contest. The appellant rather contended that the Master should have found that the respondent had unreasonably refused treatment and that such refusal left her worse off than otherwise.

21. As to the first part of that proposition, the respondent acknowledged refusal of certain medication and counselling. She gave an explanation for such refusal. To quote an example, AB 51,

Well, you didn't take any drugs. You refused to take drugs, is
that right? - - - I chose not to take drugs.

22. However, she did take some drugs, for example (at AB 52) Prothiaden, but ceased after a week. Her explanation was, AB 54,

I ceased taking the Prothiaden because it made me extremely
drowsy on awaking in the morning and it also made my mouth
extremely dry.

23. A view that the taking of drugs should be avoided unless the overall benefit outweighs short and long term detriment is not necessarily unreasonable.

24. She had also refused "an avenue of pain management" suggested by Dr Corry. That involved a reference to Dr Lithgow, a specialist in pain management. Dr Lithgow had recommended counselling with a psychologist. However, that recommendation was not pressed. The respondent said that she was not comfortable with the suggestion but was comfortable with the treatment later offered by Dr Veness, a psychiatrist. That treatment involved psychotherapy but not drugs.

25. It also appeared that the respondent had knowledge of counselling having been a director of what was referred to as "a counselling clinic ... in the United States". She explained that counselling could be beneficial but also "very, very painful" (AB 60). It was for that reason she felt uncomfortable about the original suggestion of psychological counselling although she now felt comfortable with Dr Veness.

26. The Master was entitled to accept the respondent's answers as truthful and he clearly did. The answers given do not, on their face, lead to the conclusion that the respondent was acting unreasonably in declining the treatment she did. Additionally, there was no direct evidence that the treatment declined, if accepted, would have significantly alleviated the respondent's symptoms. It was, therefore, open to the Master to conclude, as he did, that the appellant had not persuaded him that any refusal of treatment by the respondent had any significant effect on the damages to be awarded.

27. In our view, no grounds for disturbing the award have been established. The appeal should be dismissed with costs.