Woolworths Ltd v Arnold [2005] NSWCA 21 (25 February 2005)

CITATION: Woolworths Ltd v Arnold [2005] NSWCA 21

FILE NUMBER(S):

40193/2004

HEARING DATE(S): 15/02/2005

JUDGMENT DATE: 25/02/2005

PARTIES:

Woolworths Ltd

Tracey Arnold

JUDGMENT OF: Hodgson JA Brownie AJA Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 340/2001

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

COUNSEL:

M Bozic SC Claimant

P Webb QC / N Canosa Opponent

SOLICITORS:

Herbert Geer & Rundle Claimant

Philip Lewis Opponent

CATCHWORDS:

Claim for damages following fall in defendant's supermarket on chicken fluids on floor - whether plaintiff guilty of contributory negligence - whether damages excessive - disputed diagnosis of reflex sympathetic dystrophy developed as a complication of injuries to the plaintiff's ankle in the fall - judge's criticism of defendant's medical witness as being "more into polemics than a desire to objectively reach the truth of the matter".

LEGISLATION CITED:

Motor Accidents Act 1988

DECISION:

1. Leave to appeal granted 2. Appeal dismissed 3. The claimant to pay the opponent's costs of the whole appeal 4. The claimant to file a formal Notice of Appeal within 28 days.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA40193/04

HODGSON JA

BROWNIE A-JA

HUNT A-JA

Friday, 25 February 2005

WOOLWORTHS LTD v ARNOLD

Judgment

1 HODGSON JA: I agree with Hunt A-JA.

2 BROWNIE A-JA: I agree with Hunt A-JA.

3 HUNT A-JA: Woolworths Ltd was the defendant in the District Court in an action brought by Tracey Arnold for damages which, she claimed, resulted from her slipping on the floor of the defendant’s supermarket at Shoalhaven on 10 March 2001. The defendant ultimately admitted lability for negligence, but alleged that the plaintiff was guilty of contributory negligence and continued to dispute the damages claimed.

4 The hearing took place before Judge J B Phelan over three days in August 2002 and February 2003. Judgment was not given until February 2004. The judge held that there had been no contributory negligence on the part of the plaintiff and that damages should be awarded to her in accordance with various assessments he made totalling $511,231.70, plus a sum for the plaintiff’s loss of superannuation benefits which was left to the parties to agree. (I refer at pars 62-63 to the error made by the judge when he stated the total to be $517,133.)

5 The defendant, as the claimant in this Court, has sought leave to appeal on the basis that the difference between the amount awarded and the amount which should have been awarded cannot confidently be assessed as being at least $100,000. The plaintiff, as the opponent in this Court, has opposed the grant of leave to appeal (notwithstanding that she originally submitted to the orders of the Court). The application for leave has been determined concurrently with the argument on the appeal itself.

6 The plaintiff gave evidence that, in the company of her two children, she purchased some chicken at the delicatessen counter in the defendant’s store and then saw some more chicken and bacon along the same counter. She was facing towards the place where these items were at the counter, she took one step forward to move up to them, and she slid on chicken fluids on the floor and fell. One of her children also slid but did not fall because she was holding the shopping trolley being pushed in front of the plaintiff and her children.

7 The chicken fluids, which were greasy, were near to the edge of the counter. The plaintiff had not seen this substance on the floor. There was marking on the substance to show where her shoe had slid through it. The substance on the floor was identified to her as oily chicken fluids by the defendant’s employee who had served her and who came to her assistance. The employee also told the plaintiff that she had reported the spillage earlier about four times but no-one had yet cleaned it up. The plaintiff said that the substance was spread over a distance of 70 cm to a metre.

8 The plaintiff said that, after she fell, she noticed for the first time a single yellow hazard sign warning “Caution – wet floor”. It was nowhere near the spillage. It was pushed in amongst some boxes near a display involving a motor vehicle, opposite the counter on the far side of the aisle or passage where the delicatessen counter was situated.

9 The store manager subsequently spoke to the plaintiff some time after she fell. According to her evidence, she told him that there was something slippery on the floor. He replied that someone had been called a dozen times to clean it up, and he apologised that no-one had done so. The plaintiff said that there was no mention of the hazard sign by the store manager in their conversation. In cross-examination, she agreed that a hazard sign means that something is wrong and that you should look around in that particular area. If she had seen the sign before she slipped, she said, she would have walked around it. She had denied in that conversation that there were two (or possibly three) hazard signs in the vicinity of the spillage.

10 A storeman who had since left his employment with the defendant gave evidence that such spillages on the floor occurred every time a pallet of chicken stock was brought into the store to be stacked in the freezer section in the storeroom. (The entrance to the storeroom is near the end of the delicatessen counter where the spillage in this case was located.) The chickens were packed in yellow tubs and left in pallets in the loading dock to thaw out. A build up of fluid in this process leaked out of holes in the tubs on to the floor of the store as the pallet was wheeled in. As a result, it was a common occurrence for there to be chicken fluids on the floor in the public area of the store. The pallets were normally wheeled into the store on Saturdays and Sundays. The plaintiff’s accident occurred on a Saturday.

11 The store manager gave evidence that, after he arrived at the scene of the plaintiff’s fall, he saw some three or four spots on the floor of drippings from chickens (each no more than a bit larger than a fifty cent piece) in an area he described as being “in front of the delicatessen counter”, and that these spots would have been over the area of a pallet (which he identified as being four feet long and four feet wide). He said that there were two signs there in the immediate vicinity of the spots, one at each end of the area of the spillage, because (he said) people normally walk along the length of the cabinet. He said that the system was that the signs are put in place before the pallets are removed. It was the duty of the delicatessen staff to put the hazard signs in place. He saw on his arrival at the scene that one of the hazard signs was a matter of only a few feet away from the skid marks on the spot where the plaintiff fell.

12 The manager also gave evidence of the conversation which he had with the plaintiff. His version was very different to that of the plaintiff. He said that the plaintiff admitted to him that she had seen that the floor was wet and that either one or both hazard signs were there but that, because she wanted to get to the counter, she had proceeded to walk through the area keeping an eye on the floor to avoid spillages when she unfortunately missed the one on which she slipped. A customer inquiry report was completed by him the same day, but he did not show it to the plaintiff or ask her to sign it.

13 In cross-examination, the store manager agreed that there had been a display involving a motor vehicle very close to the delicatessen counter on that day, and he offered the suggestion that one of the hazard signs may have been behind the vehicle. (This appears to suggest that such hazard sign was a long way from the spillage, rather than in its immediate vicinity.) The manager also conceded that there may also have been another hazard sign on the edge of the motor vehicle display, but he claimed that there were two signs in the vicinity of the spillage.

14 The two descriptions of the process of moving the chickens on a pallet and being brought into the store to be parked at the end of the delicatessen counter near the entrance to the storeroom, as given by the defendant’s store manager and the storeman, differed slightly in detail but the differences are immaterial for the purposes of this case. The store manager agreed that the pallets could stay parked inside the store (that is, at the end of the delicatessen counter) for up to half an hour or forty-five minutes, but he denied that the drippings from the thawing chickens he saw could have been more than the three or four spots each no more than the size of a fifty cent piece.

15 The defendant did not call as witnesses either its employees at the delicatessen counter whose duty it had been that day to put the hazard signs in place before the pallet was removed from where it had been parked, or those employees (such as the woman who had spoken to the plaintiff after the accident) who must have seen whether the hazard signs were or were not in place at the time when the plaintiff fell.

16 Liability for negligence was admitted following the store manager’s evidence. There remained disputed issues in relation to contributory negligence as to (i) the amount of chicken fluid there was on the floor; (ii) whether there were any hazard signs in place in the vicinity of this particular spill at the time when the plaintiff fell; (iii) whether the plaintiff saw such a sign or signs before she took the step forward; and (iv) whether the plaintiff was guilty of contributory negligence.

17 The defendant has challenged the judge’s finding of no contributory negligence on the basis that he adopted an erroneous process of reasoning. It has submitted that the judge reached that decision merely by inferring that the plaintiff had a reasonable excuse for not observing the hazard signs and then making a finding that:

...in those circumstances the defendant, having the onus of proof, I am not satisfied that it has been discharged and I accept the plaintiff’s evidence.

18 This challenge misstates the approach taken by the judge in relation to these issues by taking the quoted passage out of its proper context, and it ignores the process of reasoning which the judge did in fact adopt. He first determined the issues of fact relevant to contributory negligence. He said that there was a clear conflict between the plaintiff and the defendant’s store manager. He expressed a favourable view of the testimony of each of them (apparently referring to their demeanour). Notwithstanding this apparent reference to the witnesses’ demeanour, however, the judge did not decide the factual issues by expressing any preference for the evidence of the plaintiff over that of the defendant’s manager by reference to demeanour. Instead, he proceeded to determine the disputed factual issues on the basis that the defendant’s failure to call its employees who could have given direct evidence in relation to at least two of those issues entitled him more readily to accept the plaintiff’s evidence on those issues as to whether the scene had changed before the manager arrived. As the defendant bore the onus of proof in relation to contributory negligence, the judge was entitled to do so: Jones v Dunkel (1959) 10 CLR 298 at 308, 312, 320-321. There was no error in the process of reasoning which the judge adopted.

19 (i) As to the amount of chicken fluid on the floor, the judge pointed out that the manager’s evidence of there being only three or four drops the size of fifty cent pieces was contradicted by the evidence of the plaintiff. There was undisputed evidence from the plaintiff that, before the manager arrived, the person who had served the plaintiff and who had gone to her assistance had asked one of the boys behind the counter to wipe up the spillage, and that this had been done before the manager was called to the scene. The unexplained failure by the defendant to call any of those who were present at the time (particularly the woman who had served the plaintiff and who came to the plaintiff’s aid) enabled the judge more readily to accept the plaintiff’s evidence on this issue as to amount of liquid on the floor before the manager arrived on the scene. The defendant has shown no basis on which this finding of fact should be reversed.

20 (ii) As to whether there were any hazard signs in place in the vicinity of this particular spill at the time when the plaintiff fell, a specific issue was very clearly raised during the cross-examination of the defendant’s store manager as to whether the delicatessen staff whose duty it was to put the hazard signs in place before the pallet was removed had in fact carried out that duty before the plaintiff’s accident. In the light of:

(a) the plaintiff’s direct denial that she saw any hazard signs in the vicinity of this particular spill before she fell,

(b) her evidence that she saw one such sign after her fall but it was pushed in amongst some boxes near a display involving a motor vehicle and was nowhere near the spillage, and

(c) the store manager’s concession that there may indeed have been a sign near that display,

the failure of the defendant to call the employees at the delicatessen — as the only other witnesses who could have given direct evidence as to whether the hazard signs were indeed in place before the accident — again entitled the judge more readily to accept the inference from the plaintiff’s evidence that they were not in place.

21 Significantly, the passage in the judgment to which exception has been taken (quoted in par 15) commences with the words “The person who placed the marker(s) there was not called and ...”. The Jones v Dunkel inference was thus clearly drawn in relation to, inter alia, the issue as to the presence of the hazard sign or signs in the vicinity of the spillage at the time the plaintiff stepped forward. Although the judge did not make any express finding that the hazard signs were not present, he did so by necessary implication. The defendant’s challenge to such a finding, based on the judge’s acceptance of the plaintiff’s evidence on this issue, has not been successful.

22 (iii) As to whether the plaintiff saw such a sign or signs before she took the step forward, her denial was more readily accepted by the judge once more because of the failure of the defendant to call its own employees who could have given direct evidence that the signs were there. If there had been a sign within a matter of feet from the spillage, as the store manager claimed, the plaintiff should clearly have seen it. The existence of such a sign in that position was vital to the defendant’s case on contributory negligence. The defendant carried the onus of proof on that issue. Once more, the defendant’s challenge to this finding has been unsuccessful.

23 (iv) The defendant’s case on contributory negligence was that the plaintiff was careless of her own safety in that:

(a) she should have looked at the floor and seen the spillage on the floor even without the hazard signs, or

(b) she should have seen the hazard signs, or

(c) by reason of the hazard sign or signs in the vicinity of the spillage she was aware that there was something on the floor and of the need to take care for her own safety, but she nevertheless went ahead and walked through the area where she knew that she was at risk.

24 The first basis is that, even without the signs, the plaintiff should have looked at the floor before she walked forward along the counter when she would have seen the spillage on the floor. Given that:

(i) the very purpose of displaying food in counters in a delicatessen is to attract the customer’s attention to the goods displayed,

(ii) the plaintiff was intending to walk alongside the counter, rather than in the open space away from the counter, to reach those displayed goods, and

(iii) the shopping trolley was (as is usual) being pushed in front of her,

it is hardly surprising that the plaintiff did not see the spillage on the floor. No contributory negligence is demonstrated by her failure to do so in such a situation.

25 The second basis is that the plaintiff was careless of her own safety by failing to notice the hazard signs. This necessarily depends on the hazard signs being present before the plaintiff took her step forward. As already pointed out, the judge was entitled to find that they were not there, as by necessary implication he did find. This basis must inevitably have failed.

26 The third basis is that the plaintiff, being aware of the spillage because of the hazard sign or signs, nevertheless went ahead and walked through the area where she knew that she was at risk. It depends on both the existence of the hazard signs and an acceptance of the store manager’s evidence of his conversation with the plaintiff, a version which she denied. The judge accepted the plaintiff’s evidence. This finding did not depend on the failure of the defendant to call evidence from its other employees, as they had not been shown to have heard what was said by them in that conversation. The judge was nevertheless entitled to take into account the fact that he had not accepted the store manager’s evidence on the other disputed matters in determining whether the defendant had persuaded him that the manager’s evidence should be accepted on this issue. Once the finding of fact is made that the plaintiff had not made the alleged admission, together with the judge’s acceptance of the plaintiff’s evidence that she saw no hazard signs or the chicken liquid on the floor, this third basis of the defendant’s case on contributory negligence must also inevitably have failed.

27 Based on those factual findings by the judge, it was open to the judge to reject the defendant’s case on contributory negligence. I am not persuaded that the judge’s rejection of the onus-carrying party’s case on this issue was erroneous.

28 The issue of damages was dependent on an acceptance of the plaintiff’s complaints of pain and disability and of the medical evidence that these symptoms resulted from the injuries which she suffered in her fall. The medical evidence in the plaintiff’s case was that she suffers from a complication of the ligamentous trauma to her right ankle and foot sustained during her fall. This is a form of neuropathic pain related to a disturbance or dysfunction in the nervous system. It is known as reflex sympathetic dystrophy, or regional pain syndrome, and it is a process which develops over some months. This diagnosis was disputed by the medical evidence in the defendant’s case. I will outline the judge’s resolution of that dispute after referring to the plaintiff’s evidence.

29 The judge said that he accepted the plaintiff as a truthful witness, along with her husband, particularly as to the physical, psychological and practical effects which the injury has had on her. There has been no challenge to the judge’s acceptance of their evidence.

30 The plaintiff’s evidence was that she thought at first that she had only sprained her foot. However, it soon became very swollen and she was in a lot of pain, to such an extent that she was unable to drive home from the shops. She was taken to hospital where her foot was x-rayed and bandaged. She had to use crutches to walk. Anti-inflammatory medication caused a bad reaction of migraines and vomiting. Various investigations were undertaken, including ultrasound and bone scans. A plaster cast was applied, but there was no improvement. The cast was removed after a few weeks and physiotherapy administered but to no avail. She was certified unfit for work. In addition to the swelling in her foot, the plaintiff started to experience burning pain. She had a restriction of movement, and could not stand on her toes or apply force to her foot. The burning sensation kept returning. A steroid injection guided by ultrasound only aggravated the problems she has with her foot.

31 The plaintiff became emotionally distressed because, having been told it was only a sprain, she was not getting any better. The burning sensation was very bad. She was unable to do anything around the house, and her inability to work was hurting the family financially. She was unable to take the children to and from school. Both she and her husband were stressed, and he was forced to do a lot of overtime to try to make ends meet. The plaintiff could not sleep, the burning sensation was “just unbelievable”, and she could not obtain relief from it. When the pain was not there, she had a dull aching in her leg. When her employer had to let her go, the plaintiff was upset.

32 After a time, the plaintiff said, the pain in her ankle started to shoot up to her thigh without warning, she would lose her balance and, when this happened on the very steep stairs in her home, the plaintiff would fall. Medication for the pain either brought no relief or produced a bad reaction.

33 The plaintiff was referred to Dr Murray, a rehabilitation specialist with the Illawarra Health Service, for pain management. On one occasion Dr Murray attempted unsuccessfully to perform an intravenous guanethidine block, the purpose of which is to chemically deaden the relevant nerves, but the swelling in the plaintiff’s foot and her reaction to the pain prevented him from doing so. Thereafter, her foot became worse. The skin was so sensitive that Dr Murray decided it would be better for her to receive a lumbar sympathetic block. This was done, but it had no beneficial effect. She underwent further physiotherapy for quite a while with some improvement, but she discontinued the treatment because it was aggravating the pain in her foot.

34 The skin on the plaintiff’s foot meanwhile had discoloured, red, blue, purple and black. This discolouration has continued, although it does come and go, sometimes being apparent for short periods only.

35 The plaintiff was still in a very emotional state at the time of the trial, which concluded almost two years after he accident. She was distressed by her inability to do the things she used to do, either at all or as well as she used to do them. She had led a very active life, but could no longer ride bikes or rollerblade with the family. Her young children did not understand her problems, despite her attempts to explain to them why she was disabled. She could not stand for long enough to wash the dishes because of the pain. She had lost the motivation to do anything, although she continued to try to do things which she had been able to do before. She still tried to walk, but it caused her a lot of pain. She was able to stand for twenty to thirty minutes at a time at such things as the children’s sporting events.

36 The plaintiff said that she had come to accept a pretty high level of pain in her leg. She did not have a day without some spontaneous burning aching in the leg. This had become normal. If she stood still in one spot for too long the pain was aggravated, but it was not necessary for her to be doing anything for the pain to appear. It appeared whether she was sitting or lying down, and whether her foot was on the floor or elevated.

37 At night, the plaintiff sleeps better if she has a fan very close to her foot. At times, she feels as if she is standing in an incinerator her foot feels so hot.

38 The plaintiff was frightened by the pain coming on spontaneously, and of the likelihood of her falling when this happened. She was scared to be too close to anyone in case they accidentally knocked her foot, as this caused excruciating pain. For quite some time this fear prevented her from leaving the house. She was unable to wear any sort of “dressy” shoes. She lost interest in make-up and in her hair. She put on about fifteen kilograms, increasing her size from a low 12 to size 16 and still increasing. Her clothes no longer fit her, and she is ashamed of her appearance.

39 The plaintiff was still able to drive a car at the time of the trial, but driving caused pain in her foot and ankle, and on some days the pain was so bad that she could not drive, which meant that she had to organise others to take the children to and from school. She had started to let the children walk to school on some days. Because she had difficulty in sleeping, the plaintiff felt that she was sometimes too tired to drive the car.

40 The plaintiff was unable to do all of the housework which was necessary. She had previously done it all herself. Her husband was helping her by doing a lot of it for her. She found it difficult to clean the deep corner tub in the bathroom. Her husband sometimes put the washing out on the clothes-line for her. He also does some cooking. He spends a few hours a week helping her in this way.

41 The plaintiff was normally able to do the shopping, but with pain. Sometimes she had to abandon the task because of pain.

42 She was unable to carry out the work she did before the accident, which was in the linen room of the local hospital, collecting the linen from all the different areas, packing it in trolleys, working the washing and drying machines, and sorting the linen. The linen bags she had to handle were taller than she was, and she had trouble pushing them even before her injury. This was a job which had to be done standing up. She was unable to stand in a spot for too long, and the bending involved in operating the machines would aggravate her ankle.

43 The plaintiff said that she had not felt able to do any work up to the time of the trial. She said that she was unable to perform sedentary tasks because, even when sitting, she suffered the same sudden pain and needed to move around to relieve it. She had been able to do some babysitting for family members on an irregular basis. At one stage she looked after her sister’s children for a week to save them from being put into foster care, but she had help in doing so from her husband and her father.

44 The plaintiff’s plan for the future was to undertake a course in counselling with palliative care. She will need to obtain a Higher School Certificate first, as she left school at the age of sixteen. This plan had been put on hold until the plaintiff feels that she will be able to carry it out. It remained on hold at the time of the trial.

45 She had not worked for some time after her first child was born, and had obtained part-time employment in the linen room of the hospital and elsewhere after the children started at school. The trial proceeded on the basis that she would have taken up full-time employment when the children had left school.

46 As stated earlier, the trial judge accepted the plaintiff’s evidence on all these matters, and this acceptance by the judge has not been challenged on the appeal. The next issue is whether the medical evidence supported the plaintiff’s complaints as having resulted from her fall. The judge accepted that the plaintiff was suffering from reflex sympathetic dystrophy as a complication of the trauma to her right ankle and foot sustained during her fall. In doing so, he preferred the medical evidence in the plaintiff’s case to that in the evidence in the defendant’s case. This finding is challenged by the defendant. Without that finding in the plaintiff’s favour, the amount awarded as damages could not be justified.

47 Many doctors examined the plaintiff. Most of them were merely qualified by either the plaintiff or, more particularly, the defendant in order to give evidence by conducting a single examination of the plaintiff. The two principal doctors on whom the plaintiff relied were Dr Murray, the rehabilitation specialist with the Illawarra Health Service already referred to, and Dr Khor of the Pain Management Clinic at the Prince of Wales Hospital. Both were the plaintiff’s treating doctors, and each saw the plaintiff on numerous occasions. The principal doctor on whom the defendant relied was Dr Nash, a retired specialist vascular surgeon who now examines people on medico-legal referrals.

48 In his reasons for judgment, the judge placed some emphasis upon the fact that the plaintiff’s treating doctors had had a far greater opportunity of observing the plaintiff and over a greater period of time than the defendant’s doctors. That is an often adopted and sensible approach to a dispute in medical evidence in these cases. Dr Nash had seen the plaintiff on only one occasion, for between half an hour and one hour.

49 The defendant complains that the judge’s preference for the plaintiff’s medical evidence was based partly on a misinterpretation of the evidence of Dr Nash, or alternatively partly on his evidence being taken out of context. In its submissions, the defendant added that the misinterpretation was of the doctor’s demeanour, but an examination of the cross-examination of Dr Nash demonstrates that what the judge perceived was not the doctor’s demeanour but rather a resolute refusal by the doctor, which is apparent from a mere reading of the transcript, to concede even the most obvious and inevitable answer to a question which favoured the plaintiff’s case, thus demonstrating (it could be suggested) a less than open mind in his diagnosis favouring the defendant.

50 The defendant’s argument, based this Court’s decision in Hadid v Redpath [2001] NSWCA 416 as to the effect of delay in giving judgment upon the adequacy of the reasons expressed in the judgment, is of less cogency when the reasons for the judge’s decision on the principal issues on damages are apparent from the transcript itself. In this case, there was an unexplained delay of twelve months in giving judgment.

51 Dr Nash gave evidence that, after making a careful examination of the plaintiff, his opinion was that, although she satisfied some of the criteria for reflex sympathetic dystrophy, the symptoms present during that examination did not satisfy the existence of sufficient of those criteria to make the diagnosis. He thought that the plaintiff’s correct diagnosis remained obscure, but he concluded on the basis of his experience that most of those symptoms do eventually settle down, although it may take several years. In the course of his cross-examination, Dr Nash said that symptoms of reflex sympathetic dystrophy are usually fairly constant, and that if those symptoms come and go then there is no reflex sympathetic dystrophy as the symptoms are unlikely to change significantly. This particular medical opinion of Dr Nash was completely opposed to that expressed in the plaintiff’s medical evidence, which allowed an episodic appearance of some symptoms, and it was thus the main point of contention between the parties on the medical issues.

52 In cross-examination, Dr Nash made it clear that, notwithstanding the plaintiff’s history of the relevant symptoms, his diagnosis was made on the basis of his own objective findings on the day of his examination — not disregarding the history, but taking into account what he saw himself. In their context, the doctor was in those answers adhering to his view that there is no reflex sympathetic dystrophy if the symptoms come and go, a view which he repeated from time to time. Dr Nash commented later that a history recorded by a treating doctor may be relevant (at least to the treating doctor), but it may not be correct. In any event, he was not aware of Dr Murray’s report at the time of his one examination.

53 The cross-examination proceeded along predictable lines, taking Dr Nash to each of the relevant criteria for reflex sympathetic dystrophy and his findings in relation to whether the plaintiff’s symptoms he saw on the day of his examination included sufficient of the criteria for a diagnosis of reflex sympathetic dystrophy to be made.

54 Dr Nash agreed that the pain does not have to be present at all times but he said that, if the plaintiff had been suffering from reflex sympathetic dystrophy, he would have expected to see, but did not see, changes in colour and texture of her skin and, as a rule, excess sweating in the relevant area. If a sufferer of reflex sympathetic dystrophy did have excessive sweating, he said, it is generally there all the time. The changes in colour are fairly constant. There was then some debate about what were the relevant causes of and criteria for reflex sympathetic dystrophy. Dr Nash at first denied that the immobilisation of the plaintiff’s foot for a period shortly after her accident could have led to the development of reflex sympathetic dystrophy; and then, when shown a recognised text on the subject, he conceded that it was “possible” that this was a cause. He accepted that the plaintiff’s symptoms of pain, changes in the colour and texture of her skin and feelings of heat and cold identified by Dr Murray could be due to reflex sympathetic dystrophy, but he pointed out that, apart from pain, those symptoms were not present when he examined her. He said that it was not the “usual” course for those symptoms to be episodic. After being shown the recognised text again, Dr Nash accepted that symptoms may “vary” at different times. He repeated that such symptoms may be caused by many conditions, but they do not necessarily indicate reflex sympathetic dystrophy.

55 Dr Nash would not agree that a diagnosis of reflex sympathetic dystrophy could not be rejected on the basis of just the one examination. He thought that it may be better medicine to manage a patient over time so as to be able to confirm a provisional diagnosis, but only if you had difficulty in making up your mind. The plaintiff did not have reflex sympathetic dystrophy when he examined her, and he thought that it was unlikely that she had it when examined by Dr Murray because reflex sympathetic dystrophy “doesn’t resolve that quickly over a matter of weeks or months”. There followed the question and answer which is relevant to the defendant’s complaint in this appeal:

Q. But doctor, if you accept that some of these symptoms are episodic you would have to accept that there may be times when a doctor who regularly sees her would see symptoms that you don’t see?

A. No, I’m afraid I can’t accept that.

This point was not taken up by defendant’s counsel in re-examination.

56 The judge, when recording Dr Nash’s evidence in his reasons for judgment and after referring to his concession that the plaintiff’s symptoms could be due to reflex sympathetic dystrophy, quoted this particular question and answer and commented:

It was at this stage that I concluded that Dr Nash’s opinion was more into polemics than a desire to objectively reach the truth of the matter. I thus did not find his evidence persuasive.

By “polemics”, I have understood the judge to be referring to the doctor being disputatious in his answers in order merely to defend his own views.

57 The defendant submits that Dr Nash was merely referring in his answer to his previous answer, that it was unlikely that the plaintiff was suffering from reflex sympathetic dystrophy when she was examined by Dr Murray “because it doesn’t resolve that quickly over a matter of weeks or months”. I do not accept that submission. There is a world of difference between symptoms which are “episodic” and those which “resolve” over a period of time.

58 The doctor had earlier conceded that at least pain could be an episodic symptom yet the patient would still be suffering from reflex sympathetic dystrophy, that other symptoms may “vary” at different times, and that the constant appearance of symptoms was no more than the “usual” rule. It may be that counsel’s reference to “some of these symptoms” being episodic could have been challenged by the doctor if he had wished to be pedantic, but his answer to the question was clearly interpreted by counsel at the time as being a refusal to accept the possibility that the treating doctor may see episodic symptoms which he did not see. That is shown by his next question “Are you rejecting the possibility that Dr Murray might have seen her at a time when she had all the relevant symptoms?”, to which the doctor replied, somewhat unresponsively, “I don’t know what Dr Murray did”. The judge’s comment of which complaint is now made also reflects that that is how he interpreted the doctor’s response. It was an extraordinary answer to the question, which demonstrated just how reluctant the witness was to concede even the most obvious and inevitable answer when it was favourable to the plaintiff (and not even decisively so).

59 In my opinion, it was well open to the judge to accept the evidence of the plaintiff’s doctors that she was suffering from reflex sympathetic dystrophy in preference to the evidence of the defendant’s doctors that she was not. His reaction to Dr Nash’s evidence is borne out by a reading of the whole cross-examination. I reject the defendant’s argument that the judge erred.

60 The plaintiff’s medical evidence established that her physical condition had been made worse by a depression (caused by her pain and significant disabilities), which in turn increased her pain and disabilities. Various medications for the depression were attempted, but the plaintiff has been unable to tolerate the adverse side-effects she has suffered from the medications.

61 The plaintiff’s doctors also said that she will continue to experience on-going pain of moderate intensity with periodic severe exacerbation. It was said that most patients who do recover from reflex sympathetic dystrophy usually do so within the first two years. The plaintiff had reached that point by the conclusion of the trial, and she had actually been examined by one of her treating doctors before he gave evidence on that last day. There had been no recovery. He said that the persistence of symptoms at that time heralded a more intractable stage. The only further treatment which was suggested was the possible use of an epidural stimulator, but this would be as a last resort. According to the plaintiff’s medical evidence, an injection of anaesthetic may produce short-term elimination of her pain, but not always.

62 The plaintiff’s doctors said that there were domestic and parenting duties which the plaintiff would be unable to perform because of the pain. She could undertake sedentary duties which did not involve walking, but fatigue from poor sleep and the demands upon her energy in managing pain would greatly limit her capacity to work sufficient hours to gain (or to retain) employment.

63 The judge made the following calculations and assessments:

Past out-of-pocket expenses $ 5,173.00

Past wage loss 45,225.00

Interest on wage loss 655.70

Past domestic care 7,200.00

Future out-of-pocket expenses 35,335.00

Future wage loss 233,707.00

Future domestic care 56,536.00

General damages 125,000.00

Interest on general damages 2,400.00

64 These sums totalled $511,231.70. The judge said that they totalled $517,133, but that addition was not correct. To that amount a figure for loss of superannuation had to be added after it had been agreed between the parties. What the final figure was is not apparent from the material put before this Court. The defendant suggested in its application for leave to appeal that the total was $546,091.35, which added $28,957.72 for superannuation, but this figure also included, erroneously, an amount of $6,557.63 as interest on the past wage loss when the sum awarded was only $655.70.

65 It is unnecessary to unravel the confusion in these calculations in the present appeal, as there are only two of the assessments made by the judge which are now challenged by the defendant — the future wage loss ($233,707.00) and the general damages ($125,000.00). The appeal may be allowed or dismissed by referring only to these two disputes.

66 The judge approached the plaintiff’s future wage loss on the basis that the wage which she would have been paid had she been working full-time at her previous job at the time of the trial was $410 nett per week. The plaintiff would, the judge thought, have returned to full-time employment when the children were older.

67 It was clear from the evidence which the judge accepted that, whatever the plaintiff’s capacity was to do particular types of work, there was a very real risk that she would face substantial difficulties in obtaining and retaining any sustained employment because of the prospect that there will be regular periods when her pain will be severely exacerbated and she will be unable to work during those periods. The judge said that there remained a possibility that she would never return to work, although he thought that the plaintiff had a positive outlook and had expressed the desire to obtain work within her physical capacity. He did, however, believe that there was “some significant doubt” as to whether she would achieve that desire in the light of her symptoms. All these findings were open to the judge.

68 The parties were agreed at the trial that, rather than attempt to formulate the periods when the plaintiff would obtain employment and what she would be paid, the judge should assess a weekly sum to award as a buffer, or cushion, for the rest of her working life, taking into account the usual contingencies as well as the likelihood of sustained unemployment. This is a common approach in cases such as the present, and it is a very sensible one. It was suggested on behalf of the plaintiff that an appropriate buffer would be $250 per week. The defendant suggested $100 per week. The judge accepted the figure suggested by the plaintiff. To have done so does not mean, as has been submitted on the appeal, that the judge had assessed the plaintiff as being physically capable of earning only $160 per week ($410 less $250). It means that, having regard to the serious problems which the plaintiff faces in being employed in any sustained way, that is an assessment of her average loss per week over the period of her working life.

69 The judge accepted that the plaintiff would continue working until she was sixty-five years old. Against such a probability must be placed the availability of her old-age pension at (so we were informed) the age of sixty. The evidence would certainly support a finding that the plaintiff would have continued in employment until the age of sixty, although perhaps not in the type of employment she had before her accident with the relatively heavy work involved. On the other hand, if the plaintiff had not been injured and had wanted to keep working, the evidence leaves it open that she would have found other, less heavy, work to do during the course of her life, and to do so until the age of sixty-five. Minds may well differ on this issue, but it was certainly open to the judge to accept the likelihood of the plaintiff doing so — having had the benefit, which this Court has not had, of seeing the plaintiff give evidence and being able to take into account the favourable impression she made on the judge.

70 I am not persuaded that error has been demonstrated in the assessment of the plaintiff’s future wage loss.

71 The general damages of $125,000 which were awarded are substantial. The defendant has submitted that no more than $85,000 to $90,000 would be appropriate. Attention was drawn to the judge’s description of general damages as “non-economic loss”, a term which now has a specific meaning in the Motor Accidents Act 1988, at ss 79 et seq, but I do not see that the judge was doing any more than adopting the term often used for general damages before the Motor Accidents Act commenced.

72 It is very realistically conceded by the defendant that, on the medical evidence, the plaintiff will never be pain-free, and that the accident clearly had a profound and significant impact on her. She was thirty-two years old at the time of the trial, and she faces a very long time ahead of her with a very substantial loss of the usual amenities of life and with ongoing pain of moderate intensity with periodic severe exacerbation.

73 The plaintiff is just entering into that stage of life when the children are becoming more self-sufficient, when if she had not been injured she would have become free to spend more time with her husband in the sporting pursuits they had enjoyed together with the family. She will now have difficulty in doing very much with the children as they grow into young adults. All of these things will feed the depression caused by her pain and significant disabilities and which makes the pain and those disabilities worse. The figure which the judge awarded was, in my own view, very high, but I am not persuaded that it was not open to him to award $125,000.

74 In my view the appeal against the damages awarded must fail.

75 The only matter before the Court at this stage is the application for leave to appeal, although the appeal itself has been argued. The argument in relation to contributory negligence would, if it had been successful, have warranted a substantial reduction of the damages awarded, and thus the amount in issue in the appeal is easily assessed as exceeding the sum of $100,000.

76 Accordingly, I propose that leave to appeal be granted but the appeal be dismissed, and that the defendant be ordered (1) to pay the plaintiff’s costs of the whole appeal, and (2) to file a formal Notice of Appeal within 28 days.

ORDERS:

1 Leave to appeal granted.

2 Appeal dismissed.

3 The claimant to pay the opponent’s costs of the whole appeal.

4 The claimant to file a formal Notice of Appeal within 28 days.

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LAST UPDATED: 25/02/2005