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  • Unreported Judgment

Sidney Robert Bishop v Noel William Brandt

 

[1976] FC 60

IN THE SUPREME COURT OF QUEENSLAND

No. 593 of 1973

BETWEEN:

SIDNEY ROBERT BISHOP

(Plaintiff) Appellant

AND:

NOEL WILLIAM BRANDT

(Defendant)

AND:

CLUB MOTOR INSURANCE AGENCY PTY. LTD.

(Defendant by Election) Respondent

_____________________

Wanstall S.P.J.

Douglas J.

Matthews J.

_____________________

Judgment delivered by Douglas J. on the 7th December, 1976, Wanstall S.P.J. and Matthews J. concurring with these reasons.

_____________________

“APPEAL ALLOWED WITH COSTS. SET ASIDE THE AMOUNT STATED IN THE JUDGMENT AS TO THE AMOUNT THEREOF AND TO SUBSTITUTE FOR TILE AMOUNT OF $17,000 THE AMOUNT OF $28,688.97.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

No. 593 of 1973.

BETWEEN:

SIDNEY ROBERT BISHOP

(Plaintiff) Appellant

AND:

NOEL WILLIAM BRANDT

(Defendant)

AND:

CLUB MOTOR INSURANCE AGENCY PTY. LTD.

(Defendant by Election) Respondent

- JUDGMENT - DOUGLAS J. -

This is an appeal by a plaintiff against an award of damages for injuries suffered by him as a result of a motor vehicle accident on the ground that the award was manifestly inadequate, and on other grounds related to that ground.

The appellant was injured on 17th May 1968. He was born on 5 December 1912.

At the time of the trial the appellant had two significant areas of disability to his spine, with resulting disabilities to other areas of his body. These areas were in the lumbar and cervical regions respectively. The learned trial judged found that when injured the appellant “had spondylosis and significant arthritic degeneration of the spine, conditions which had not then presented any symptoms of pain or discomfort.” He went on to find, “that he suffered a whiplash injury to the cervical spine which caused the immediate onset of such symptoms.” As to the second area of disabilit he said “The condition of his lumbar spine which caused weakness and some disturbance of sensation in his legs, is called arachnoiditis. He has discomfort, pain and disability stemming from his lumbar spine which could have been triggered off by trauma. Arachnoiditis may have a number of causes, but on the evidence before me, I find that it origin was traumatic. There is no history of trauma occurring on other than 17th May, 1968.”

Having discussed the medical evidence which contained opposed theories as to the cause of the appellant's disabilities the learned trial judge said:—

“On all the material before me, I am left with the persuasion that probably, the plaintiff's distressing symptoms spring from injuries sustained by him in the accident.”

Earlier in his judgment referring to the sources of disability he had said:—

“In combination they render him unemployable. Considered separately, each would have made it difficult for him to obtain regular employment but for a time not, I think, impossible, although he has some time ago reached a stage where the condition of his cervical spine would make him, in any practical sense, unemployable.”

Having made his findings as to the cause of the injuries the learned trial judge went on to make these findings:—

“I find that his condition will not improve. He walks with difficulty and wears a brace and felt collar. Emotional overlay to some extent worsens his reaction to his condition but not to any marked degree. Possibly he has come to depend unduly on the collar but that is the kind of man he is.

He has had surgery on a number of occasions which has helped in that without such treatment he would be in a worse state.

He has had a miserable time since the accident and will continue to do so. He is no longer able to drive a car and is uncomfortable riding in one.

He has some nocturnal bladder incontinence but I am not convinced as to how it could have been caused by the accident. He has had years of pain. His back does not cause as much pain as his neck. The neck aches constantly but mostly at a tolerable level.

He was a regular keen fisherman but can no longer enjoy such recreation. His pleasures now are restricted to playing records, watching television and reading. He is very restricted as to physical activities.

Had he remained with his employer as at the time of the accident he may have earned something in excess of $20,000.00 or so net to the present time and may as well have continued in employment for another year or so. I find that except very briefly, he has not been able to work since the accident.

However, I am left with such a view of his spinal degeneration that I find he was at considerable risk of pain and disability by trauma had the accident of 17th May, 1968 not occurred and I think the discounting factors in this case as to impairment of his capacities to earn a living and to enjoy life are very significant. There are other contingencies as well to be regarded.

I assess damages in the sum of $17,000.00”.

For the appellant it is argued that on the findings made the award of damages obviously is much too low, and that in any event too great a discounting factor has been adopted to allow for contingencies relevant to a likely diminution in or cesser of the appellant's earning capacity.

For some reason the action came to trial long after the accident. The result is that the appellant has lived until within a relatively short span of the time at which normally he would retire. There is no evidence to say that his disabilities are likely to shorten his life. Exhibit (1) indicates that had the appellant, who had a steady record as an employee, remained in the employment he was in at the time of his accident from that time until 1 June 1976 his net earnings would have been some $23,144.00. It is argued, not unreasonably, by counsel for the appellant, that had the appellant worked until near the end of his sixty-sixth year as his employer would have allowed, this figure would be increased to something like $30,000.00. It is then said that, even if one does not make any allowance for the other heads of general damages, there is a discounting of $17,000.00, and that this is far too much.

There is no doubt that the learned trial judge had the advantage over this court of seeing the appellant. However, it is obvious that, once His Honour had accepted that one of the competing medical theories as to the cause of the appellant's disabilities favourable to the appellant, he had to reject the medical evidence supporting the other. It is necessary now to turn to the accepted medical evidence to see what the evidence was on which the finding, that the appellant was at considerable risk of pain and disability by trauma had the accident not occurred, could be based. Referring to the arachnoiditis of the lumbar spine, in respect of which his theory was accepted Dr. Laister was asked the following question, and gave the following answer:—

“I want you to assume that this condition existed although it was symptomless. Had there been no accident in fact in May 1968, had that not occurred, what would have been the likely future or progression?-- I would have thought it would remain without symptoms, asymptomatic.”

As to the cervical spine the following is an extract from Dr. Merry's evidence:—

“BY HIS HONOUR: Assuming he was symptom-free up until the time of his accident, which was 1968, and of course, assuming that he had this spondylosis, he may have continued symptom-free assuming he had not had this accident?-- Yes, he could have. The radiology findings are not always compatible with the clinical study. For instance, someone could in fact have a severe extensive degenerate disease in the cervical spine and remain symptom-free, whereas another patient may have very small changes isolated to one level only and have very severe neck pain and arm pain.

Is it a condition once established which is likely to be stirred up by relatively minor injury?-- Yes.

Even stresses and strains? Yes.

So, one could say that he had a - his future comfort was finely balanced?-- Yes.

BY MR. CARTER: Is that more probably than not he would have had some sort of symptoms? Not necessarily.

I know not necessarily ----

MR. CALLINAN: He did not finish.

BY MR. CARTER: Sorry, doctor? I. was going to say not necessarily, because, as I have mentioned, there could be extensive disease which is not commensurate with the clinical study. In fact, a high percentage of cervical spines over 35 have some form of degeneration.

Yes, but when you have that degree of degeneration?-- Yes.

Is it not more likely there would have been signs?-- It is more likely.

And, of course, as you said, even some slight trauma can provoke symptoms? Yes.”

On the above evidence there is no doubt that the appellant was at risk. But against this was the fact that he had been free of trouble up until the time of his accident. There is no reason shown in the evidence for the obviously large discounting factor used.

Whichever way one looks at it the award of damages seems demonstrably low. I think a reasonable assessment of general damages in the circumstances and having regard to the conservative assessment by the learned trial judge would be $28,000.00.

There is an amount of $688.97 agreed special damages which was inadvertently omitted from the judgment. This also must be added.

In my opinion the appeal should be allowed, the judgment set aside to the extent of the amount thereof, and an amount of $28,688.97 substituted for the amount of $17,000.00 therein.

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Editorial Notes

  • Published Case Name:

    Sidney Robert Bishop v Noel William Brandt

  • Shortened Case Name:

    Sidney Robert Bishop v Noel William Brandt

  • MNC:

    [1976] FC 60

  • Court:

    QSC

  • Judge(s):

    Wanstall SPJ, Douglas J, Matthews J

  • Date:

    07 Dec 1976

Litigation History

No Litigation History

Appeal Status

No Status