- Unreported Judgment
SUPREME COURT OF QUEENSLAND
DC No 79 of 2003
Court of Appeal
Application for Leave s 118 DCA (Civil)
General Civil Appeal
15 July 2005
17 June 2005
Williams and Jerrard JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1.Allow the application for extension of time in which to seek leave to appeal
2.Grant leave to appeal
3.Allow the appeal
4.Order the judgment amount of $39,850.35 be increased by $7,033 to $46,883.35
5.Order that the respondent pay the appellant’s costs to be assessed on the standard basis
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – CIRCUMSTANCES JUSTIFYING INTERFERENCE BY APPELLATE COURT – appellant claimed Griffiths v Kerkemeyer damages for past gratuitous child care services provided by neighbour – trial judge refused to grant Griffith v Kerkemeyer damages – appellant had given inconsistent details about provision of services – appellant’s evidence not challenged at trial – whether trial judge erred in not granting damages for the claimed child care services
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – MEDICAL AND HOSPITAL EXPENSES – appellant claimed damages for past physiotherapy expenses – trial judge found that the need for physiotherapy caused by the accident came to an end around the date of trial – trial judge awarded physiotherapy expenses for only the first 12 months after the accident – whether the trial judge erred in not allowing physiotherapy expenses until date of trial
Campbell v Jones & Anor  QCA 332;  1 Qd R 630, cited
Elford v FAI General Insurance Co Ltd  1 Qd R 258, cited
Griffiths v Kerkemeyer (1977) 139 CLR 161, cited
Van Gervan v Fenton (1992) 175 CLR 327, applied
J R Webb for the applicant/appellant
M T O’Sullivan for the respondents
Gall Standfield & Smith for the applicant/appellant
Phillips Fox for the respondents
 WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is little I can usefully add thereto.
 The learned trial judge did not refer at all in his reasons for judgment to the claim under the Griffiths v Kerkemeyer head with respect to services provided by the appellant's neighbour, Natalie Shallett. There were arguably grounds on which a trial judge could have rejected that claim, but this Court cannot assume that the learned trial judge directed his mind to the issue and rejected the claim. Particularly given the fact that counsel for the defence did not cross-examine with respect to that claim, but did so with respect to other aspects of a claim under the Griffiths v Kerkemeyer head, I am of the view that this Court should allow the claim with interest.
 Further, it does appear that November 2001 was a random cut off point for allowing the claim for physiotherapy expenses. The general reasoning of the learned trial judge would support a conclusion that such expenses ought to have been allowed up to the date of trial. Although the amount is relatively small I am of the view that the award under this head should be increased as suggested by Jerrard JA in his reasons.
 I agree with the orders proposed by Jerrard JA.
 JERRARD JA: In these proceedings, Donna Wallace applied for an extension of time within which to seek leave to appeal against a judgment of the District Court delivered on 27 January 2005, in which Ms Wallace was awarded $39,850.35 damages for personal injury arising out of a motor vehicle accident on 20 November 2000. Her application for leave was filed on 26 April 2005, and the proposed grounds of appeal complain of errors in calculating past Griffiths v Kerkemeyer damages, of errors in assessing that part of Ms Wallace's damages which consisted of future physiotherapy expenses, of an inadequate assessment of pre-trial economic loss at $10,000, of an error in making only a nominal provision of $5,000 for damages for lost earning capacity into the future, and of an error in assessing Ms Wallace's general damages in the sum of $20,000. Ms Wallace's notice of appeal was dated 4 March 2005; her solicitor had not then adverted to the need to apply for leave to appeal, necessary because the damages awarded were less than $50,000.
 Mr Webb, counsel for Ms Wallace, assisted the Court with written submissions supporting the grant of leave, and with further written submissions in support of the appeal. The written submissions supporting the grant of leave complained that the learned trial judge had found that gratuitous services, for which Griffiths v Kerkemeyer damages were sought, had not been provided to Ms Wallace until after 4 August 2002, at least 20 months after the accident in which she was injured when a passenger in a car which collided with a pole; whereas Mr Webb contended that Ms Wallace had given unchallenged evidence that services of that nature had been provided from the time of the accident for a period of 12 months thereafter, and then re-commenced on 4 August 2002. The relevant services provided immediately after the accident were those given by a neighbour, Natalie Shallett, who supervised Ms Wallace's two children at least twice a week for a total of about six hours for the next 12 months. Mr Webb submitted that that aspect of Ms Wallace's claim had not been assessed for damages, because of a mistaken understanding by the learned judge that no services had been supplied until well after those 12 months ended. Mr Webb also submitted that the learned judge had imposed a wrong test for entitlements to Griffiths v Kerkemeyer damages for gratuitous services; the judge had spoken of compensation for the provision of services that the plaintiff could not provide for herself, when the judge should have described services that the plaintiff reasonably required as a result of her injuries occasioned by the accident.
 Mr Webb also submitted that there was evidence that Ms Wallace could expect that she would suffer acute "flare-ups" of neck and high back pain in the future, which would cause her neck to be very stiff, and for which she would need treatment by physiotherapy. He submitted the judge erred both in not allowing sums for future physiotherapy expenses, and in not allowing additional sums for past and future services – such as help in cleaning a bath and with heavy housework – when those services had been, and would be, necessitated by the future "flare-ups". Regarding past economic loss, Mr Webb submitted that the one year allowed for overlooked, and gave insufficient weight to, the facts that Ms Wallace was 44, at an age where work opportunities would be restricted, and where the defendant accepted that she had a residual overall disability.
 Regarding diminution of future earning capacity, Mr Webb submitted that the nominal assessment awarded was out of line with the award in Campbell v Jones & Anor  QCA 332, where $30,000 had been awarded for impairment of earning capacity in the future, and in a case in which, on Mr Webb's submission, there had in fact been no economic loss sustained up to the date of trial other than for an initial two days. Mr Webb contended that the judgment revealed that the learned trial judge had looked for reasons to discount the plaintiff's claim for damages for lost earning opportunity.
 Regarding the general damages awarded, Mr Webb submitted that the learned trial judge had been too influenced by the defendant's intense focus in its case on Ms Wallace's post-accident involvement in gymnasium attendance and a gym program, whereas that program was appropriate for her rehabilitation and of a light nature. Overall, he submitted, the approach of the learned judge had resulted in a manifestly inadequate award on a number of heads.
 Mr Webb's written submissions supporting the appeal referred to the learned trial judge's acceptance of a Dr Steadman's opinion that the plaintiff had experienced a total five per cent whole person impairment, of which 50 per cent was attributable to her neck condition occasioned by the accident, and 50 per cent to a pre-existing condition from which she suffered. He submitted that the evidence was that that condition had restricted her capacity to obtain employment, and that her work history showed continuous work from 1971, when a child model, until her marriage; and that from the time of leaving her marriage in 1994 only limited work had been available for her prior to the accident, she having been caring for the rearing of the two children of the marriage.
 Those submissions advanced an apparently strong argument, but the argument and the grounds of appeal necessarily accept a good deal of the learned trial judge's findings on, and observations about, the evidence. Mr Webb argued in his oral submissions that the challenges to the quantum of the various heads of damage necessarily challenged some of the findings and remarks of the learned judge. He did not expressly identify which ones were challenged, and conceded that although another judge may have found otherwise, each finding and observation the learned judge made was open on the evidence (save as to the date from which Griffiths v Kerkemeyer damages were sought).
 The learned judge's findings included that (the relevant paragraphs in the reasons for judgment are in brackets):
● the plaintiff's claim was a "whiplash" case in which her complaint of soft tissue injury was not demonstrated by radiological evidence .
● the plaintiff declined the opportunity to avail herself of ambulance transport to a hospital or doctor immediately after the accident, and she did so because she believed at the time that she had not been hurt to the extent that she needed ambulance attention .
● to the extent that Ms Wallace had sought help, it had been from a physiotherapist, Julie Stewart, to whom she had paid at least 100 visits after the accident . The first "flare-up" of neck pain or stiffness was on 30 May 2001, following an attempt at bar work shifts .
● in 2003, physiotherapy attendances virtually ceased; there were five over 12 days in February (which could be counted as a "flare-up"), and only eight that year .
● there were more in 2004; seven between 18 February to 25 March 2004, and four from 18 November 2004, indicative of two "flare-ups" . By July 2001, the physiotherapist was trying to wean the plaintiff off physiotherapy .
● the plaintiff had returned to gymnasium attendances by 20 February 2001, and appeared then to have made a full recovery .
● the causes of the "flare-ups" were difficult to discern; attempts at work activity were responsible for only the first one, at the end of May 2001; work-type activity is not shown to be any more likely to trigger a "flare-up" than anything else, such as Ms Wallace's daughter falling against her neck in the course of play .
● the plaintiff's evidence, that she made reasonable attempts to obtain productive employment or utilise her earning capacity, could not be accepted .
● the physiotherapist had urged the plaintiff more than once to attend medical practitioners for assistance, but the plaintiff had not demonstrably followed that advice .
● there was no justification for finding any impairment in earning capacity beyond that described by the medical practitioners called by the plaintiff, whose assessments varied quite widely .
● the plaintiff relied on self-diagnosis for her opinion that there is no job she can do, and that she requires assistance to attend to some everyday household chores; there is a complete absence of medical support for those opinions .
● the "flare-ups", excluding the November 2004 one on the eve of the trial, had happened only three times in the three years prior to the trial; one in July- August 2002, one in February 2003, and one in February-March 2004 – hardly exhibiting a frequency likely to preclude Ms Wallace holding down employment .
● the sum total of Ms Wallace's efforts to rejoin the workforce after the accident was a small amount of modelling work garnering $766.53 net, and working up to four part shifts in a bar in May 2001 .
● the occupational therapist's opinion that bar work was not beyond Ms Wallace accorded with common sense .
● in 2001, the plaintiff passed a medical examination regarding an application to join the Ambulance Service, but assessed herself as physically incapable of doing that work because of her neck condition. In the same way, she ruled herself out of hairdressing, even in a management capacity, gym instruction, bar work and hospitality generally, and modelling; she had not contemplated part-time work or a combination of part-time jobs that might make different demands on her physically .
● Dr Steadman's report dated 5 June 2002 expressed the opinion that Ms Wallace had a pre-existing degenerative disease in her neck, aggravated by the accident, and affecting her capacity to work; although her lack of ability to work was probably related to some motivational aspects. Dr Steadman considered that by that date she was able to do bar work, but that with her sore neck she would have difficulty sitting with her neck flexed for extended periods .
● a report from Dr Campbell, a neurosurgeon, obtained a year later, described her prognosis regarding returning to work in any capacity as poor , and a report from a Dr McPhee dated 26 August 2003 described radiological investigation showing only age-related changes in the neck and thoracic spine, and describing as reasonable the conclusion that Ms Wallace had suffered a strain of the cervico-thoracic spine with possible aggravation of pre-existing degeneration of a constitutional type; she should be able to maintain full-time employment in any position which is sedentary or included light manual tasks .
● the plaintiff agreed in cross-examination that she had suffered from intermittent neck pain for 11 years from 1989 to 1999, obtaining treatment as required over those years, and that that was the pattern until the year 2000; the learned judge doubted that the plaintiff's doctors had appreciated the extent of those prior neck problems .
● the conclusion was inescapable that there was no reason why the plaintiff should not be able to perform her housework, given the activities that she was pursuing at the gymnasium after the accident; Dr Steadman thought so too .
● it must be found that the accident injury did worsen the plaintiff's condition, but that situation, if not at an end by the trial date, would shortly be at an end; and nothing attributable to the accident was now keeping Ms Wallace out of the workforce .
● the judge expressly relied only on the opinions of those doctors who gave evidence in the plaintiff's case, as the basis for a finding that Ms Wallace had the physical capacity to work.
● positions suitable to a person with the restrictions supposedly afflicting Ms Wallace have actually been available on the Gold Coast, where she lives, at various times since the accident; and she is not unemployable .
● Ms Wallace came to the court with the difficulty of having removed herself from the employed workforce, apparently at her former husband's urging; and her protestations of enthusiasm to re-enter it were not reflected in any action taken by her in the six months leading up to the accident. Her efforts since the accident were close to non-existent .
● it was not possible to find that the plaintiff would have worked but for the injury in the accident, her capacity being impaired to about the end of 2001; whether the plaintiff, had her capacity to work been unimpaired, would have taken advantage of that by pursuing employment was another question entirely .
● cases Mr Webb relied on in his written submissions to the learned trial judge, as demonstrating that whiplash victims may be entitled to very substantial awards for economic loss, and for past and future Griffiths v Kerkemeyer damages, even though their assessed disability seemed relatively modest and at the level of, say, a five per cent whole person impairment, were all ones in which the respective plaintiffs had the advantage of placing before the court a record of working successfully until the accident, and Ms Wallace was not in that situation. Further, those plaintiffs were able to demonstrate a real commitment to continuing in work, having gotten themselves back to it .
● to be brutal about it, Ms Wallace's difficulty was in persuading the court that uninjured, she would have begun working; and it was inappropriate for the court to embark on the conventional exercise of calculating a sum for past or future economic loss based on a notional weekly basis .
● despite some misgivings, the learned judge concluded that the court should acknowledge the modest impairment of her earning capacity flowing from the condition of her neck by a nominal provision of $5,000 for future economic loss; and whether she would have had a working life at all after her injury, had it not occurred, was relatively uncertain .
● the learned judge would allow $10,000 inclusive of interest for past economic loss to reflect what the plaintiff might have lost because of the accident, in the year or so immediately following it .
● the judge was not persuaded that any future treatment or medication the plaintiff might need could be linked to the accident .
● the judge was unpersuaded that the Griffiths v Kerkemeyer claim should succeed at all; the gratuitous services on which it was based were provided by the plaintiff's mother after the latter moved from Victoria to Queensland on 4 August 2002, those being services to assist in keeping the household and family going, including cleaning, driving the children, and the like; and the plaintiff had managed without those for nearly two years following the accident. It was a case of the mother offering help to make things easier for the plaintiff, not a case of provision of services that the plaintiff could not provide for herself .
● the general damages assessed would be $20,000, which happened to be the same sum as in Windon v Edwards (Southport District Court, 381 of 2003, 10 December 2004, in which the learned judge had occasion to consider a range of comparable awards) .
 Those essentially unchallenged findings and observations present a formidable obstacle to Ms Wallace in her application for an extension of time in which to seek leave to appeal the quantum of damages. On those findings, damages would be small. The main focus of the written argument was the asserted error in calculating Griffiths v Kerkemeyer damages for past gratuitous services, which the learned judge had described as being received only on and from 4 August 2002. Contrary to that finding, Ms Wallace had sworn in her document headed "Section 92 Statement of Plaintiff", in evidence not challenged in cross-examination, that her neighbour Natalie Shallett had assisted as described earlier for six hours per week for the first 12 months after the accident. That assertion appeared in the document which was exhibit 7; the plaintiff swore to its truth in evidence in chief, and that specific claim was repeated in exhibit 10, a schedule of past gratuitous care provided to her, and the plaintiff also swore to the accuracy of that document.
 In her evidence-in-chief, all she said was that "When Natalie helped me that was during increased periods of pain where she would then just take care of my children and feed them and then send them home so all I had to do was put them to bed." Mr Webb contended that that unchallenged evidence showed the judge erred in describing the gratuitous services claimed for as being only provided by the plaintiff's mother after 4 August 2002. The submission is correct; the learned judge either overlooked that that claim had been made, or rejected it without express reference to it. A finding rejecting the claim may have been open to the learned judge; Ms Wallace had not been consistent in her claims of assistance from the neighbour. An occupational therapist's report dated 24 June 2003 recorded on p 4 thereof that Ms Wallace did not receive any assistance from her family or friends during the period 20 November 2000-3 August 2002 and the judge could have been unpersuaded by the claim. Further, the judge was generally entitled to doubt the accuracy of Ms Wallace's evidence about services provided to her, because whereas in exhibit 7 Ms Wallace described her mother helping her for four hours each fortnight from August 2002 until March 2004, in exhibit 10 she claimed that at first that had been six hours each day for 90 days from August 2002 until October 2002. That was different from what the occupational therapist had recorded about help from the mother, which was three hours per fortnight from August 2002 onwards (until that professional was seen in mid-2003). Ms Wallace was not cross-examined about the change in the number of hours for which it was claimed her mother had helped her.
 The learned trial judge might therefore have accepted or rejected Ms Wallace's claims that Ms Shallett had provided care for the children twice a week for a year. There was no explanation in evidence-in-chief for the difference between the information in the report presented by Ms Wallace from the occupational therapist, and the information in Ms Wallace's own statements in exhibits 7 and 10. But equally there was no cross-examination challenging the claim that the neighbour provided the services, or suggesting Ms Wallace had given different information to the occupational therapist. It is possible she spoke to that therapist only about the provision of household care, and not about help with the children. She was challenged in cross-examination as to her need for assistance with household work (at AR 61), but that challenge did not expressly include her claimed need for assistance with child care.
 The orders sought in the proposed appeal asked that this Court substitute a figure it calculates, for the gratuitous services the neighbour provided. There was no affidavit from the neighbour, and only Ms Wallace's apparently inconsistent documents, and her own evidence incompletely repeating one of those inconsistent claims. That is a slender basis for a positive finding those services were provided, when this Court did not see or hear Ms Wallace, but because the claim for those services was not specifically contested at the trial, and because the claim was not discussed in the judgment, I would grant the extension of time and allow the appeal by upholding the claim for the child care services provided by the neighbour. I observe that it may have easily been demolished by cross-examination – the care given could well have been during Ms Wallace's visits to her gym on six to eight occasions a fortnight – but there was no cross-examination. The rate claimed was not challenged, $15 per hour, and the hours claimed were 312 (six hours per week for one year). That totalled $4,680; Mr Webb assisted with the information that at five per cent, the interest on that amount was $1,053, making a total of $5,733 which I would order as damages claimed under the Griffiths v Kerkemeyer head.
 As to other Griffiths v Kerkemeyer claims, the learned judge was entitled to come to the conclusion that because Ms Wallace had managed without household assistance (other than with the children) for nearly two years, her mother's help was not a case of the provision of services which it was reasonably necessary for the plaintiff to have provided to her as a result of the injuries received. The judge could have come to a different conclusion, but the one reached was open. No error has been shown in drawing that conclusion, or in expressing it by saying her mother's assistance was not "a case of provision of services that the plaintiff could not provide for herself". In Van Gervan v Fenton (1992) 175 CLR 327, a clear majority (at CLR 333 and 347) described the true basis for a Griffiths v Kerkemeyer claim as the need of the plaintiff for those services; that seems relatively indistinguishable from the description given by the learned trial judge.
 Regarding future or other amounts claimed for physiotherapy expenses, the judge's unchallenged finding that, while the accident injury did worsen the plaintiff's condition, that situation either was or would shortly be at an end, and the uncertainty about when any future "flare-ups" would occur, made it reasonable for the judge not to allow damages compensating Ms Wallace for "flare-ups" after the trial date in December 2004. But the judge only allowed the cost of past physiotherapy up to the end of November 2001. The findings last quoted made it unjustifiable to adopt that as a cut-off date; consistent with the conclusion in  herein, the learned judge ought to have allowed 50 per cent of the cost of those services from November 2001 to the trial date. They totalled $2,244; 50 per cent is $1,122; Mr Webb calculated interest at $178.42, making a figure of $1,300 by which the sum awarded should be increased.
 The judge's other conclusions made the very modest assessments of past and future damages for lost earning capacity, and general damages, reasonable in the circumstances; no error has been shown in the judge's reasoning or in the amounts, though so small.
 I would allow the application for an extension of time in which to seek leave to appeal, grant leave to appeal, allow the appeal, and order the judgment amount of $39,850.35 be increased by ($1,300 plus $5,733) $7,033 to $46,883.35. That is a sufficiently substantial alteration to the earlier total to justify appellate intervention: Elford v FAI General Insurance Co Ltd  1 Qd R 258 at 265. I would order that the respondent pay the appellant’s costs to be assessed on the standard basis.
 McMURDO J: I agree with the orders proposed by Jerrard JA and with his reasons.
 (1977) 139 CLR 161
 See s 118(3) of the District Court of Queensland Act 1967 (Qld)
 The respondents accepted that if the plaintiff proved a need for those services, and that they were provided, a Griffiths v Kerkemeyer claim could be made for them: see Waters v Mussig  1 Qd R 224, 225; Sturch v Willmott  2 Qd R 310, 319, 321, 323
 At AR 300; the reference is to s 92 of the Evidence Act 1977 (Qld)
 At AR 16
 At AR 33, 34
 Ex 3, commencing at AR 264
 Ms Wallace did not claim for the cost of those gym attendances; she had been a regular gym attendee before the accident
- Published Case Name:
Wallace v Nominal Defendant & Ors
- Shortened Case Name:
Wallace v Nominal Defendant
 QCA 244
Williams JA, Jerrard JA, McMurdo J
15 Jul 2005
No Litigation History