Miles v Miles[2000] QCA 415

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I have read and agree with the reasons of Moynihan SJA and Atkinson J.  The appeal should be dismissed with costs as stated by their Honours.

2. MOYNIHAN SJA and ATKINSON J:  The defendants appeal against an award of $410,607.60 damages for personal injuries suffered by the plaintiff in a motor vehicle accident.  A cross-appeal was abandoned.  The appellants’ complaint essentially is that the damages are manifestly excessive because the trial judge failed to give proper weight to matters unrelated to the accident; or (perhaps more accurately) that any consequences of the defendants’ negligence were overwhelmed by the effect of unrelated conditions from which the plaintiff suffered.

3. The plaintiff was born on 9 September 1959. She suffered the injuries for which she is entitled to be compensated by the defendants on 30 September 1994.

4. The plaintiff was qualified as an enrolled nurse and she intended to upgrade to registered nurse. It seems that she worked at times as a casual pharmacy assistant.

5. The plaintiff presented at trial as apparently settled into the role of an invalid whose husband was her full-time carer. The weight of the medical evidence at the trial was that the drug regime which the plaintiff followed was excessive and ought be reduced.

6. A major issue at the trial was whether the plaintiff’s lumbar spine was injured in the accident of 30 September 1994. The evidence established that the plaintiff had a degenerate lumbar spine and that there had been a number of episodes of spinal trauma prior to 30 September. Although it seems the plaintiff’s lumbar spine became symptomatic after the accident, the trial judge found that it was not injured in the accident. He went on to find that the defendants were not liable for pain and disability consequent on the plaintiff’s lumbar spinal problems, including the complications of an unsuccessful surgical intervention. These findings were not challenged.

7. The trial judge found that as at 30 September 1994, the plaintiff was suffering from extreme depression, anxiety and somatoform disorder which predisposed her to convert stress into pain.

8. There was little evidence, if any, of the potential consequences to the plaintiff’s lumbar spine condition or the psychological conditions just referred to, had the September 1994 motor vehicle accident not occurred.

9. The trial judge summarised the disabilities for which the defendants were liable to compensate the plaintiff in these terms:

“there is first of all the broken ribs which have healed but which were very painful for a number of months.  There is the left shoulder and elbow which were also painful for a number of months, but in respect of which there is no residual problem.  There is a residue of soft tissue damage in the neck which involves some headaches and loss of movement.  There is also a significant psychological component which flows from the circumstances of the motor vehicle accident.  She was for a long time very angry with her husband over his responsibility for the accident.  This seems to have been a significant stressor which, with her somatoform disorder, would be converted into pain.”

10. The trial judge dealt with issues of the respondent’s credibility and whether she had “deliberately gone out of her way to build up a claim for damages” in these terms:

“the answer to these matters lies in the observations Dr Mulholland made in the letter to Mrs Miles’ former solicitors of 24 October 1995 to which I have referred (ex 3, p 48):

“You will appreciate that a problem with these neurotic disorders is that the longer they last, the harder they are to treat and some definite treatment at this time is to be encouraged.  Mrs McKinnon may be rather reluctant to take this step.  This sort of negativistic, pessimistic failure or refusal to take appropriate, adaptive, constructive steps to get treatment is typical of the neurotic response.”

The trial judge went on:

“Before 30 September 1994, Mrs Miles was suffering from a somatoform disorder.  The circumstances of the accident of 30 September 1994 were a significant stress which has been converted into physical symptoms.  Coupled with depression, this has produced the negative response to treatment which Dr Mulholland described.  Consequently, I accept the genuineness of Mrs Miles’ complaints.  The explanation for the unreliability of her evidence about her early complaints of lumbar pain is that pain has become her preoccupation and she now remembers it as if it had always been so.”

11. The trial judge was faced with issues of considerable complexity bearing on the assessment of the plaintiff’s damages. In addition to the considerations already adverted to, her personal life prior to the accident had been traumatic. For example, she had apparently been sexually abused as a child. There were four children of her first marriage which ended in 1989. Her second marriage ended in 1994. Her second husband was acquitted of charges of having sexually abused one of the children of the first marriage. Her father had died and her sister had been diagnosed as suffering from cancer. She commenced seeing Mr Salzmann, a clinical psychologist, on 27 July 1994, the triggering event apparently being the acquittal of her second husband. On 11 May 1994 she was diagnosed as suffering from Epstein Barr virus and glandular fever which had led to fever and depression although there was other evidence to the contrary of this.

12. In his reasons the trial judge remarked that some medical practitioners did not have access to material relied on by others, that examining doctors were provided with large volumes of material with the consequence that factual errors in one report were being carried over into others.

13. Over the years, particularly after the accident, the plaintiff had been treated by innumerable doctors and health professionals, had been subjected to a large number of tests and followed various drug regimes. The trial judge remarked on the confusion as to which doctors and other health professionals were treating the plaintiff and which were giving medico-legal reports and on the difficulties which this caused in evaluating the evidence.

14. The trial judge also adverted to the incongruence between the plaintiff’s evidence of being physically fit and preparing to compete in an outrigger canoeing event at the World Masters Games at the time of the injury and other evidence as to her psychological state, some of which has been referred to, at that time. He also mentioned difficulties in resolving differences in opinion between various medical practitioners; for example as to whether the plaintiff was suffering from fibromyalgia in circumstances where neither of the doctors whose views were in conflict was not cross-examined.

15. What has been said illustrates the difficulties which the trial judge faced with evidence which was not such as to provide a basis for precise findings. The case was one where the damages findings were “more a matter of speculation and estimate” than an ordinary finding of fact; c.f. Miller v Jennings (1954) 92 CLR 190 at 195.  Be that as it may, there was evidence founding the trial judge’s findings to the effect that the plaintiff was vulnerable to the stresses imposed by the accident of 30 September 1994 which converted into physical symptoms.  Those findings had two consequences.  First, that the defendants were obliged to take the plaintiff as they found her and secondly that the onus of adducing evidence to disentangle incapacity consequent on the accident from unrelated incapacity rested on the defendants:  Watts v Rake (1960) 108 CLR 158;  Purkess v Crittenden (1965) 114 CLR 164. 

16. The weight and effect of the evidence is a matter for the trial judge and in order to found the intervention of this Court the defendants must demonstrate that his Honour acted on a wrong principle of law, misapprehended the facts or that the award is a “wholly erroneous estimate of the damages suffered...It is not enough that there is a balance of opinion of preference. The scale must go down heavily against the figure attacked...”: Miller v Jennings ante at 196.  This Court said in Brown v Hale, Appeal No 140 of 1994, 3 February 1995 at 5:

“The principles on which this Court will act on an appeal against an assessment of damages for personal injuries are clear.  Even if it be shown that the assessment or a particular component of it was based on an error, whether of law or fact, this Court will not intervene merely for the sake of obtaining arithmetical perfection.  In particular, even if an individual component of the assessment is shown to be excessive, this Court is entitled to look at the totality of the award to determine whether it is substantially in accord with acceptable levels: Elford v FAI General Insurance Company Limited [1994] 1 QdR 258.  Even assuming that His Honour’s award under this head was excessive, bearing in mind the substantial discount which had been applied to other components of the assessment and the proportion which the amount of that error is said to bear to the total award, it cannot be said that the final figure was so excessive as to justify intervention by this Court.”

17. The trial judge assessed the plaintiff’s damages in terms of the applicable conventional heads of damage. He awarded $40,000 for pain and suffering and loss of amenity on the basis of assessing the consequences of “all of” the plaintiff’s present disabilities and discounting it by 60 percent. It was submitted this constituted an error in principle. Queensland University of Technology v Davis,  Appeal No 140 of 1994, 3 February 1995 was cited.  The case affords the appellants no comfort.  After referring to the difficulty of assessing damages Pincus JA refers to trial judges adopting a cautious approach in such cases for reasons which he canvassed.  He then went on to say that from “another angle” he expressed the view that by way of contrast plaintiffs who ignored minor symptoms should not be disadvantaged.  No error of principle has been demonstrated.

18. Twenty-five thousand dollars was allowed for past economic loss on the basis of a net loss of $100 per week for 250 weeks. This reflected a number of variables. These included that had there been no accident and had the plaintiff and Miles married she “may have been freed from the desire to limit her earnings” to protect her pension. Discounting factors to which the judge referred included a possibility of the degenerative lumbar spine becoming symptomatic and the onset of depression.

19. This component of the award was attacked on a number of grounds. Before considering them it is desirable to reiterate that the evidence was incapable of providing a basis for making precise calculations of the plaintiff’s economic loss but sufficient to found the global approach using the figures referred to above.

20. It was submitted that the finding that there was a “possibility” the plaintiff’s degenerate lumbar spine would have become symptomatic did not go far enough on the evidence. As has already been said, there was little evidence as to the consequences of the plaintiff’s lumbar spine condition had the September 1994 accident not occurred and, doubtless reflecting on this, the trial judge made no particular findings about it. It will be recalled however that he did find that the stress of the accident operating on a vulnerable plaintiff converted into pain.

21. In support of a submission that this component of damages was excessive the appellant submitted that the plaintiff’s pre-accident work history was sporadic and limited. On her behalf it was submitted that at the time of the accident the plaintiff was a single mother with four children, including twins, whose ages ranged from 15 to 10, who were becoming less dependant. As the trial judge recognised, the plaintiff’s wish to stay on social security limited her working. This inhibition was removed when she remarried. It was submitted there was no direct evidence to support the availability of additional work for the plaintiff. There was, however, evidence from a person who was the plaintiff’s superior at one stage and who at the time of the trial was the District Manager of the Rockhampton District Health Service. This evidence, which was not contested, supported the conclusion that there was a demand for registered nurses in the Rockhampton district and work would have been available for the plaintiff during her studies.

22. There is point to the defendants’ submission that the plaintiff’s ability to study and work were untried and that she had significant psychological and physical problems unrelated to the accident. As has already been mentioned the trial judge in the course of his reasons took into account the latter considerations. As to the former, the medical evidence reflected a range of views bearing on the plaintiff’s capacity to study and work; no one viewpoint was particularly persuasive.

23. In summary although on one view of it this component of the award might be regarded as generous, bearing in mind the considerations canvassed, no basis has been demonstrated for the intervention of this Court.

24. The trial judge allowed $60,000 for future economic loss, a figure which he said could be no more than “an estimate”. That did not however deter the appellants from treating it as a matter of calculation. The judge concluded that there was little better than a 50 percent chance the plaintiff would become a registered nurse with an income of $435 per week. He took a figure of $250 per week net and attributed half the loss of that amount to the 1994 accident. He applied a 12 year multiplier on the basis that it was unlikely that the plaintiff would have been able to exercise her earning capacity “much beyond 50”; she was 39 at trial.

25. It was submitted that the trial judge’s approach was wrong in principle and that what was required was an assessment of the respondent’s earning capacity on the hypothesis that the accident had not occurred but taking into account her unrelated spinal and psychiatric conditions. It is unnecessary what has already been said about the state of the evidence bearing on those issues. No basis has been demonstrated for interfering with this figure.

26. The defendant’s submissions in respect of the loss of superannuation component of the damages were essentially dependent on success of the submissions in respect of economic loss and it is unnecessary to deal with them further.

27. Two hundred and six thousand, two hundred and fourteen dollars was allowed for what was described as domestic services. The trial judge found that the plaintiff had “adopted a sick role and was effectively waited on by members of her family”. It was in her best interests that she should do as much for herself as she could. He acknowledged however that because of the pre-existing somatoform disorder there was a possibility that this would have happened in any event. He proceeded on the basis that full-time care was not justified. He attributed 40 percent of the need for services to the consequences of the defendant’s negligence, 20 percent to “pre-accident factors” and 40 percent to the consequences of the lumbar surgery. A different apportionment to that used in respect of the economic loss was used because pain and disability may create a need for services without having prevented her from working.

28. It was submitted in support that the trial judge’s approach involved the application of a wrong principle and that the proper approach required that the needs created by the accident be identified. It was submitted that the plaintiff’s case distinguished between needs created by symptoms unrelated to the accident and needs that were. It was also submitted that to the extent to which a need for a service arose from conditions both related and unrelated to the need, they should not be paid for by the defendants.

29. These are not matters of principle. It is unnecessary to repeat what has been said about the nature of the task and the difficulties facing the trial judge in assessing damages. On the plaintiff’s case it was for the appellants to provide the evidentiary basis for disentangling consequences flowing from the accident and those which did not. It has not been demonstrated that the trial judge erred in his findings on this aspect.

30. An allowance of $37,179 was made for the cost of medication. The plaintiff claimed $92.85 per week over 40 years. The trial judge proceeded on the basis, both in the allowance for gratuitous care and this component that the plaintiff’s life expectancy was average and that there would be a significant reduction in her use of medication and set about eliminating those drugs unrelated to the accident. He arrived at $40.50. No error has been demonstrated.

31. The plaintiff claimed $94,037.90 for dental care. After weighing up various competing considerations the trial judge allowed $8,500 for expenses. This flowed from the effects of the respondent’s use of morphine. It appears that the morphine inhibits or destroys saliva flow which leads to decay. No error has been demonstrated.

32. The case is one in which a wide range of conclusions was open on the evidence. The appellants have failed to establish a basis for the intervention of this Court. The appeal should be dismissed and the appellants should pay the respondents costs to be agreed or assessed.