Lewis v Strickland[2004] QCA 134

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the judgment of Jerrard JA, where his Honour sets out the circumstances of the matter.

[2] There is every reason why the order sought should be made:  the respondent is impecunious, his prospects of success in the appeal are weak, and his proposed fresh evidence is inadmissible, because it could probably have been secured for the trial and it would have been unlikely to impact upon the trial Judge’s conclusions anyway, based as they were substantially upon his accepting, as was open, certain medical evidence.  The amount sought is modest, and the applicant has not been guilty of significant delay in bringing the application. 

[3] I agree with the orders proposed by Jerrard JA.

[4]  JERRARD JA:  This is the hearing of an application by the Nominal Defendant, which is the second respondent in an appeal brought by Mr Lewis against the very modest sum of $6,572.00 awarded to him as damages.  That award was in proceedings brought by him in this court in respect of personal injury suffered as a consequence of negligent driving by the first defendant, (and first respondent on the appeal), one Carly Strickland.  The appellant’s grounds of appeal complain that the amounts awarded for pain and suffering and loss of enjoyment of the amenities of life, for economic loss, and for past and future physiotherapy, medication, and medical attendances, were all grossly inadequate and could not reasonably have been arrived at on the evidence.  Those grounds also complain of errors in findings made by the learned trial judge, of which the most significant was the finding that the appellant’s injuries and disabilities for which he sought damages were a result of a pre-accident disability.  The applicant Nominal Defendant has applied for an order that Mr Lewis provide it with security for costs on the appeal in the sum of $5,782.00. 

[5] The matters relevant to this application include:

● the appellant’s prospect of success on the appeal.[1]

● Mr Lewis’ financial position.[2]

● the fact that he has had his “day” in court and lost on the merits.[3]

● any delay in bringing the application.[4]

Prospects of Success

[6] The appellant’s claim for damages arose by reason of a driving incident on 3 June 1996, in which his stationary vehicle was struck from behind by the first defendant’s car.  The plaintiff’s case at trial, in which he represented himself, was that the forces acting upon his body in that collision resulted in his suffering a prominent posterior disc protrusion at the L4/5 level.  While the plaintiff’s case conceded that before the accident he used to experience chronic, lower back ache that episodically flared into a temporarily disabling condition, he asserted that since the accident he had been afflicted by a strong, ever present pain that restricted movement, denied all gainful employment, necessitated his taking drugs daily, and required regular “microwave” treatment for pain relief from his treating general practitioner or a physiotherapist.[5]

[7] As summarised by the learned judge, the plaintiff’s case at trial was that the accident had produced a different state of affairs from that which prevailed before June 1996.  The plaintiff described his post accident circumstances as involving such discomfort and disability as to prevent his working at all, whereas he had previously suffered from a periodic incapacity for work caused by occasional acute exacerbation of his lower back condition, but which condition had always improved with time.  The plaintiff particularly pointed to the fact of his having worked for two days as a concreter in mid March 1996, (that being heavy manual labour), his having spent a few hours as a driver’s assistant on 13 May 1996, and having worked constructing a block and concrete retaining wall on 31 May and 1 June 1996, this work also being heavy labour.  This employment in mid March, May, and June 1996 were examples of the infrequent employment the plaintiff had had pre-accident, he having survived mostly on unemployment and sickness benefits in the six years before 3 June 1996.  For the two years or so before the accident he had both lived and also worked at his sister’s house, engaged in building walls and other labouring tasks, work which had the incidental advantage of preparing him for what he described as his intended return to paid employment.  This was intended to be as a contractor, working in parts such as labouring and landscaping, using a vehicle he had acquired for that purpose four weeks before the accident.

[8] The evidence at trial was that Mr Lewis had suffered from a variety of conditions which at various times had incapacitated him for employment.  As described in an application for a disability pension in late 1994, these had included a badly dislocated left ankle in “1981-1991”, an injury to his right wrist in 1982, a knee injury in 1991, a right elbow injury in 1992, and a left shoulder problem in 1994.  It had also included a “torn sciatic nerve/disc displacement” in 1980.[6]  On 27 March 1996 he complained to his general practitioner, a Dr Kelly, of acute low back pain that extended into the right buttocks, and described having suffered a “pinched nerve” in early 1980-1981.[7]  Dr Kelly sent him for physiotherapy, and on 11 April 1996 the plaintiff complained to the physiotherapist, Mr Christensen, of constant and variable aching in the lower back, and right sided pain extending into the buttocks and leg.  He described waking at night in pain and that “sitting to standing”, coughing and sneezing were all painful.  Mr Christensen recorded that the plaintiff spoke of a 15 year history of back pain, that in the previous five years there had been an exacerbation of that condition each six months, and in the last year an exacerbation of it every six weeks.  Examination revealed tenderness on palpitation at L4/5, pain on flexion and extension of the back, and Mr Christensen recorded the impression that the source of the pain was a “discal problem”, that is, a problem with the disc in the lumbar region.[8]

[9] On 12 April 1996 the plaintiff described some improvement in his condition to Mr Christensen.  On 16 April 1996 Dr Kelly issued him with a two week certificate to obtain sickness benefits.  On 17 April the plaintiff saw Mr Christensen again, describing a fall that had increased his back pain once again.  He returned on 23 April 1996 with his back considerably improved, describing his symptoms as having returned to the “baseline” level of chronic ache from which he had suffered for many years, according to Mr Christensen’s notes.[9]

[10]  Mr Lewis saw Mr Christensen on 30 April 1996.  He complained then of another fall, suffered on 29 April, which had increased Mr Lewis’ back pain, and described having difficulty getting out of bed in the morning.  Mr Christensen treated the plaintiff and suggested he obtain a magnetic field therapy machine to assist healing.  The plaintiff told Dr Kelly of the aggravation of back pain from the 29 April fall when he saw Dr Kelly on 2 May 1996, asking for a certificate to support a two week extension of sickness benefits.  The next day the plaintiff saw Mr Christensen again, and the latter recorded that although the plaintiff still had intermittent sharp back pain, his back was “much settled”.  By 29 May, after more treatment from another physiotherapist, a Mr Ey, the pain was “back to its normal level” as noted by Mr Ey.  Mr Ey wrote a letter to Dr Kelly dated 4 June 1996 suggesting that it might be beneficial for the plaintiff to have a CT scan to “give a more definitive diagnosis”.  As events turned out the accident happened the day before that letter was sent.

[11]  Mr Lewis saw Dr Kelly two hours after the accident on 3 June 1996.  Dr Kelly recorded that Mr Lewis was suffering from a painful lower back injury and that he had “been laying bricks, sore because of that”.  Dr Kelly saw Mr Lewis again on 6 June, and Mr Lewis again complained of pain, mainly in the right lower back and extending into the right buttock and leg.  A CT scan was ordered and that disclosed the prominent posterior disc protrusion present at the L4/5 level.  It was described as probably impinging the right L5 nerve root.  The judgment under appeal records that this condition is the primary cause of ongoing pain and restrictions said to have adversely affected the plaintiff’s enjoyment of life, and that the contest at trial concerned the extent to which, if at all, the accident brought about that condition and its related consequences.

[12]  Mr Lewis told Mr Ey on 12 June 1996 that he was experiencing severe pain on palpitation of L5, and spoke of a constant, variable pain increased by sitting, and which was waking him at night.  On 13 June Mr Lewis told Dr Kelly of increased pain in the upper lumbar region continuing into the right buttock; that condition when reviewed by Dr Kelly on 24 July was described as “almost negligible” buttock pain, although Mr Lewis was “still having physio twice a week”.[10]  A Dr Parkington, an Orthopaedic Surgeon to whom solicitors retained by the plaintiff within a fortnight of the accident had sent him for assessment, recorded being told by Mr Lewis on 29 July 1996 that Mr Lewis was not taking any analgesics and had been receiving physiotherapy twice a week for the past eight weeks.  Mr Lewis complained to Dr Parkington of low back pain radiating into the right buttock and right groin, of varying sleep disturbance, of discomfort when sitting, standing, and walking, and of relief from lying down.  Dr Parkington’s opinion was that Mr Lewis was suffering from a “prolapse invertebral disc at the L4/5 level”; and that what Dr Parkington understood to be the “minor bump” from behind in the collision was not capable of causing the disc prolapse that accounted for the symptoms the plaintiff described to the doctor on 29 July 1996.[11]  In Dr Parkington’s opinion, the disc prolapse existed prior to the road traffic accident on 3 June and that the whole of Mr Lewis’ ongoing complaint was due to spinal disease pre-existing that traffic accident.  His opinion included the observation that “this accident involved only minimal violence and there was no damage to his vehicle”.

[13]  Dr Kelly wrote a report dated 10 October 1996 in which that Doctor described Mr Lewis as having sustained injury to his lower back in the traffic accident, resulting in more than six months of pain necessitating restriction of activities, physiotherapy and various other treatments, but that Mr Lewis progressed satisfactorily and full recovery was anticipated.[12]   That anticipated recovery did not occur; the plaintiff had begun consulting a different general practitioner, a Dr Wyton, in late 1996 and who has remained the plaintiff’s treating practitioner thereafter.  That doctor prescribed Naprosyn to help the plaintiff with physical discomfort, and Prozac to overcome Mr Lewis’ depression; and Dr Wyton described in September 1997 that the plaintiff suffered from persistent and chronic problems in the lower back.  Since then he has received regular, typically weekly, “microwave” treatment for pain relief from Dr Wyton or a physiotherapist, for what were usually complaints of back pain.[13]  In a 1998 report Dr Wyton predicted that Mr Lewis would need ongoing “modalities of palliative relief for his back condition”.

[14]  The learned trial judge preferred the opinions expressed by Dr Parkington to those expressed by the medical practitioners relied on to bolster the plaintiff’s case.  Dr Parkington’s opinion was supported by that of Dr Martin, an Orthopaedic Surgeon who saw Mr Lewis in April 1999, and who advised that the relevant disc protrusion was a consequence of the pre-existing degenerative process involving the L4/L5 disc, which had what Dr Martin described as a “well established pathology” as at the radiological investigations performed on 7 June 1996.  Dr Martin considered that Mr Lewis was capable of working at his former capacity. 

[15]  The learned judge considered that Dr Kelly’s opinion expressed in his 10 October 1996 report was affected by Dr Kelly’s acknowledged ignorance of the history the plaintiff had conveyed to the physiotherapists in the two months preceding the accident.  The learned judge also referred to the other doctors upon whom the plaintiff relied, they being Dr Wyton, a Dr Yaksich, and a Dr Pentis; and the judge explained why their opinions had not sufficiently advanced the plaintiff’s cause.  This was because the plaintiff had led Dr Wyton to understand that he had been able to work an eight hour day for months – perhaps years-on end before the accident, and withheld from Dr Wyton knowledge that not long before the accident he had complained to Dr Kelly and the physiotherapists of pain extending into the right buttock and leg.  Dr Wyton acknowledged that those were symptoms indicative of acute disc prolapse impinging on the nerve, those being the symptoms that Mr Lewis had when he saw Dr Wyton, which therefore suggested to Dr Wyton that the plaintiff’s problems now could be a continuation of that pre-accident state.[14]

[16]  The reasons for judgment record that while Dr Pentis did know that the plaintiff had received physiotherapy in the months leading to the accident, the information that Doctor had received still presented what the judge described as an incomplete picture of the extent of Mr Lewis’ complaints and the treatment he had received; and Dr Pentis’ evidence was not definite in attributing the post accident complaint to the accident.  The learned judge quoted that evidence as describing how the accident “may have damaged” further whatever was the problem with the discs prior to the accident, and that the impact force “may have been enough” to push an already degenerative disc “out far enough to cause further problems”.[15]  The learned judge was content simply to describe the opinion of Dr Yaksich as having been materially mistaken about the pre-accident position.

[17]  It seems on all that evidence that the history supplied by Mr Lewis to Dr Parkington on 29 July 1996 did not actually describe Mr Lewis’ condition as being worse in the two months after the accident than it was before, and that is consistent with what Dr Kelly was told on 24 July 1996, and with the crucial findings of the trial judge.  The learned judge preferred and accepted the views of those witnesses the judge specified, giving reasons, and did not rely on those opinions which the judge rejected, giving reasons.  The findings the judge made reflected the opinions the judge accepted and the evidence generally.  The appellant faces a significant task in overturning those findings on appeal, since they appear open on the evidence described in the judgment. Accordingly, his prospects of success appear less than even at present. The quantum of damages awarded was limited to economic loss and other costs experienced between 3 June and 29 July 1996, and the award for pain and suffering and lost enjoyment of amenities of life reflected acceptance of Dr Parkington’s view that on and after 29 July 1996 the whole of Mr Lewis’ ongoing complaints should be considered due to spinal disease existing prior to 3 June 1996. 

[18]  Perhaps in recognition of that, the appellant’s outline of argument in the appeal describes how he seeks leave in the appeal to adduce some further evidence.  He has disclosed on this application what that evidence is, and it includes evidence which, if accepted, would show that his vehicle suffered greater damage in the collision than was described by the learned trial judge in the reasons for judgment.  The Nominal Defendant submitted on this application that all of the further evidence now sought to be put before this court on the appeal was available to Mr Lewis, but not led, at the trial; and that there was evidence led in the trial showing that Mr Lewis had asserted that his vehicle had suffered a greater degree of damage than that referred to by the learned trial judge.  Further, the Nominal Defendant submitted on this application that the description given in the reasons for judgment  by the learned trial judge was the description that Mr Lewis gave of what he at first thought was the very minimal damage to his vehicle, namely a slightly damaged rear number plate.  If the evidence Mr Lewis now wants to call supporting his proposition of greater damage than a bent number plate is admitted on the hearing of the appeal, it could be used to attempt an undermining of Dr Parkington’s opinion.  It is impossible to be confident that that evidence will be admitted or acted upon on the appeal, or that it will necessarily have any impact on the reasoning of the learned trial judge relying on Dr Parkington’s opinion.  Even if admitted, there may be no impact at all.

The appellant’s financial position

[19]  The evidence demonstrated that Mr Lewis was receiving a disability pension at the time of trial, apparently granted in January 1997, had been living for many years both prior to and since the accident in a “granny flat” with his relatives in Tweed Heads, and had relied for many years prior to the trial on social security as his main source of income.  That evidence, and an affidavit filed by Mr Lewis and sworn 13 April 2004, justify a finding that Mr Lewis is unlikely to have any assets from which to satisfy his net debt (assessed as being $11,352.28) to the Nominal Defendant, and no revealed prospect of being able to do so by other means.  If his appeal is unsuccessful he will be equally unable to satisfy an order for costs against him.

Delay

[20]  The judgment under appeal was delivered on 21 November 2003, following a trial heard on 3 – 6 November 2003.  The learned trial judge ordered on 21 November that the plaintiff recover from the second defendant his costs of the proceedings to and including 15 May 2002, to be assessed by reference to the scale of costs applicable to claims for less than $50,000.00 in the District Court; and further ordered that the Nominal Defendant recover from the plaintiff its costs of the proceeding from and including 16 May 2002 to be assessed.  The appellant’s notice of appeal was filed and dated 11 December 2003, and in this application the applicant’s material demonstrates that it commissioned and received by letter dated 19 January 2004 from Monsour Legal Costs Pty Ltd an assessment of the likely costs it would be liable to pay Mr Lewis regarding the trial (assessed at $8,076.90), the amount it would be entitled to recover from the plaintiff as its costs incurred since 16 May 2002, ($26,001.18), and its anticipated costs of the appeal ($5,782.00).  The application for an order for security for costs was not filed, however, until 2 April 2004; accordingly there has been delay in bringing this application, not explained by the appellant’s failure to respond to the applicant’s letter to him dated 29 January 2004, advising him of those assessments of costs, requesting security for costs in the amount of $5,782.00, and requesting a response consenting to the provision of that security within 14 days.  The delay is partly explained by the fact that Mr Lewis did not file his outline of argument until 1 March 2004.

[21]  This delay is of less weight when it has not been shown that Mr Lewis, who represented himself at the trial and continues to do so, has actually expended any money on the preparation of the appeal since filing his notice of appeal.  He has filed his outline of argument; and the appeal index is under preparation, with the appeal listed for hearing on 25 May 2004.  Mr Lewis has expended time in the preparation of the appeal, including in the pursuit of the further evidence he hopes to put before the court, but that would not have caused him to lose any income; and as the appeal record has not been prepared, the delay is less significant than the delay in Natcraft. 

[22]  In the circumstances the only available assessment is that the appellant has less than even prospects of success, cannot pay costs, and failed at trial.  Accordingly, I would exercise this court’s discretionary power and order as follows:

(a)that within 28 days the respondent pay the Registrar, by way of security for costs of the appeal, the sum of $5,782;

(b)that pending the provision of such security, proceedings in the appeal be stayed;

(c)that in the event security is not paid in accordance with (a), the appeal be deemed, without further order, to have been struck out with costs to be assessed;

(d)that the costs of this application, be costs in the appeal.

[23]  HOLMES J: I agree with the reasons of both de Jersey CJ and Jerrard JA and with the proposed orders.