Lehmann v Warren[2017] QDC 69

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 2 September 2014, the plaintiff was injured in a road collision. Her car was stationary, waiting to turn left when another vehicle failed to stop behind her, collided with her car and pushed it 50 metres along the road. She brought a claim in the Magistrates Court. Liability was admitted. The quantum-only trial came on before a magistrate at Brisbane on 26 and 27 April 2016 and the learned Magistrate delivered reasons for judgment on 24 May 2016.

2. [2]
   This appeal is against part of that decision, namely that “The Plaintiff has not proven that she has sustained any loss of earning capacity into the future.”

Nature of the appeal

3. [3]
   Part 6 of the Magistrates Court Act 1921 (Qld) is entitled ‘Judgments, new trials, appeals and related matters’. Section 43 relevantly provides that, subject to the Act, “all judgments and orders made by a Magistrates Court shall be final and conclusive”.

4. [4]
   Section 44 provides that a party dissatisfied with any decision of a Magistrates Court may, at any time within 7 clear days, apply to the court for a new trial.

5. [5]
   Section 45 is the appeal provision. Any party who is dissatisfied with the judgment or order of a Magistrates Court may appeal to the District Court “as prescribed by the rules”.^[1] 

6. [6]
   Section 47 of the Act provides as follows:

47  Jurisdiction of the District Court

On the hearing of an appeal or special case, the District Court may do any of the following—

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;

2. (b)
   order a new trial on such terms as it thinks just;

3. (c)
   order judgment to be entered for any party;

4. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;

5. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;

6. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.

7. [7]
   These provisions may be contrasted with the provisions in Part 9 of the Justices Act 1886 (Qld) which govern appeals from an order of a magistrate in a criminal matter to the District Court. In particular, s 223 provides that the appeal under s 222 is by way of rehearing on the evidence given in the proceeding below but the District Court may give leave to adduce new evidence if satisfied there are special grounds for giving leave. Section 225 provides, among other things, that on hearing the appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

8. [8]
   As is plain from the provisions in the Magistrates Court Act, an appeal is a creature of statute. The precise nature of the appellate jurisdiction is expressed in the statute creating the jurisdiction.^[2]Senior Counsel for the respondent submits that the nature of the appeal created by Part 6 of the Magistrates Court Act is best described as an appeal in the strict sense where the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given.^[3]In such an appeal, the question is whether the judgment complained of was right when given on the material then before the court.

9. [9]
   Counsel for the appellant submits the appeal is by way of re-hearing.

10. [10]
    There has been some difference of opinion about the nature of the appeal but I am persuaded by the analysis of McGill SC DCJ in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272 that the appeal is by re-hearing.^[4]Once it is recognised that the s. 47(d) is widely enough expressed to include leave to adduce new evidence, the jurisdiction reasonably resembles the accepted look of a rehearing:

“where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.”^[5]

11. [11]
    In Teelow v Commissioner of Police [2009] QCA 84, (an appeal under s. 222 of the Justices Act 1886 (Qld)) Muir JA said at [3 – 4]:

A characteristic of an appeal “by way of rehearing” is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal “by way of rehearing” under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:

“It is well settled that a provision that characterises an appeal to this Court as a ‘rehearing’ ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …”

It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”^[6]

12. [12]
    The record includes reports (primary and supplementary) from Dr Wallace and Dr Dickensen, orthopaedic specialists called by the appellant and respondent respectively, reports from Mr Scalia and Ms White, occupational therapists called by the appellant and respondent respectively, hospital and medical centre records and other letters such as one from Mr Oliveri, physiotherapist. Oral evidence came from the appellant herself, Dr Cheung, a general practitioner, Mr Oliveri and cross examination of both doctors and both occupational therapists.

Grounds of appeal

13. [13]
    The first ground of appeal asserts that the appeal is of right pursuant to subsection 45(1) of the Magistrates Court Act. That point is conceded. Grounds 2 to 8 of the appeal are as follows: 

2. The magistrate erred in failing to properly consider the evidence, specifically the evidence of the appellant, that she has ongoing pain and restrictions in her neck and back;

3. The magistrate erred in finding that the appellant suffered some minor cervical pain for a limited period only;

4. The magistrate erred in finding that the appellant’s thoracic and lumber spine pain are unrelated to the accident;

5. The magistrate erred by finding that the appellant stopped work for reasons not including the appellant’s ongoing pain from the car accident;

6. The magistrate erred in finding that the appellant has not suffered any loss of earning capacity into the future;

7. The magistrate erred by finding that the appellant had been working as a bookkeeper, at least since the accident; and

8. The magistrate erred in failing to provide adequate reasons for the findings in the abovementioned paragraphs 3, 4, 5, 6.

14. [14]
    The appellant’s attack is on findings which may support the learned magistrate’s conclusion that the appellant did not suffer future loss of earning capacity.

15. [15]
    Apart from Ground 8, the grounds of appeal reduced to the assertion that certain factual findings were not open to the learned magistrate. I am not persuaded that this has been established with respect to any of them.

16. [16]
    Grounds 2 and 3 should be dealt with together because, as I understand the argument, it is primarily because of the failure complained of in ground 2 that the learned magistrate reached the conclusion complained of in ground 3.

2. The magistrate erred in failing to properly consider the evidence, specifically the evidence of the appellant, that she has ongoing pain and restrictions in her neck and back;

3. The magistrate erred in finding that the appellant suffered some minor cervical pain for a limited period only;

17. [17]
    The appellant refers to her evidence of suffering pain and evidence of her reports of pain to Dr Cheung, Dr Wallace, Dr Dickinson and the evidence of the two occupational therapists. The appellant argues that the learned magistrate did not make adverse findings as to her credit and so her evidence and that of the clinicians and experts should be accepted.

18. [18]
    The appellant’s reliability with respect to her injuries was put in issue. She agreed in cross-examination that she had signed a statement of financial loss which included the information that she returned to work on 8 September 2014 and was not still losing income. It was put to her and she agreed that when she left the Gold Coast Hospital the opinion was she would be able to return to work two days later. The statement of claim included a claim for past economic loss with respect only to two days of lost employment - $86.06.

19. [19]
    It is not correct to say the learned magistrate did not make adverse findings as to the appellant’s credit. His Honour recorded the plaintiff’s evidence - that she suffered pain from the hairline down her spine, radiating to both trapezius muscles and a band of pain across the lower back – and continued that “in contradiction of the above”, the plaintiff was seen by Dr Andrew Cheung whose record of the consultation on 29 September 2014 included only “whiplash and neck pain”. The learned magistrate recounted evidence under cross-examination of Dr Cheung that the plaintiff did not complain to him at the time of that consultation, which was the first after the accident, three and a half weeks after the accident, of pain radiating to her arms, or of thoracic or lower back pain.

20. [20]
    Dr Cheung gave evidence that it was on 25 February 2015 that the appellant complained of pain beyond the cervical spine.

21. [21]
    Other remarks in the reasons for decision also demonstrate negative findings as to the appellant’s credibility. The occupational therapist called by the respondent, Ms White, gave some evidence that during a certain exercise the plaintiff fully flexed her spine and bent over to pick up pegs at the bottom of a bucket, with no evidence of pain. The appellant, in her evidence, said she picked up the bucket to do the peg board exercise. The learned magistrate rejected the plaintiff’s evidence and accepted that of Ms White.

22. [22]
    The appellant argues that the learned magistrate failed to take into account the evidence of the expert witnesses and clinicians in support of the appellant’s evidence of continued pain. The proper way to understand that evidence, insofar as it affects an assessment of the appellant’s credibility, is that it merely amounted to evidence that she reported pain. The learned magistrate remarked, in this regard, of the evidence of Mr Scalia, the occupational therapist called by the plaintiff: “The report of Mr Scalia was of no particular assistance, as he merely repeated what he was told by the plaintiff, and does not, in my view, either assist the court or advance the plaintiff’s case.”

23. [23]
    The finding referred to in Ground 3 is included in the paragraph containing the learned magistrate’s ultimate findings. It is worth quoting it in full:

“I accept the undisputed evidence, supported by the plaintiff’s statement to Mr Scalia, that she had only two days off work as a consequence of the accident. I find that she has suffered no ongoing compensable loss, in accordance with the opinion of Dr Dickinson. At most, the plaintiff has suffered some minor cervical pain for a limited period.  I find, on the balance of probabilities, that her complaint of thoracic and lumber pain is unrelated to the accident. I find that the plaintiff has not proven that she has sustained any loss of earning capacity into the future. She is capable of working as a bookkeeper at the least, and has been since the accident.” 

24. [24]
    The appellant has not demonstrated any error in reaching the conclusion that the appellant suffered “some minor cervical pain for a limited period only”.

25. [25]
    The learned magistrate dealt with the difference of opinion between Dr Wallace and Dr Dickinson. Dr Wallace was called for the appellant. His Honour made several criticisms of Dr Wallace’s evidence. The first was that Dr Wallace had not been provided with the reports of other practitioners nor had he seen Dr Dickinson’s report or the reports of the occupational therapists. This is confirmed by reference to Dr Wallace’s report and cross-examination. He had access to medical, hospital and ambulance records as well as the Notice of Accident Claim form and Additional Information Form both dated 24 September 2014 but not the material mentioned by the learned magistrate. Second, Dr Wallace stated as a basis for his conclusions that the plaintiff had to stop work as a result of her ongoing pain (see Ground 5 below). The learned magistrate considered that was inconsistent with the plaintiff’s evidence that she resigned because of the car accident and for personal reasons including that she wanted to be with her children. Third, the learned magistrate recounted Dr Wallace’s clinical findings which included “lateral rotation to the left restricted compared to the right”. His Honour commented that Dr Wallace did not say how restricted or whether this was of any clinical significance. Fourth, Dr Wallace gave the opinion that the plaintiff had a 5 per cent whole person impairment without explanation as to how the finding was arrived at.

26. [26]
    His Honour noted that Dr Dickinson’s clinical findings were largely similar to those of Dr Wallace apart from the finding that the plaintiff displayed no asymmetry of flexion and extension. Dr Dickinson found the symptoms of the plaintiff to be not consistent with the accident and not related to it. His Honour went on to say that he preferred Dr Dickinson’s evidence.

27. [27]
    I am not satisfied the plaintiff has demonstrated the magistrate failed “to properly consider” the appellant’s evidence not any error in the learned magistrate’s reasoning with respect to the assessment of the expert medical evidence. It was open to His Honour to prefer the evidence of Dr Dickinson and Ms White and that evidence leads reasonably to the finding that the road collision caused appellant to suffer only minor cervical pain for a limited period only.

28. [28]
    I see no basis for drawing any other inferences. On my own review of the evidence, giving proper weight to the opportunity the magistrate had to see and/or hear the witnesses, I reach the same conclusion.

Ground 4 - The magistrate erred in finding that the appellant’s thoracic and lumber spine pain are unrelated to the accident.

29. [29]
    As to this ground of appeal, the appellant refers to the evidence of her own reports to doctors and health professionals. I have already noticed that Dr Cheung’s evidence was that the back pain was first recorded on 24 February 2015. The finding was open to the learned magistrate, particularly given His Honour’s view of the appellant’s credibility and reliability.

30. [30]
    The finding that the appellant’s complaint of thoracic and lumber pain is unrelated to the accident was, with respect, probably unnecessary, but in any case wholly consistent with Dr Dickenson’s evidence which the learned magistrate was entitled to act upon:

“You accept that Ms Lehmann – or you accept that it would be reasonable that Ms Lehmann have ongoing pain after seven months from the accident? --- She may have pain but she – but it’s hard to reconcile that the symptoms that she would have ongoing at that time to any significant degree would be related to that accident, as caused by any orthopaedic abnormality.

Doctor, you’re not saying, are you, that people that have pain after whiplash style injuries shouldn’t have pain after seven months? – No, what I’m – I’m not saying that. What I’m saying is that the pain should not be of great significance and should not reflect any significant ongoing abnormality. That’s not to say that they haven’t got pain of some cause; it’s just that the physical cause of pain at such a distance from the time of the initiating injury is not easily explainable on the basis of any orthopaedic pathology. The pathology of injury is that the injury heals. If one can identify, for instance, a tear of the ligament, therefore some instability of the joint, or some neurological problem, then those may be the cause for ongoing symptoms. But in the absence of those clearly identifiable pathologies, then the presence of symptoms is not related to any pathology.

Ground 5 – The magistrate erred by finding that the appellant stopped work for reasons not including the appellant’s ongoing pain from the car accident.

31. [31]
    It is not clear to me that the learned magistrate made such a finding. Nor, if his Honour did, that it affects the essence of the appeal - the finding that the appellant suffered no future loss of earning capacity. His Honour said, when addressing Dr Wallace’s evidence:

“Dr Wallace stated as a basis for his conclusions that the plaintiff had to stop work as a result of her ongoing pain. See page 4 of his report. This is inconsistent with the plaintiff’s evidence that she resigned “because of the car accident” and for “personal reasons”, and that she wanted to “be there for her children”.

32. [32]
    This was, with respect, correct. The appellant candidly gave evidence that she stopped work for personal reasons and also because she was finding it difficult to carry out her duties. She had separated from her husband six months earlier and wanted to be with her daughters more. The appellant gave evidence she had the care of four daughters aged six, seven, 10 and 14 years.

33. [33]
    The appellant’s submission is “given the appellant gave credible evidence, and explained her position, a finding that the appellant stopped work for reasons not related to the car accident and her injuries cannot stand in the place of the evidence”.

34. [34]
    His Honour formed a view about the appellant’s credibility. No inference of fact that I might draw from facts found by the magistrate would assist the appellant in this regard. I have already noticed His Honour’s statement regarding the undisputed evidence that the appellant took only two days off work as a consequence of the accident. So much was pleaded and admitted. It would be difficult to support a finding that the appellant stopped work for reasons not including the appellant’s ongoing pain from the car accident. But any error as alleged in this ground of appeal would be of no consequence to the outcome of the appeal.

35. [35]
    All of the preceding arguments lead to the submission, made under Ground 6: that the learned magistrate erred in finding the appellant had not suffered any future loss of earning capacity. The key to this conclusion was the finding attacked by ground 3. I have set out why I think that finding was proper on the evidence.

36. [36]
    The appellant argued this ground with Ground 7, asserting a factual error, namely that the learned magistrate found the appellant had been working as a bookkeeper since the accident. I am satisfied His Honour did not say that. His Honour said, “She is capable of working as a bookkeeper at the least, and has been since the accident.” It is the capability that His Honour found had subsisted since the time of the accident. This was in accordance with the opinion of occupational therapist, Ms White. The appellant gave evidence that she would need to refresh her qualifications and that there were certain obstacles to her pursuing a bookkeeping business. For example, that business would require her to sit for a certain number of hours a day and she would need time to build up clients. The respondent points to the statement of Dr Wallace in his report of 22 April 2015 that the appellant would be “more suited to returning to sedentary work required of a bookkeeper”. I am not satisfied that the appellant has shown any error in the learned magistrate’s conclusion with respect to the appellant’s capacity to work as a bookkeeper.

37. [37]
    The effect of the evidence which the learned magistrate accepted was that, if the appellant continues to feel pain, it cannot on the balance of probabilities be sheeted home to the road collision. That being so, any disadvantage the appellant suffers in the employment market, is not compensable in this claim.

Ground 8: that the learned magistrate erred by failing to provide adequate reasons with respect to the complaints in Grounds 3, 4, 5 and 6. The appellant submits the reasons are inadequate because it is not possible to understand from the judgment how the conclusion was reached. I am not satisfied this complaint is made out.

38. [38]
    The appellant refers to the reasons of McMurdo P in Martin v Rowling & Anor [2005] QCA 128. At [3], the learned President said:

In giving reasons for decisions, a judicial officer is obliged to adequately disclose the process of judicial reasoning so that justice is not only done but seen to be done. A judge should refer to relevant evidence; set out any material findings of fact and any conclusions or ultimate findings of fact reached; give reasons for making the relevant findings of fact and conclusions or for preferring one conclusion to another and explain how the law has been applied to the facts found. This is because the reasons must place the parties in a position to understand why the decision was made sufficiently to allow the exercise of any right of appeal and so that any appellate court considering the decision can understand the reasoning process. The obligation to give adequate reasons does not require the reasons to necessarily be lengthy or elaborate but they should articulate the essential ground or grounds upon which the decision rests.^[7]

39. [39]
    The last sentence might apply especially to busy courts like the Magistrates Court.^[8]Even busy courts have a duty to provide reasons for their decisions.

40. [40]
    The learned magistrate’s reasons are brief, however it was a short, “quantum only” trial. Apart from the classification of the plaintiff’s injury, there really was only one other issue, namely whether a continuing injury giving rise to a claim for future loss of earning capacity was established. In very brief compass, the learned magistrate referred to the evidence of the plaintiff and all other witnesses except the physiotherapist, Mr Oliveri, whose evidence related only to the possible cost of future treatment. The reasons sufficiently set out a basis for not accepting all of the plaintiff’s evidence and for preferring the evidence of Dr Dickenson and Ms White over that of Dr Wallace and Mr Scalia. That is, the reasons sufficiently set out a basis for the conclusions drawn.

41. [41]
    The learned magistrate’s orders included a “global future out-of-pocket expenses in the sum of $2,000”. The appellant submits such an order imports a finding inconsistent with the finding that the appellant has suffered no future loss of earning capacity. I was told during the hearing of the appeal that the sum was conceded by the respondent at trial. Mr Crow QC, for the respondent, submitted that in the circumstances the order did not undermine the learned magistrate’s finding that the appellant suffered only minor cervical pain for a limited period. While conceding the order was somewhat illogical, the respondent did not concede the order for future out-of-pocket expenses was correct. It was simply an order made upon a concession. In my opinion, the order does not demonstrate error in the learned magistrate’s reasoning towards the conclusions His Honour made, particular with respect to the ultimate conclusion that the appellant suffered no loss of future earning capacity. Even though the finding that the appellant suffered pain referable to the accident for only a limited time informed the ultimate conclusion about future earning capacity, the two conclusions are separate. Even if the award for future outgoings is inconsistent with the former, it is not necessarily inconsistent with the latter.

42. [42]
    The appeal must be dismissed. I am minded to order that the appellant pay the defendant’s costs of the appeal on the standard basis but will consider written submissions on costs received by 4.30 pm on Monday 27 March 2017.