Adsett v Noosa Nursing Home Pty Ltd [1996] QCA 491

IN THE COURT OF APPEAL [1996] QCA 491 SUPREME COURT OF QUEENSLAND Appeal No. 223 of 1995. Brisbane [Adsett v. Noosa Nursing Home P/L] BETWEEN: SHIRALEE MAY ADSETT (Plaintiff) Appellant AND: NOOSA NURSING HOME PTY LTD ACN 009 991 020 (Defendant) Respondent ___________________________________________________________________ McPherson J.A. Pincus J.A. Shepherdson J. ___________________________________________________________________________ Judgment delivered 6 December 1996 Separate Reasons for Judgment of each member of the Court, all concurring as to the order made ___________________________________________________________________________ APPEAL DISMISSED WITH COSTS ___________________________________________________________________________ CATCHWORDS: Personal Injury - quantum - whether irrational refusal to undergo treatment - extent of injury - conflicting video evidence - exaggeration of symptoms - ability to undertake future employment. Counsel: Mr R Douglas QC, with him Mr J McDougall for the appellant. Mr M Grant-Taylor for the respondent. Solicitors: Ebsworth and Ebsworth for the appellant. O’Shea Corser and Wadley for the respondent. Hearing date: 10 April 1996 -- 1 of 23 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 223 of 1995. Brisbane Before McPherson J.A. Pincus J.A. Shepherdson J. [Adsett v. Noosa Nursing Home P/L] BETWEEN: SHIRALEE MAY ADSETT (Plaintiff) Appellant AND: NOOSA NURSING HOME PTY LTD ACN 009 991 020 (Defendant) Respondent REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 6 December 1996 The appellant sued for and recovered damages in the Supreme Court in respect of injuries she suffered in May 1991, in the course of her employment at the respondent’s nursing home at Tewantin. The judge assessed damages at $154,522 and after deduction of the Workers’ Compensation refund, judgment was given in the sum of $98,979.27. Three components of the judge’s assessment were pain and suffering, past economic loss and loss of earning capacity; the appellant challenges the amount awarded under each of these headings as being inadequate and also says that the total is substantially less than the sum which should properly have been awarded. The nature of the injuries which the appellant sustained was of a kind which is notoriously -- 2 of 23 -- 3 difficult to assess, for medical practitioners as well as judges; she sustained a soft tissue injury in the region of her spine. Such injuries often heal well enough in time, with or without treatment, and it is evident that a cause of the appellant’s injuries not having settled has been the possibility of obtaining compensation. But the judge found, and there is no reason to question the accuracy of the finding, that the appellant was not malingering; insofar as her complaints of pain and discomfort were exaggerated, that did not constitute deliberate misrepresentation. The judge took the view and (with respect) plainly correctly, that there was a substantial psychogenic element in the appellant’s condition. Added to the difficulty just mentioned - that in substantial part the appellant’s problems were psychogenic - was the fact that video recordings of the appellant’s activities showed her as being capable of doing substantially more than what some medical practitioners had been given to understand she could do. The judge clearly considered these two elements of the case with care and in detail. Where there is such a substantial subjective element in the complaints made and little to show clinically, much must depend on the judge’s assessment of the appellant’s motivation and personality; in cases of this sort, it is in my opinion particularly difficult for an appellate court to attain a state of satisfaction that the primary judge has wrongly assessed the damages, unless there are specific material errors of fact shown, or the judge has made findings for which the evidence provides no reasonable foundation. The appellant’s counsel relies upon what are said to be specific errors in the primary judge’s findings; the case is not one in which it is merely said that on the findings the results of the assessment are on the whole plainly inadequate. I propose to deal with each of the appellant’s principal complaints -- 3 of 23 -- 4 about the judge’s findings, but it is desirable to preface that by some reference to the evidence. The injuries complained of were sustained on 3 and 8 May 1991. As to the former, the accident report (Exhibit 27) says that the appellant had a sharp pain in the low back and pain for the rest of the day. As to the latter (Exhibit 28) the report says, "Nil immediate complaints of pain but later complained of pain". The judge found, however, that the second incident in fact produced an immediate complaint of pain. A few weeks later, an orthopaedic surgeon (Dr Winstanley) wrote a report about the appellant noting that she had complained to him of cervical and lumbar spine pain which increased in severity; the latter had resolved, but she continued to have pain in the cervical spine. This radiated into her left arm and hand and she also had trouble with her right hand; further, she complained of headaches. Having examined her, the doctor expressed the opinion that she stood "an excellent chance of returning to her pre-accident occupation". The same specialist expressed the opinion on 31 July 1991, some three months after the injuries were sustained, that the appellant had a "sprain type injury" to her spine, that her condition should continue to improve and that she should be fit for work six to eight weeks after the initial review; since that occurred early in June, if the doctor was right the appellant should have been able to return to work in August 1991. That did not occur and when the doctor saw the appellant in September 1991, she had a "major symptom complex within her cervical and lumbar spine areas". The latter complaint is particularly significant, since early difficulty with the lumbar spine had cleared up, the doctor thought, shortly after the injuries were suffered. In September 1991 the doctor thought that the symptoms were becoming worse; the appellant had not been helped by physiotherapy, and had been taking Valium. Dr -- 4 of 23 -- 5 Winstanley could not explain the symptoms of which the appellant then complained in her arms and was of opinion that his findings on examination were inconsistent with the physical examination. He expressed the view - a point the judge thought significant - that the appellant should not be allowed to continue for long periods on compensation. When the doctor reported in the following February, he said that the duration of the appellant’s symptoms seemed to be out of proportion "to the mechanism injury" and to "my physical findings". The judge remarked: "As the months passed the plaintiff presented to her treating doctors with more generalised pain complaining of her left hip which she said ‘gave way’, gross sleep disturbances and a significant depressive element." What has been said sufficiently, I think, indicates the all too familiar character of the results of the appellant’s injuries. It is necessary, however, to mention one other medical aspect and that is the psychiatric opinions expressed. A Dr Rice was of opinion that there was no psychiatric disorder, but "a reaction of anxiety consistent with her predicament and her personality". Dr Mulholland said there was a psychiatric disorder known as "adjustment disorder"; the judge preferred Dr Mulholland’s opinion to that of Dr Rice and also to that of a Dr Hutchinson, who the judge said "wrote a terse report suggesting that there was nothing wrong with her at all". Reference to the report shows that the doctor said something a little more elaborate; I quote part only: "She gives a history of injuring her back . . . and presents a list of complaints that obviously have no anatomical basis and she presents with a lot of complaints of feeling miserable although I did not feel that she was suffering from a major depressive disorder. Just what it is that has upset this woman, she would not tell me, but her problems are emotional and are nothing related to any injury at work, nor is there any reason to -- 5 of 23 -- 6 suspect that her emotional problems have been caused by her work." The judge’s preference for the view that the appellant suffered from a psychiatric disorder, as sworn to by Dr Mulholland, and her Honour’s willingness to connect that to the injuries sustained in May 1991 was, obviously, of assistance to the appellant’s prospects of recovering substantial damages; had the opinion of Dr Hutchinson been accepted, then as it seems to me the damages would have been at a much lower level. But the acceptance of Dr Mulholland’s opinion produced one consequence of which the appellant now complains: that the judge took the view that the appellant, having a psychiatric condition which had not been treated, had behaved unreasonably in refusing treatment. I turn now to deal, in order, with the appellant’s specific complaints about the primary judge’s assessment, as far as they seem to require discussion. Refusal to undergo psychiatric treatment In the appellant’s written outline, it was said that it was not open to the primary judge to find that the appellant’s refusal to undergo psychiatric treatment was irrational because that was "neither pleaded nor argued at the trial by the defendant". In my opinion, the record shows that there was a considerable amount of evidence relevant to this topic. On the assumption that it was not the subject of argument, still the judge was not obliged to ignore the relevant evidence. It is not necessary to be comprehensive. Dr Rice, whom I have mentioned, made a number of references, both in written and in oral evidence, to the topic, speaking of the appellant’s "lack of -- 6 of 23 -- 7 compliance with any meaningful programme to rehabilitate". Dr Mulholland encouraged the appellant to continue treatment with a psychiatrist, Dr Eckersley, who said that the appellant was very resistant to seeing a psychiatrist and only came because the Medical Board had insisted that she do so. She was seen by Dr Eckersley on 1 June 1992 when she was "still very resistant" and cancelled further appointments. In February 1994 she refused to discuss treatment of her condition and "presented as a woman who had completely given in and given up". When Dr Nash, a rheumatologist, suggested that the appellant undertake what he called a "back pain programme" there was, again, no co-operation. On the finding that the judge made, which is not challenged by the appellant, that there was a psychiatric condition, a question necessarily arose as to its likely future course. Some such conditions are no doubt untreatable, but it was no part of the appellant’s case and there was no evidence to support the view that the disorder Dr Mulholland diagnosed could not be helped. It was a matter for the appellant whether or not she chose to continue her psychiatric treatment; but the effects of her refusal to do so, insofar as it has worsened her prospects, cannot necessarily be laid at the door of the respondent. It is true that there is no mention of this aspect in the pleaded defence. It is not the practice to plead in detail, with respect to the defendant’s case on medical matters, unless they are points which may take the plaintiff by surprise. Here, there could be no question of surprise because the desirability of treatment and the appellant’s unwillingness to undergo it were topics amply canvassed in the medical reports. -- 7 of 23 -- 8 A further argument advanced under this heading was that the judge over-emphasised this aspect, in her assessment. This appears to me to be a curious complaint. On the medical evidence the initial injuries were not initially thought to be of great severity and were of a kind which one would have expected to settle within a few months. Reading the judge’s reasons as a whole, it is true that her Honour must have regarded the mental element, as opposed to the physical element, of the appellant’s condition as a major factor; in my opinion that was the only rational view of the case. As she presented at the trial the appellant was virtually unemployable, but that was a result of her psychological status; on the findings, the physical ailments, although to some extent disabling, would have left the appellant capable of working. In my opinion the judge took a view of the appellant’s case which was by no means ungenerous; a less sympathetic view, which was open but not adopted, was that the principal cause of the "bizarre" and fluctuating complaints which the doctors reported was not the relatively modest injuries suffered in 1991, but the pendency of the litigation. Her Honour remarked: "I do not disregard the views of Drs Rice and Hutchinson that in work related and motor vehicle third party related incidents there is a tendency to prolong the pain, albeit unconsciously, because of the attention receiving and compensation focusing aspects of such incidents." Part-time work The judge took the view that if the appellant had accepted treatment, in 1991, when she should have done, there was some prospect of rehabilitation, although none of returning to heavy labouring work. When assessing past economic loss, the judge took into account particularly the factor that had psychiatric treatment been successful - -- 8 of 23 -- 9 " . . . there was a good prospect of rehabilitation and return to the workforce doing lighter work, perhaps as a part-time shop assistant she may have been able to earn $150 net per week." When considering future economic loss, the judge acted on the basis that the appellant - " . . . will be motivated to do some light work after this litigation has settled down. I expect that it will be sporadic in nature . . . " The appellant’s argument was that there was an onus on the respondent to call evidence that the appellant had a capacity to do work and that she could have obtained work. This was said to follow from Thomas v. O’Shea (1989) A.T.R. 80-251. The argument that this supposed onus was unsatisfied was not I think strongly pressed at the hearing before us. There was evidence to support the judge’s view that if treated, the appellant’s condition could well have improved to the point at which she could undertake some work. But no-one was called to say that particular sorts of work would have been available to the appellant, in the condition which she would have reached, if successfully treated. It is difficult to imagine how any witness could have spoken, sensibly, about that subject. The fact that one could not be precise about the extent of the improvement which, on the judge’s view, could well have taken place, had the appellant been treated when she should have been, made it impossible to deal with the topic other than broadly; her Honour no doubt used general knowledge of economic conditions and the availability of unskilled employment in making her assessment. But this argument fails, in my view, for a simpler reason; counsel for the appellant conceded that to throw any onus on the respondent the appellant had to prove that she had really tried to obtain employment. The judge found that friends of the plaintiff had come to her with proposals to work, but -- 9 of 23 -- 10 she was "unable to persevere" with them. In most instances she worked only for a day or two, the only important exception being that she spent some months on a milk run which she and her husband bought; she found it "too difficult". These attempts, lacking in persistence, must be considered against the background that the video showed the appellant to be capable of rather more effort than she claimed to be able to exert. Future economic loss The argument under this heading was that the primary judge should not have discounted her future economic loss by as much as she did, because the appellant was virtually unemployable. The judge assessed the appellant’s loss of income, assuming the appellant to be totally incapacitated, at $201,698 and reduced that to $118,398 to allow for the earnings which the appellant could have made if she had undergone treatment. Her Honour then reduced that by a further $8,000 to allow for light work undertaken after the litigation. The point made was that the $8,000 was a sum which should have been included in the first reduction; it was suggested that the judge should not have made the further $8,000 reduction. It seems to me possible that there is no such error as that contended for; the judge may have intended the $8,000 to be a separate allowance for sporadic work; but on the whole I am inclined to think that the appellant’s contention should be accepted and that the case should be approached on the basis that an additional $8,000 was wrongly taken from the prima facie allowance for future economic loss. The judge then discounted the figure so arrived at by some 37% for various factors, arriving at an allowance of $70,000, a little more than a third of the gross figure. The argument was that the final figure of $70,000 is too low and that the "massive" discounting engaged in is unusual and not justified -- 10 of 23 -- 11 by the evidence. It is impossible to be dogmatic, but a study of the judge’s findings does not, to my mind, produce any conviction that the figure of $70,000 loss is unreasonably low. I have suggested above that the case is one in which much depended upon the judge’s assessment of the appellant. There was exaggeration in some respects and the appellant’s pre-accident position was by no means as good as she had suggested; the record showed that she had suffered from persistent oedema, some domestic violence, an ulcer and a depressive episode. To return to the error which should be accepted as having been made, the figure of $8,000 reduces, after discounting, to about $5,000 and that would not in itself be enough to warrant an alteration in the award: Elford v. F.A.I. General Insurance Company Limited [1994] 1 Qd.R. 258 at 265. Additional considerations As a means of justifying the judge’s ultimate award, despite the apparent error to which I have referred, the respondent argued that the judge should not have found that there was any injury to the cervical spine. The judge noted in her reasons that there was no complaint about that initially; the appellant accepted, in her evidence, that on 9 May 1991 she made no complaint of neck pain. When she saw Dr Winstanley, the orthopaedic specialist whose opinions are discussed above, some weeks later, her principal complaint was of pain in the cervical spine. As I have mentioned, the doctor recorded that her lumbar spine symptoms had resolved. When questioned about this the doctor said -- 11 of 23 -- 12 that: "Symptoms can be delayed with injuries within the spine in certain areas. One would expect that if there is a significant injury enough to produce a nerve root irritation, that they would have complained of symptoms immediately." Dr Nash, the rheumatologist, saw the appellant on 23 July 1991 (she suffered her injuries in May) and reported neck symptoms, although in his next report, given in September, he implied that the initial problem was in the thoracic spine. In his oral evidence Dr Nash said that he first noticed progression to involvement of the neck on "16 March" - presumably 16 March 1992. The general practitioner’s notes of 9 May 1991 contain no mention of a neck injury; that does not appear to have been mentioned until 22 May 1991. On the evidence, it seems inescapable that the claimed neck pain was not suffered initially and it was, as it appears to me, open to her Honour to have concluded that any trouble with the neck either existed before the injuries complained of or was due to some cause unrelated to those injuries - for example, an entirely psychogenic cause. But the primary judge did not draw these conclusions and there is not, in my opinion, any real justification for interfering with her Honour’s view of the matter. Conclusion I am prepared to accept, although not entirely without doubt, that there is an error in the reasoning affecting the judge’s estimate of future economic loss, to the extent of about $5,000. But the $70,000 figure ultimately accepted is merely an estimate based upon a considerable variety of factors and I am unconvinced that it is too low an estimate. -- 12 of 23 -- 13 More generally, I have come to the conclusion that the judge’s total assessment of damages has not been shown to be insufficient, on the findings her Honour made. It is true that, taking the psychological component of the appellant’s difficulties into account, her total state appeared to be fairly wretched at the time of trial; but the judge’s approach, which was in essence to treat the appellant’s complaints rather sceptically, and make what could be described as a conservative award, was one which was well open, on the evidence. I would dismiss the appeal with costs. REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered 6 December 1996 I agree with the reasons of Pincus J.A. for deciding that this appeal should be dismissed. REASONS FOR JUDGMENT - SHEPHERDSON J. Judgment delivered 6 December, 1996 I have had the benefit of reading the reasons for judgment prepared by Pincus JA. I agree with him that the appeal must be dismissed and generally for the reasons which he gives. However, there are some matters on which I should like to add further comments. The appellant was born on 18 February 1960. The learned trial judge concluded (inter alia) that from an orthopaedic point of view the appellant sustained soft tissue injuries to her spine - being quite severe musculo-ligamentous strains in her spine on 3 May and 8 May - the symptoms of which manifested themselves in pain immediately in the thoracic and lumbar areas and after a few days in the cervical spine and that the strains were productive of severe disabling pain for three to six months. In her assessment of the component for pain -- 13 of 23 -- 14 and suffering past and future ($35,000) the learned trial judge said that before sustaining her work related injuries the appellant did not enjoy good health, that she suffered from chronic oedema and an ulcer which flared-up from time to time, that even so the appellant had a busy outgoing life involving her children's activities (she had three aged 17, 13 and 10) social sport and other social interactions, that her marriage had its stresses but that they were being managed, that the change to the appellant's lifestyle after the 1991 injuries was significant, that she was unable to control her family and her social environment, that she suffered severe pain initially which was directly attributable to the sprain in her back and thereafter as a consequence of psychiatric and psychological factors triggered by those sprains, that she has been able to do some activities but in a much more limited fashion and that had she received treatment successfully it is likely she would still have been precluded from the vigorous recreational activities that she enjoyed. The appellant's counsel submitted to this court that the effect of the orthopaedic evidence was that as a result of the May 1991 injuries the appellant had permanent partial disability relating to both her cervical and lumbar spine areas of 20 per cent loss of bodily function - the learned trial judge made no specific finding on this matter. To support this submission Mr Douglas QC relied on the learned trial judge having said in the course of her reasons that she accepted the opinions of Doctors Nash and Winstanley on the aspect of the appellant's inability to return to heavy labouring work such as nursing. He argued that a woman the plaintiff's age with a 20 per cent loss of bodily function was entitled to a much greater award than $35,000 on this head of damages. It is true that in his report dated 14 March 1994 (Exhibit 6) Dr Winstanley, an orthopaedic surgeon who had previously examined and reported on the appellant, said "your client has permanent -- 14 of 23 -- 15 partial disability relating to both her cervical and lumbar spine areas of 20% loss of bodily function". However, at trial Dr Winstanley was shown a video said to have been of the plaintiff performing various physical tasks. Part of the video showed a woman shovelling from the back of a trailer. Whether that woman was the appellant was disputed and the learned trial judge found that the person shovelling was not the appellant. This finding is challenged and I shall come to that later. On the assumption that the person shown shovelling was the appellant, Dr Winstanley, in his oral evidence, said the amount of disability would decrease to 10 per cent loss of bodily function. A little later he said "if all of the footage on the video was Mrs Adsett, I was surprised to see her shovelling, yes" ... "If that was her doing the shovelling it wasn't consistent with my findings ..." "The findings, or the history given to me by the patient was that she was unable to perform actual rotational loading to her spine". A little later, on the basis that it was the appellant who was shown doing the shovelling he said "If a person could perform that activity, in my opinion, she could perform domestic activity". Although the learned trial judge resolved in favour of the appellant the dispute at trial as to the identity of the shoveller, it is apparent from the evidence of Dr Nash, particularly when he viewed the video and ignored the portion showing a woman shovelling, that the appellant's performance of other tasks as shown on the video were inconsistent with her presentation to him on examination. Dr Nash is a physician rheumatologist, who had given a number of written reports on the appellant. In his evidence he accepted that patients have good days and bad days and he said:- "the first series on the video where with her husband she was working on potting plants and trees, I am surprised at some of the ease with which she was performing those duties in comparison to how she always presented to me ... From what I could see on the video she had a remarkable degree of freedom about some of the activities she was performing; in particular, twisting, in particular, prolonged periods bent over." -- 15 of 23 -- 16 He made it quite clear that by "twisting" he was not referring to the shovelling out of the back of the trailer. In cross-examination he was asked:- "May I suggest to you that for her to be undertaking the bending and twisting we saw towards the end of the video was that prolonged episode of hanging out of the washing - you recall that" He answered "Yes". Question "That that would be inconsistent with the presentation". Answer "Not if she's having a good period - the thing that struck me was the ease with which she performed those - not particularly the washing but the potting and the lifting and moving trees. The larger tree obviously quite heavy or a little bit heavy. The ease with which she performed those activities". A little later he said - "The freedom of movement is the thing to look for. Hanging washing she could do, if she paid for it with pain later that day, the next night or the next day even if it was uncomfortable at the time but she appeared to move quite freely through that early part of the video". Question - "She did did she not in washing the windows in that brief footage we saw of her washing the windows". Answer "If that was her yes". Question - "Assume it was her. Those movements are entirely inconsistent with her presentation to you, the axial twisting I suggest". Answer "I would expect patients with the degree of disabilities she described to me to do that particular movement on her knees with her back straight". Question - "Which she did not - that's true is it not". Answer "Yes". Thus, from one of the two doctors whose evidence the learned trial judge accepted on the appellant's inability to do heavy labouring work she had Dr Nash expressing some surprise at the ability of the plaintiff as shown on the video to perform certain physical tasks. Dr Nash did not nominate any percentage of loss of bodily function and Dr Winstanley was never asked what alteration, if any, to his 20 per cent opinion he would have made if he accepted that the woman shown in the video performing all the physical tasks (other than the shovelling) was the appellant. The medical opinions I have so far mentioned, and more particularly the opinion as to the 20 per -- 16 of 23 -- 17 cent loss of bodily function on which Mr Douglas QC relied must be viewed against the backdrop of the following findings made by the learned trial judge:- 1. "The activities by the plaintiff shown on the video (not the trailer shovelling) were not surprising for people who saw her regularly. It was something of a revelation to the medical profession. I have concluded that there was a difference between what the plaintiff conveyed to them that she was able to do and what she actually was able to achieve each day. That is not to say however that the plaintiff was malingering. None of the medical evidence suggests that." 2. "Although the plaintiff has exaggerated her symptoms to the specialist medical profession her family and friends have seen a consistent picture over a number of years. I propose to take into account the fact that the plaintiff appears to be able to do more than she said she could." In my view, these two findings, and especially the latter show that the appellant did not create a favourable impression with the learned trial judge and show that she did exaggerate her disabilities. The appellant was not an entirely credible witness. It is important to bear in mind that the written medical reports included medical opinions based on the doctors examinations of the plaintiff and what, subjectively, the plaintiff told them were her disabilities. It must not be surprising therefore if, in the light of the above two findings the learned trial judge, in assessing damages for this component were thought by the appellant to be close fisted rather than open handed. With those two findings in mind, it cannot be accepted that the appellant has a 20 per cent loss of bodily function as a result of her spinal injury. As I have said the learned trial judge made no specific finding as to the percentage disability in this area. The matter has been left up in the air. At best for the respondent it is 10 per cent and at best for the appellant 20 per cent. Before dealing further with this aspect of the plaintiff's injuries, the finding by the learned trial judge that it was not the plaintiff who was shovelling from the back of the trailer is challenged by the respondent. The video was recorded by Mr Gill over a period of about 2 years - its duration was about -- 17 of 23 -- 18 2 hours. The learned trial judge said:- "The most controversial part of the video shows a person shovelling from the back of a trailer. It is taken from a considerable distance away (Mr Gill estimated about 150 metres) and it is not possible to identify the plaintiff as the person who is doing the shovelling. She does not agree that she is depicted and neither do her mother or her friends who were witnesses. Her husband was not asked to identify her. One of the witnesses Karen Vujcich said that it was possible that the person in the back of the trailer was herself. Her de facto husband Mr Bruce Perry regularly assisted the plaintiff and her husband in landscaping work on their new property. Ms Vujcich assisted him everyday that he worked at the property. The plaintiff said that on an occasion she had stood in the back of the trailer and assisted getting some soil from it. Mr Gill said that he was confident that the person shown doing the shovelling on the video was one and the same as the plaintiff. However he had taken part of the video showing a woman backing the plaintiff's motor vehicle down the driveway with the door open twisted around. It was clearly included in the video because it was thought to be the plaintiff - but the plaintiff said that it was her daughter. It was not suggested that this was incorrect. I do not find that the plaintiff's witnesses were prevaricating as was suggested by Mr Grant-Taylor. The figure shovelling was distant and fuzzy and for the first part one witness thought it was a male. The male seen was recognised as Mr Perry, Ms Vujcich's de facto husband. I thought that the woman who was shown shovelling the soil from the back of the trailer was physically unlike the plaintiff in that she was a much more sinewy person. The plaintiff had put on a considerable amount of weight from shortly after the time when she sustained her injury and the woman depicted doing the shovelling was certainly an athletic figure and more so than other pictures of the woman who was acknowledged to be the plaintiff in the video at much the same time. Accordingly I do not regard Mr Gill's evidence as compelling. I am not persuaded that the woman shovelling was the plaintiff." Mr Grant-Taylor, counsel for the respondent submitted that the learned trial judge's finding that Mr Gill's evidence was not compelling was made without it ever having been put to Mr Gill that the woman shovelling was not the appellant. Thus he submits Mr Gill's evidence on this aspect is uncontradicted and should not have been rejected. In my view the evidence of Mr Gill in which the learned trial judge mentioned that Mr Gill was "confident" that the person shown doing the shovelling was one and the same as the plaintiff should not have been rejected. I have read Mr Gill's evidence as appearing in the transcript. It was never put to -- 18 of 23 -- 19 Mr Gill that the person shown doing the shovelling was not the appellant. When one reads Mr Gill's oral evidence his identification of the appellant is quite credible. In evidence in chief he denied relying on looking through a video viewfinder to identify a person and said he used 10 x 50 binoculars to confirm the identity. When asked whether he used the binoculars on this particular occasion he said:- "I can't recall if I did on that occasion but I would as a matter of course. That was just a standard to confirm identity. I had no troubles identifying the plaintiff, as the plaintiff bears a striking resemblance to a person I know personally, and that did assist me a great deal" Question: "And was that the case in respect of each of the instances to which I have referred." Answer: "Yes it is." In cross-examination he agreed that the video went on for about 2½ hours or so, he said he would have been 150 metres away from the lady shovelling out of the back of a trailer into the wheelbarrow, and that to the naked eye it would be very difficult to identify the person. He agreed that with ten times magnification the object viewed will be brought up to a distance of 15 metres at the most. Still in cross-examination he was asked "I suggest that you might not on every occasion have used your binoculars to check that it indeed was her". He answered "That could be so. On some occasions I would have driven past her house going to a location and would have had a view as I drove past the house which was quite close. If I was in doubt I would most certainly use binoculars. It's just a standard procedure. If I was in doubt of identity I would most certainly use binoculars. In re-examination he said he always took his binoculars with him "on these field trips". In my respectful view Mr Gill should have been given an opportunity to deal with the suggestion -- 19 of 23 -- 20 that the woman shovelling from the trailer was not the appellant (Browne v. Dunn (1893) 6 R 67 at 76- 77; Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation (1983) 1 NSWLR 1, in which Browne v. Dunn is explained; see also Precision Plastics Pty Ltd v. Demir (1975) 132 CLR 362 at 370-1). Mr Gill was not given that opportunity and in my view his evidence as to his several identifications of the appellant on occasions over some two years should have been considerable weight. The appellant herself was cross-examined on this particular topic. In cross-examination she recognised the trailer as "ours", she recognised the car and the clothesline and the dog and when it was put to her that it was she who was shovelling she said "I honestly couldn't say yes that is me." There was an overnight adjournment and next day when her cross-examination continued the following occurred. Q. Are you able to say now with the benefit of having slept on things that the person who was doing the shovelling from the back of the trailer was you? A. No, it is not me. Q. I beg your pardon. A. No, it is not me. Q. Are you saying it is definitely not you now? A. Yep. Q. As opposed to saying you don't know one way or the other. A. Because I don't own a white pair of shorts. Q. Is it your evidence that the person who was shown in the video yesterday doing the shovelling out of the back of the trailer was not you. It is not just the case that you don't know one way or the other. Are you saying that that was definitely not you? -- 20 of 23 -- 21 A. That I don't think it is me. No Q. You don't think it is you? A. No. . . . . . . . . . . Q. Are you saying that you wouldn't be able to do what we saw in the video yesterday being done by that person who was shovelling material out of the back of a trailer? Are you saying that you couldn't do that? A. No, I'm not saying that at all. Q. Are you saying that you could do that? A. I could have a go - I try to do that yes, for a short time, yes. She then went on to say that she could not shovel material out of the back of a utility for 20 minutes without a break. In saying that because the rule in Browne v. Dunn was not complied with in the manner I have indicated, I should add that I bear in mind the learned trial judge's criticism of Mr Gill's identification of the appellant in her comment concerning a portion of the video being as the appellant said in evidence, of the appellant's daughter. Her Honour said that that part of the video "was clearly included in the video because it was thought to be the plaintiff but the plaintiff said that it was her daughter. It was not suggested that this was incorrect." Again, with respect I do not think the learned judge should have made such a comment without having given Mr Gill an opportunity to deal with that matter. The transcript shows he was not given that opportunity. I realise that when the learned trial judge in the above recited comments found that the appellant's witnesses were not prevaricating this court is faced with a finding of credibility in -- 21 of 23 -- 22 circumstances where she enjoyed an advantage over this court. This finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" (Devries v. Australian National Railway Commission (1993) 177 CLR 472 at 473). I now recount the relevant aspects of the appellant's witnesses. One of the witnesses, Mrs Fitton, when shown the relevant part of the video, said: "Well I wouldn't think that would be her if her back was . . ." Another witness, Karen Vujcich said, in evidence in chief, when asked if she could recognise what appeared to be a female person: "No I can't - not clearly. It is not close enough to see clear." A little later she was asked "Are you able to say who that person is positively on that film?" She replied: "No, no. It is too far away to . . on profile, sideways on, yes, it does look like me, but, no, it is not clear enough to say definitely yes it is me." She described the clothes worn by the woman as "the right sort of clothes I would wear if I was working". In cross-examination Karen Vujcich agreed: (a) that she had no recollection of shovelling material out of the back of the trailer or elsewhere on the Adsetts' property; (b) that it could be Mrs Adsett that is shown doing the shovelling; (c) that there was nothing about the video to cause her to say it was definitely not Mrs Adsett. Mandy Doreen Webbe said: "I don't think it's Shiralee - I can't actually see who it is". A little later she said: "It's not." -- 22 of 23 -- 23 Mavis Jones, the appellant's mother, was shown the relevant part of the video. She identified a dog as belonging to the appellant and her husband and when put to her that it was her daughter doing the shovelling she replied: "Doesn't look like it to me." In my respectful view the above evidence of witnesses other than the appellant could not be called positive insofar as it might tend to suggest that the appellant was not the woman shovelling. In my view, had the learned trial judge given Mr Gill's evidence on identification the weight which it deserved the evidence of the appellant and her witnesses became glaringly improbable. The plaintiff's evidence which I have set out was in my view vacillating and uncertain, and I would set aside the finding that the appellant's witnesses were not prevaricating and the finding that the woman shown shovelling was not the appellant. In short, in my view the evidence of Mr Gill identifying the appellant as the woman shovelling should have been considerable weight and the learned trial judge should have found that the appellant was the shoveller. Thus, at the end of the day, once it is accepted that the appellant was the person shown in the video as shovelling from the back of the trailer the percentage of bodily injury resulting from the spinal injuries was 10% and not 20% and such a matter must have some reasonable impact on the quantum of the assessment of the appellant's damages for pain, suffering and loss of amenities. If it be accepted, as I believe it should, that the percentage bodily injury was 10 percent, then it could not be said that the $35,000 award for pain, suffering and loss of amenities was other than rather generous. -- 23 of 23 --