CATCHWORDS DAMAGES - appeal against quantum of award for personal injuries - allegations of fraud and malingering - cogent evidence supporting trial judge's finding that respondent suffered depression as result of accident PRACTICE AND PROCEDURE - role of appellate court Paterson v Paterson (1953) 89 CLR 212 Warren v Coombes (1979) 142 CLR 531 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 BETWEEN : THE NOMINAL DEFENDANT Appellant AND : VICKI_ DRAKOPOULOS Respondent No. ACT G.18 of 1986 CORAM : Davies, Everett and Miles JJ 12 September 1986 Canberra CA eae 6 mafia erm eT RE Sie a Go eentmiyt —eerenetpcete NE eee ne IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY ) ) AUSTRALIAN CAPITAL TERRITORY ) ) ) ) GENERAL DIVISION JUDGES MAKING ORDER DATE OF ORDER WHERE MADE THE COURT ORDERS THAT No. ACT G.18 of 1986 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN 3 THE NOMINAL DEFENDANT Appellant AND : VICKI_ DRAKOPOULOS Respondent MINUTE OF ORDER Davies, Everett, Miles JJ 12 September 1986 Canberra The appeal be dismissed with costs. Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G.18 of 1986 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN 3 THE NOMINAL DEFENDANT Appellant AND : VICKI_DRAKOPOULOS Respondent REASONS FOR JUDGMENT CORAM : Davies, Everett and Miles JJ 12 September 1986 THE COURT : This is an appeal from a decision of a Judge of the Supreme Court of the Australian Capital Territory awarding damages to the respondent, Vicki Drakopoulos, for injuries and loss suffered by her as a result of a motor vehicle accident which occurred on 20 June 1983. The appeal is limited to the issue of damages and, although anumber of individual points were argued, the substantive allegation is that the learned trial Judge ought to have found that the respondent was not a person of truth, that she was a person who defrauded the social welfare system in this country and that she was a malingerer. It was submitted by Mr J. Poulos, counsel for the appellant, that general damages and economic loss ought to have been calculated accordingly. At the time of the accident the respondent was 22 years of age and was single. She had been born and lived in this country until the age of 8 and then lived in Greece for 8 years. She returned to Canberra when aged 16 and after 3 years' schooling obtained the Higher School Certificate. In 1980, she undertook a secretarial course at the Reid Technical College and in 1981 she joined the Health Department as a secretary. In the middle of 1982, she resigned from that department. She went to Greece for a few weeks. After her return from Greece, the respondent, on 31 August 1982, made application for unemployment benefits. She received unemployment benefits for approximately 4 months thereafter, notwithstanding that, on 22 October 1982, she obtained employment at Wanniassa Shoprite, though whether as a full-time or as a part-time employee is a matter of doubt. The motor vehicle accident occurred on 20 June 1983, when the respondent was travelling home from her work at Shoprite. Subsequently, she received weekly payments of workers' compensation through her employer's insurance company, OBE Insurance Limited, and received those payments until early 1986. On 21 December 1983, the respondent lodged a claim for unemployment benefits and a statement in support thereof and ent eine ee ee! therein falsely stated that she had been involved in a car accident on the way home to Kambah from Melbourne. She omitted, we assume fraudulently, to disclose her income by way of workers' compensation. The respondent thereafter received unemployment benefits until early 1986. There were other fraudulent aspects of the respondent's activities. When she made the above application for unemployment benefits, the respondent was working for 3 weeks as a waitress at the restaurant Ruffles and in receipt of $190 per week from that employment. Later, in May 1984, she worked for 2 weeks at Wanniassa Shoprite. Subsequentiy, in about September 1984, the respondent commenced work for a family friend at Waramanga Shoprite. She worked 4 hours a day, 5 days a week until some time in 1985, probably until about June 1985. During the whole of this period she continued to receive unemployment benefits and workers' compensation. The above facts show that the respondent defrauded the Social Security Department and her employer's insurer and that she first received unlawful benefits in 1982, before the accident occurred. Moreover, she had reason to malinger, for, after the accident, she received weekly payments of compensation, from December 1983 she received unemployment benefits and, by working part-time or with a person such as the friend at the Waramanga Shoprite, she was able to supplement her income. But to say that is not to say that his Honour was wrong in awarding damages. His Honour was aware of and took into account the matters we have mentioned. His Honour correctly took the view that he should not entirely reject the respondent's evidence but should approach it with caution. The principal issue in the appeal is whether his Honour was correct in finding that the respondent suffered depression as a result of the accident and that that depression incapacitated her for work. His Honour said, "Her principal claim relates to a depression which she says she suffered following the accident. rt is important to note that she suffered from migraine headaches before the accident and, indeed, claimed in an application made to the Commonwealth Employment Service that she left her job which she had earlier had with the Department of Health because of severe migraine. She in fact went to Greece for a holiday on leaving that employment. . I am satisfied that the plaintiff suffered depression which first manifested itself some time after the accident. This I think was due to what is described in the medical evidence as post-concussional syndrome. I formed the view that although she had previously had migraine headache the depression she suffered following the accident interacted with her symptoms so as_ to increase the severity of the headaches and the headaches increased the depression. In reaching that conclusion I have taken into account particularly the comment made by Dr Robbie, another consultant psychiatrist, who examined the plaintiff on behalf of the defendant and said :- 'I have no reason to doubt that she was depressed, especially considering other things in her life. Nor have I any reason not to conclude that her headaches would have contributed to her depression, although her depression most certainly would have contributed to her headaches I would have thought as well.' I therefore attribute the depression to the accident. However I am also satisfied that the depression from which she now suffers is much moderated." er a a a ee te RN te ha Ce PN a tt RECN Se Subsequently, after referring to the respondent's fraud, his Honour said, ",.. The result has been that I am not satisfied that the degree of her depression is as great as she alleges. I think that Dr Robbie has assessed her with considerable accuracy in his report. Nevertheless I think it appropriate to allow some short period during which the remains of her depression can be worked out and she can resume her normal life." As to the respondent's incapacity, his Honour said, "Sometime early in 1984 the plaintiff gained employment as a waitress ina cafeteria at the Belconnen Mall. While there she earned, she said, $196 or $198 per week after tax. She found after three to four weeks that she could not cope and she gave up the work. In about May 1984 she got work as a check-out operator at the Wanniassa Supermarket. There she was paid $220 per week after tax. Initially she managed but after about two weeks she found that she was again unable to cope. She was becoming dizzy, and found herself unable to stand for a tong time and had headaches. Additionally she was getting very depressed. She gave up that work after about two weeks. Then on a date which I find to have been in September 1984 she got a job assisting the accountant at the Waramanga Shoprite Supermarket. She worked there from 9.00 each morning until 2.00 each afternoon and was paid $80 per week gross. She continued in that work until June 1985. She said that at the beginning she worked every day but that then there were times when she had to stop work for one day and continue the next day. It was she said, 'on and off again'. She said that most of the time she was there she was putting up with headaches and trying to do her best. Again she found herself unable to manage and left that work. She did seek employment as a waitress with a relative in Brisbane some two or three weeks ago but again found herself unable to cope. She said she was getting very exhausted and had to take breaks and felt very frustrated and confused." Only one medical practitioner, who reported on behalf of the appellant, expressed the view that the respondent was a Malingerer. Dr E.J. Cassar reported on 29 July 1985 that "In summary it is my opinion that the accepted injuries and disabilities as documented in my previous reports stabilized and in spite of the ongoing complaints, I do not consider that any current disability is at all related to the said accident of 1983 but rather would have to he explained on other reasons including malingering. Dr W. Knox, consultant psychiatrist, who reported on behaif of the respondent, gave a lengthy report which included the following information : "Psychometric testing points towards psychological impairment of your client's intelligence and memory, largely due to depression. There has been marked psychological decompensation by your client in the face of her continuing pain. Your client suffered no pre-accident personality disturbance. Not having experienced significant incapacity before however your client has not been able to cope with her present disability at all welli She has fallen into a hopeless, helpless pattern of avoidance. Given that your client's physical and psychological symptoms have already troubled her for two years, I expect that she will take several further years before she is able to re-establish a more normal life pattern. Your client must make a firm attempt to rehabilitate herself if she is to avoid drifting into a long term pattern of negativity and helplessness." Dr Knox gave oral evidence at the hearing to like effect, though he agreed that he could have been mistaken. Dr Knox gave this evidence : "Well, if in fact from December 1983 at two weekly intervals she has declared herself willing and capable of undertaking employment, that would have to affect your view of her at this stage, would it not?~--Well, what she has told me otherwise may still be true, if as you said before, that she was making some claims for unemployment benefits it may ~ I presume it was intimately linked up with those arrangements - but it may be that indeed she was able to work and had misled me, or in fact that she was not able to work and had misled other individuals." Dr Gytis Danta reported on 21 August 1985, inter alia, "Whilst she was a shop assistant at the time of the accident, she did not work for about a year and then went to part-time bookkeeping. It was the depression and the aifficulty with mental processes and concentration which is almost certainly part of the depression, which made her give up work about two months before I reviewed her. All the above are direct consequences of the accident, and the prognosis is poor since she has now gone two years or so since the time of the accident and there is no very significant improvement." Dr Raymond L.G. Newcombe, a neurosurgeon, referred to the respondent's depression in his report of 4 June 1984. Dr Brian M. Andrea reported, inter alia, "Her main problem appears to be depression and headaches. The headaches are typical of migraine and respond somewhat to treatment for migraine and I do not think they can be blamed on the accident." The medical practitioners who reported on behalf of the appellant, apart from Dr Cassar, were likewise of the view that the respondent suffered from depression. Mr Tom Sutton, a clinical psychologist, reported, after having the respondent undertake a number of tests, ",.. Depression of clinical dimensions is present and this is sufficient to affect cognitive performances as obtained on present testing." Dr Colin J. Andrews, consultant neurologist, reported on 3 September 1985, "Her predominant problems are psychogenic and also probable depression. Her organic problems wouldn't prevent her from continuing to work." And, finally, Dr G.A. Robbie, a psychiatrist, gave a very long and careful report, dated 30 January 1986, which included the information we have already mentioned. Dr Robbie's report supports the view that, subsequent to the accident, the respondent suffered from a degree of depression, withdrew somewhat from ordinary life and was, to use his expression, "perhaps becoming a little afraid of the world in a general sense". Such a picture of the respondent was also given in the oral evidence of the respondent herself, of her mother, Mrs Angela Drakopoulos, and of a friend, Mrs Xeny Ellis. Mrs Drakopoulos said that, prior to the accident, the respondent was "full of life" but that, after the accident, she "Change from a different person, crying for nothing, she is not happy, locked up inside her room, she no want to see any friends any more. ..-She talk to everyone but she no like to go outside, you know, like before to parties or anywhere, you know." Mrs Ellis said that, prior to the accident, the respondent was "A normal 18 year old, friendly, happy, and expressing herself in a normal way like my daughter, like other girls. --. Very friendiy, yes.", but that, since the accident, she had been "Very withdrawn, very shy, she does not go out with the girls as often as she used to, she says that she is old and she does not feel she wants to go out. ... She is withdrawn, she does not mix in conversation as much as she used to. ...she is no good any more. She does not feel that she is like a normal person. She is not healthy and she cannot do things that she would like to do." On the footing of this material, the learned trial Judge found that the accident had led to depression in the respondent and he concluded that it was appropriate to take into account a short period after judgment during which the remains of her depression could be worked out and she could resume a normal life. Plainly, there was cogent evidence before his Honour to support that view. In our opinion, no ground has been shown for interfering with his Honour's conclusion. To successfully challenge his Honour's view, it would be necessary for the appellant to show that his Honour's conclusion as to the reason why the respondent took employment after the accident for only limited periods of time was wrong and that the Court should substitute another view of the facts for that stated by his Honour. To come to this view, it would be necessary for the Court to form an opinion that the respondent did not suffer from depression but was a malingerer who was making more money as a result of her fraudulent claims than she could do if she returned to work. Yet his Honour was in a much better position to judge these matters than is this Court. His Honour saw and heard the witnesses. A conclusion such as that which Mr Poulos has asked this Court to come to ought only to be arrived at ata trial where the credibility and responses of the witnesses can he adequately evaluated. Thus, Dixon CJ and Kitto J, in Paterson v Paterson (1953) 89 CLR 212, after a detailed examination of the authorities, said, at p.224, "When the rules, which are formulated in the foregoing cases with such variety of detailed expression but with such identity of substance, are applied to the present case they lead almost inevitably to the conclusion that this Court must abide by the finding of Barry J, that is unless it 10. is vitiated by the erroneous admission of the evidence to which the respondent and co-respondent objected. The learned judge's estimate of the respondent and co-respondent was of first importance. His assessment not only of the general credibility of the witnesses for the petitioner but of the reliability of their detailed observation could hardly but be decisive. These are matters in which his opinion could not be reversed by a court of appeal notwithstanding its undoubted jurisdiction to re-examine the whole case." The present is not such a case as was Warren v Coombes (1979) 142 CLR 531, where, at p.551, Gibbs ACJ, Jacobs and Murphy JJ enunciated the principle that ",..in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge." For these reasons, no ground has been shown for interfering with the view taken by the learned trial Judge as to general damages. Nor has any ground been shown to interfere with his Honour's finding as to economic loss. His Honour took into account the matters we have mentioned. He considered the respondent's evidence with caution and caiculated her loss of income accordingly. Mr Poulos aiso submitted that the damages were excessive. However, the principle to be applied is that stated in Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 at 369, by Gibbs J, ",.. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered. ...". ll. In our opinion, the damages awarded were within the range of his Honour's discretion, having regard to the facts found by hin. In these circumstances, we are of the view that the appeal should be dismissed with costs. I certify that this and the 1O_ preceding pages are a true copy of the reasons for judgnient herein of the Court Ss Regewoy Associate Bated 12 September 1186 oa