SABIC v PETHERAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MCHUGH JJA 5 February 1988, 16 May 1988 [1988] NSWCA 134 DAMAGES — hospital notes not objective evidence of complaints of pain. DAMAGES — alleged errors of fact — no question of principle. ORDER Appeal dismissed with costs. Samuels JA I agree with McHugh JA. Priestley JA I agree with McHugh JA. McHugh JA The plaintiff in an action for damages for personal injuries appealsagainst a judgment of Master Sharpe. She alleges that as the result of a number of factual errors in his reasons damages of $1,000 awarded to her were inadequate. At about 5.30 p.m. on the 11th July, 1984, the plaintiff was a passenger in a taxi which struck a vehicle owned by the defendant. After the accident she was treated at the Casualty Department of Canterbury Hospital. On the 24th August, 1983 the plaintiff had also been involved in a motor vehicle accident when she was a passenger in a vehicle which struck a pole. The proceedings before Master Sharpe were concerned with the accident of 17th July, 1984. The Master found that, although the plaintiff may have suffered "transient anxiety and perhaps a mild degree of discomfort", there was no change in her condition as it existed immediately before that accident. The Master said that the plaintiff "presented as a pathetic, grotesque, pain-ridden individual who could not bear to sit normally on a seat". He explained the nature of her claim and the evidence in support of it as follows: "The basis of the plaintiff's claim to aggravation and for exacerbation of pre-existing injury is to be found in the viva voce evidence of the plaintiff and Dr. Gronow, namely, that during a few days of in-patient treatment at Sydney Hospital in July 1984 the plaintiff felt slightly better than she had before. As against this Dr. Gronow's notes are contained in Exhibit 10. The note made on 10 July, 1984 makes no mention of improvement." The first point taken on behalf of the plaintiff is that the Master's summary of the evidence in support of her case was erroneous because the clinical notes of Canterbury Hospital in respect of her treatment on the 17th July, 1984 were in evidence and were part of her case. The plaintiff submitted that those notes recorded that she complained of pain in the neck and spine and that she had indicated that her neck and back had "been this painful prior to accident". The notes also indicated that her "chief complaint" was of a painful neck and that she had been taken to hospital in a cervical collar. The plaintiff argued that the hospital notes were objective evidence of an injury on the 17th July, 1984 Mich had exacerbated her pre-existing condition and that the Master's failure to mention this evidence was sufficient reason for this Court to interfere with his findings. The submission must be rejected. The notes are not 2 UNREPORTED JUDGMENTS independent evidence of the plaintiff's injuries. They came into existence as a record of her complaints and in the circumstances of this case add little, if anything, to her oral evidence. Moreover, one reading of the notes tends to suggest that there was no aggravation of a pre-existing injury - merely that the level of pain was the same as it had been prior to the accident. The second point argued was that the Master had erred in stating that Dr. Gronow's notes made no mention of any improvement in her condition. The plaintiff submitted that the notes of Dr. Gronow in relation to consultations by her on the 11th April, 1984 and the 10th May, 1984 referred to her sleeping better. In evidence Dr. Gronow also said:- ... Well, my overall impression was that she was improving at that stage. HIS HONOUR: Q. You mean in that couple of days in hospital? A. No, from the time she first came to Sydney. She reported better sleep during that time which is usually a first indication that things are improving. Q. From the first time, 14 March, 1984, up to what time was she showing this improvements A. I had felt probably she was improving on each subsequent visit. Q. Up to when? A. Up until that visit of 15 August. Q. Are you able to tell his Honour what the prognosis was for this patient up until the second motor vehicle accident? A. Well, I think at that stage my opinion was that she would continue to improve. That would have been my expectation at that time and that I had been hopeful that she would become considerably more functional with the long term possibility of getting herself back to some form of work, if that was her desire to do so. Q. When you say long term, what sort of term? A. It is always a little difficult to put a fixed time on that but one would probably look and say six to twelve months. The passage from the Master's judgment which I have earlier set out suggests that the plaintiff's case at the trial was that she was improving only "during a few days of in-patient treatment at Sydney Hospital in July 1984". If this truly represented her case, then the Master was correct in asserting that Dr. Gronow's notes of the 10th July, 1984 made no mention of any improvement However, the evidence suggests that the plaintiff's case was that, for some time prior to the accident of 17th July, 1984, she was continuing to improve from the effects of the accident of the 24th August, 1983. But I do not think that it matters whether the plaintiff's case was that she only showed improvement during her stay in hospital in July 1984 or whether her case was that she was making continual improvement in the period up to the second accident. The Master made a critical finding that, where "there is no objective evidence in support of the contention that injury was suffered in the event of July 1984, I reject the evidence - this includes that of Dr. Gronow and the Plaintiff." He held in effect that, whether or not she had improved before 17th July, 1984, in the absence of objective evidence he was not prepared to find that she suffered any aggravation of a pre-existing condition. The Master had the advantage of seeing both Dr. Gronow and the plaintiff cross-examined. He also relied on what was related to Dr Alan Innes-Brown, who saw the plaintiff the day after the accident. The Master said:- "What is more pertinent is the report of Dr. Alan Innes-Brown of 26 July, 1984 (Exhibit 3). This Specialist was presumably qualified by the plaintiff 's solicitor for possible use in her action arising out of the August 1983 accident. He saw the plaintiff on 18 July, 1984 the day following the accident which is the subject of this litigation. There is absolutely no mention of this accident or of any sequelae. Where there is no objective evidence in support of the contention that injury was suffered in URJ SABIC v PETHERAN (McHugh JA) 3 the event of July 1984, I reject the evidence - this includes that of Dr. Gronow and the plaintiff. There is no requirement in the circumstances to decide whether or not the plaintiff is a malingerer or whether or not she suffers psychiatric illness." There has been no challenge to the fact that the plaintiff did go to Canterbury Hospital, following the accident but there is no evidence, on the balance of probabilities, that she suffered anything but transient anxiety and perhaps a mild degree of added discomfort. Such damage as may have occurred would be amply rewarded by a nominal award." It is not possible for this Court to interfere with the Master's finding. Her case ultimately depended upon the evidence of herself and Dr. Gronow. The Master rejected that case. Obviously he regarded the failure of the plaintiff to mention the accident or any sequelae to Dr. Innes-Brown on the day after its occurrence as indicating that any injury was of a mild nature. I see no ground for interfering with the Master's finding. The third point taken was that the Master had erred in rejecting the evidence of a witness who said that there had been a dramatic change in the plaintiff following the second accident. The Master said her evidence was "obviously exaggerated to the extent of lying". He stated that the observations of the witness did not "accord with the medical records and reports in evidence". The plaintiff argued that it was an error to reject the evidence of the witness for that reason because the authors of the medical reports had far less opportunity of observing the plaintiff than did the witness. It is enough to say that there is no substance in this contention and that the Master was perfectly entitled to reject the evidence of the witness. The fourth point relied upon was that the Master erred "in by implication rejecting the evidence of Dr. Metcalf, Psychiatrist". In reciting the evidence tendered in the case the Master referred to the fact that there was admitted in evidence a report of Dr. Metcalf of 19 January, 1987. He made no further comment about that report. The plaintiff argued that Dr. Metcalf's report showed that she was suffering from a conversion syndrome. After reciting the complaints and history given by the plaintiff, Dr. Metcalf commented: *T have perused copies of reports written by Drs. Garrick and Gronow which you so kindly provided and note that in their opinion she has a genuine problem to do with her vertebral facet joints which requires treatment. Accurate assessment of her condition and prognosis is difficult in view of the conversion phenomena present and the histrionic presentation. Some time in the future, when she starts to improve, she will require sensitive rehabilitation. This comment gives no support for the view that any conversion syndrome was the result of the accident of 17th July, 1984. It was irrelevant. The plaintiff's claim that the Master made factual errors affecting the correctness of his conclusion cannot be upheld. Order. The appeal is dismissed with costs.