WALLER v SYDNEY COLLEGE OF ADVANCED EDUCATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and MEAGHER JJA 10 February 1989, 21 April 1989 [1989] NSWCA 221 Negligence — damages — alleged physical injury and psychiatric injury — contest as to plaintiff's veracity — low verdict -whether jury entitled to reach verdict. DAMAGES — jury verdict — plaintiff injured following collapse of ceiling — claims continuing disability and severe psychiatric consequences — alleges continuing incapacity defendant's psychiatrist gives evidence that the plaintiff is exaggerating on the basis of investigative films — jury returns very small verdict — plaintiff appeals COSTS — discretion of trial judge — jury brings in verdict of $10600 — judge orders full costs and payment of senior counsel's fees — cross-appeal ORDERS Appeal dismissed with costs. held: Although very small, on the plaintiff's case the verdict was open to the jury on the basis of accepting the defendant's case. Appeal dismissed. Precision Plastics Pty Limited v Demir (1975) 132 CLR 362, 364; Gamser v The Nominal Defendant (1977) 136 CLR 145, 159 and Petersville Limited v Vidakovic (No 2), Court of Appeal, unreported, 7 April 1989 applied; Lucas v Peterson [1967] 2 NSWR 663 distinguished. held: No such error was shown in the exercise of the discretion such as to warrant interference by an appellate Court. In re the Will of Gilbert (1946) 46 SR (NSW) 318 applied; - cross-appeal dismissed. Kirby P Before the Court is an appeal and cross-appeal. They arise out of a judgment which Enderby J directed to be entered following a jury's verdict and an order which his Honour subsequently made in respect of costs. Injury to the appellant The incident out of which the litigation arises occurred on 27 November 1978. The appellant was, at that time, employed by the respondent College as a clerk-clerical assistant. She had been so employed since 1977. On the day of her accident, she was sitting at a desk in the Registry of the College. She heard a loud noise above her head. She looked up to see the roof shaking. A moment later the ceiling collapsed. A person who had been working inside the ceiling fell to the floor. There was evidence to suggest that, as the ceiling collapsed, the appellant was hit on the head by an object, possibly a metal bar. Certainly, the appellant suffered an injury to her head and neck and probably a mild concussion. The appellant was understandably shocked and frightened by the experience just described. She complained that, after the incident, she suffered from dizziness, headaches, pain in both eyes and a swollen and painful neck. She claimed and was paid workers' compensation under the Workers' Compensation Act 1926. In due course, she brought a damages action against her employer claiming damages for negligence. It was this action which came on for trial before Enderby J and a jury. The jury returned a verdict in favour of the appellant. It awarded her $10,600. The judgment in favour of the appellant is not challenged. It postulates necessarily that the appellant suffered damage for which she was entitled to 2 UNREPORTED JUDGMENTS recover just compensation from the respondent. The first point of issue in the appeal is whether the judgment which followed the jury's verdict can be appealed on the basis that it reveals an error which will warrant disturbance by an appellate court. The circumstances in which an appellate court is authorised to disturb a judgment which has followed a jury's verdict are stringently defined. I have recently collected the principal authorities. They are well known, as is the approach to be taken by a Court such as this in an appeal of this nature. I will therefore not repeat those principles. See Petersville Limited v Vidakovic (No 2), Court of Appeal, 7 April 1989, unreported. It is sufficient to say that the Court must examine the verdict, deduct from the sum awarded the sum of out-of-pocket and other uncontested or incontestable amounts, and then consider whether it was open to the jury upon any reasonable interpretation of the facts proved, to arrive at the balance. See Demir v Precision Plastics Pty Limited (1975) 132 CLR 362 at 364; Gamser v The Nominal Defendant (1977) 136 CLR 145 at 159-160. It is with these authorities in mind that I turn to the issues in the appeal. Evidence of the appellant's damage Immediately after receiving her injuries, the appellant saw Dr Coster, a medical practitioner, practising in the College. She was told to lie down for a time. She went home at approximately the normal time of termination of her work duties. She presented at work on the following three days. However, on each day she was able to work for only half of the allotted time. At the end of this short interval, she ceased work. The evidence was that she had not worked thereafter. She claimed that this was because of the injuries she suffered and their consequences. On 10 December 1978, the appellant was examined by an officer of the Health Commission of New South Wales. He expressed the opinion that she was not medically fit to continue working. In the result, the appellant was retired from the service of the College from 18 December Compensation payments were thereafter continued for a time. Between her retirement from the College and the trial, the appellant saw a number of medical practitioners. Several of them gave evidence at the hearing. A recurring theme of their evidence was that the appellant presented in a distracted and emotional state, particularly during any form of physical examination. She constantly complained of being in pain and of suffering depression. Three specialist psychiatrists who gave evidence for the appellant accepted her symptoms as real. They concluded that the appellant was suffering from a chronic neurotic disorder. They expressed the opinion that this was the result of the shock which she had suffered in the incident upon which she sued. From this conclusion, these witnesses expressed the opinion that the appellant's disabilities were extremely serious and prevented her from leading a normal life. They also prevented her from engaging in full-time employment. Dr Vaughan, who had treated the appellant, saw her twice in 1983. He stated that when he examined her she was very distressed and crying. In evidence at the trial he said that he thought that she was suffering from a post-traumatic stress anxiety syndrome. He said that this resulted from the terrifying experience which she had suffered at work. He stated that he could find no history of abnormality or difficulties in her previous personality which could possibly explain the appearance of this condition. He recorded that the appellant was taking anti-depressant drugs, wearing a collar and having injections into her neck. He URJ WALLER v SYDNEY COLLEGE OF ADVANCED EDUCATION (Kirby P) 3 concluded that her prognosis was not good. In his opinion, once a condition such as has been described has become entrenched in a person such as the appellant, it is difficult to remedy. The respondent, on the other hand, placed before the jury the evidence of psychiatrist, Dr Shand. He came to an entirely different conclusion. He first examined the appellant on 24 August 1984. He then concluded that she was suffering from genuine distress during the physical examination. However, he recommended that observations be taken of her. Subsequently, unbeknown to her, she was observed in her everyday activities. A film was taken of her movements and behaviour. This was then shown to Dr Shand. In his evidence, he stated that there was a considerable inconsistency between the way in which the appellant presented her complaints on physical examination and her behaviour as demonstrated in the film. "Q: Having seen the film are her movements as depicted there consistent with complaints that she has made to you on the various occasions that you have seen her in your rooms? A: They are very much inconsistent with her complaints and with her performance during physical examination." Dr Shand expressed the opinion that the appellant had consciously fabricated her alleged disabilities, by inference in order to recover substantial damages at the hands of the jury. It seems obvious that the jury, returning such a small verdict in a case which might, viewed differently, have warranted a very substantial verdict indeed, accepted the opinion of Dr Shand. Equally it may be inferred that the jury did not accept the evidence of the appellant where it conflicted with Dr Shand. Plainly the jury was not satisfied that the appellant was telling the truth about the measure of her continuing disabilities. The appellant urged that, even if the jury accepted Dr Shand's hypothesis, his evidence did not relate to her condition prior to his examination of her. It is true that, of necessity, Dr Shand could not give direct evidence which related to the time before he examined the appellant concerning her disabilities. But it would be perfectly open to a jury to conclude, upon the basis of inconsistency demonstrated when it was put to the test, that the fabrication which then existed had formulated itself in the mind of the appellant long before she saw Dr Shand. At least the jury could so conclude, applying commonsense to the respective cases which were presented to it by the appellant and by the respondent. The jury also had before it the evidence of Dr Millons. He is an orthopaedic surgeon. He saw the appellant on 22 August 1979. At that time he expressed the opinion that there was no objective clinical evidence to support her complaints of continuing disability. He stated that the appellant might have sustained a mild concussion due to the accident in 1978. However, he could not explain her continuing symptoms on the basis of any physical finding made by him. He expressed the opinion that the appellant was "greatly exaggerating" her condition. However, he acknowledged that a person might experience pain without presenting physical symptoms to corroborate a physiological foundation for the pain. This emphasised the importance of the opinion of the psychiatrists. This in turn presented to the jury the choice between the appellant's psychiatrists (who accepted her evidence as the basis of their opinion) and Dr Shand (who did not, once her saw the investigator's film). 4 UNREPORTED JUDGMENTS That film, the investigator's evidence and the opinion of Dr Shand and Dr Millons clearly posed a classic question for the decision of the jury. Was the appellant telling the truth or was she consciously exaggerating? The absence of physical signs made the acceptance of the appellant's truthfulness the fulcrum of this case. If the jury did not accept her truthfulness it was open to it to provide damages for a short time after the incident at work but not thereafter. When the agreed out-of-pocket expenses of $4079 are deducted from the jury's verdict of $10600, this leaves $6521 for general damages. Clearly this is unacceptably small, if the appellant's case is accepted. But if it is not, the provision of compensation to the appellant takes on an entirely different complexion. Upon that hypothesis, the case was a very small one. The provision of damages in the sum awarded for a transitory injury and limited incapacity, would be immune from interference by this Court. The appellant relied upon what was said by this Court in Lucas v Peterson [1967] 2 NSWR 663. But that case simply lays down the rule that in testing the reasonableness of the jury's verdict, it is appropriate to take into account unanimous medical evidence. A jury verdict which is incompatible with that evidence cannot be sustained. That decision is not applicable to this case. Here the medical (and factual) evidence was far from unanimous. Here there was a choice between two entirely different cases which was tendered to the jury for its decision. The appellant also relied upon the continuous payment of workers' compensation benefits as providing some form of admission of continuing disability on the part of the respondent. I prefer to dispose of that argument by saying that it was not formally an issue at the trial. Accordingly, it was not really determined below. I do not believe that it can be raised now, for the first time, on appeal. In any case, there are many explanations which could justify the payments of compensation although the employer contested the fact or extent of incapacity in the damages cases. With a damages action pending, the employer might prefer to have the issue determined by the jury in the damages action rather than conclusively determined in the Compensation Court in a contested application to that court. Plainly, this is what the employer preferred to do in this case. No estoppel arises from the mere fact of the payment of compensation without a court determined award. Consistent with the jury's verdict, it must now be concluded that some of that compensation was unnecessarily paid. The employer, upon that hypothesis, would have more than a statutory claim to reimbursement. The appellant raised a number of complaints about the directions given by Enderby J to the jury. However, although not withdrawn, these were not ultimately pressed. It is enough for me to say that I see no substance in any of them. Cross-appeal That leaves only the respondent's cross-appeal from Enderby J's order that the respondent should pay the appellant's costs of the trial in full, including her costs of briefing senior counsel, notwithstanding the small recovery. See Pt(52) r24 and 126. The order made by Enderby J was made pursuant to a large discretion conferred in wide terms upon the judge who conducted the trial. Disturbance of an order which follows such an exercise of discretion will be rare. This is so for the reasons explained by Jordan CJ in the well-known passage in In re the Will of Gilbert (1946) 46 SR (NSW) 318, to which Meagher JA has referred in another context. URJ WALLER v SYDNEY COLLEGE OF ADVANCED EDUCATION (Meagher JA) 5 Upon the case presented by her to her advisers, the appellant had cause to expect the recovery of a judgment well in excess of $50000. It was therefore open to Enderby J to conclude that the case was properly commenced in the Supreme Court. The issues of psychiatric evidence and the contest about the extent of the appellant's disabilities, together with the seriousness of that contest warranted the retention of senior counsel. But the cross-appeal can be disposed of quite simply by saying that no such basis has been shown to authorise this Court to disturb the exercise of the trial judge's discretion. Orders I would therefore propose that the appeal and the cross-appeal each be dismissed with costs. Clarke JA I agree with Meagher JA. Meagher JA In this matter the plaintiff sued for injuries arising from an accident which occurred to her when she was an employee of the Respondent, Sydney College of Advanced Education. The accident took place on 27 November 1978 when an employee of the respondent fell through the roof above the room in which she was working and caused her an injury. It is not quite clear exactly what injury was caused. She said that the employee knocked a steel bar which fell on her head, but there is evidence which would seem to cast doubt upon this. She claimed that she had suffered a blow to the head which caused concussion, whiplash to her neck and cervical spine, severe shock, abrasions and bruises, soft tissue cervical injury, contusion of the right knee and right ankle and muscular ligamentous injury of the lumbar spine. These injuries she said led to various disabilities including not only physical disabilities but also loss of memory and concentration, acute anxiety and depression. She also claims psychological disturbances. The defendant put in issue its liability, though the jury decided in favour of the plaintiff on this point. In so far as the plaintiff's physical disabilities were concerned the defendant contended that the plaintiff was consciously exaggerating them, although necessarily admitting that initially some physical injuries were suffered. As far as her complaint about suffering a chronic neurotic disorder was concerned the defendant contested that and submitted that there was at least conscious exaggeration of the symptom if not outright deception. The jury brought in a verdict of $10,600. The fact that the jury brought in a verdict at all in favour of the plaintiff must obviously mean that they accepted that some damage had been suffered by her as a result of the defendant's negligence. In view of the fact that out of pocket expenses as agreed amounted to $4,079 must mean that the jury awarded the sum of $6,521 to compensate her for general damages, loss of wages and future economic loss. It must include compensation for eight weeks incapacitation, as all witnesses agreed that she was incapacitated for that period. Eight weeks wages would have amounted to the figure of $1,040. The result then is that the jury must have awarded her the sum of $5,481 for all other complaints. In the light of the evidence given at the trial, in my view, they were entitled to come to this conclusion. Dr Shand saw the plaintiff in 1984 or 1985, at which time he first suspected and then concluded that she was deceptive and mendacious and was in fact giving a fabricated account of her symptoms. Films of the plaintiff confirmed his view. The plaintiff/appellant's contention is that the jury's verdict is perverse because no evidence contradicts the genuineness of her physical complaints before Dr. Shand saw her. This submission in my view must be rejected. Whilst 6 UNREPORTED JUDGMENTS obviously Dr. Shand could not give evidence as to her situation before he saw her the jury having received evidence that she was giving a deceptive account of her symptoms in 1984 could have refused to accept as genuine her evidence as to her complaints about periods previous to Dr. Shand's consultation. It was the jury which had to accept or refuse to accept her evidence as to the previous period and they were entitled to refuse to accept her evidence once they had decided, as they must have, that she was mendacious in her evidence relating to a later period. Likewise, if the jury decided that they could not believe her, they were also entitled to reject so much of the evidence of the medical practitioners called on her behalf whose reports depended on an acceptance of her word. As to the complaints the appellant made about her physical injuries, there was conflicting evidence about the gravity of those injuries. The jury was likewise entitled to accept that her physical injuries were a great deal less than she claimed. In these circumstances if one makes the assumption that the jury was entitled to refuse to accept any evidence which was contested, it is clear that they were entitled to arrive at the verdict at which they did in fact arrive. On behalf of the appellant Mr. Hamilton of Queens Counsel relied on the decision in Lucas v Peterson [1967] 2 NSWR 673 the ratio of which is that a new trial would be ordered if the verdict is lower than the uncontested medical evidence would warrant. The reason why that decision does not assist the appellant is that in the present case the medical evidence was not uncontested. In Lucas v Peterson the medical evidence was unanimous; in the present case it was not. It was also urged by Mr. Hamilton, although without great conviction, that the appellant should in some ways succeed because of deductions made for workers compensation payments made to the appellant. Since the evidence of payments made under that Act to the plaintiff could not have been admissible at her trial it is not easy to see how the Court of Appeal should be swayed by that. This submission must also fail. The learned judge who tried the case exercised his discretion under Pt(52) 124 and r26 by ordering that the defendant pay the plaintiff's costs in full including the plaintiff's costs of briefing senior counsel. The cross appeal was brought by the respondent in this regard. All relevant matters were considered by His Honour, who neither acted on an irrelevant principle nor failed to take into account any relevant principle. In these circumstances there is no reason to hold that His Honour's discretionary judgment miscarried. In my view therefore the appeal should be dismissed with costs and the cross appeal should also be dismissed with costs. The appeal and the cross-appeal are each dismissed with costs. Counsels for Appellant: J P Hamilton QC and R J Colquhoun Solicitors for Appellant: Messrs Pettiford and Bottrill Counsel for Respondent: D R Russell Solicitors for Respondent: Messrs Dunhill Morgan