YOUNG v J D COATES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and MEAGHER JJA and WADDELL AJA 24 September 1990, 5 October 1990 [1990] NSWCA 192 Appeal from District Court — Phobia resulting from eating apricot kernels containing excess cyanide — Assessment of damages — Contest as to plaintiff's psychiatric condition before and after poisoning incident — On facts found, no grounds for interfering with $5,000 award of general damages. Appeal dismissed with costs. Mahoney JA On 10 February 1975 The plaintiff ate some apricot kernels which apparently contained an excess of the chemical cyanide. She suffered injury because of it. The defendant has, for the purposes of the present proceeding, admitted liability for the damage suffered by the plaintiff. The plaintiff's claim against the defendant came before his Honour Acting Judge Callaway for assessment of damages. On 21 March 1988 his Honour awarded the plaintiff damages of $21,352, comprised of $15,000 general damages and $6,352 interest. In the plaintiff's appeal to this Court the only ground of appeal specified in the Notice of Appeal is "That the damages awarded by his Honour were inadequate". As his Honour recorded, the plaintiff claimed damages "for what amounted to a phobia with related symptoms of anxiety depression and other problems, such phobia being associated with the eating of processed foods of various types and the consequences upon her lifestyle of such phobia and related symptoms". No claim was made for loss of earning capacity or for out of pocket expenses. The plaintiff, in her oral evidence, described the effect upon her following eating the kernels: she was flushed, "in mental agony", ill on the stomach and nauseated and she vomited. His Honour said: "As I have indicated above, the plaintiff claims that as a result of the mental agony and physical illness through which she went on the day of ingesting the poison, she found it not possible with any comfort to eat processed foods. Her social life was seriously handicapped and in general her lifestyle had been affected following the frightening consequences of the poisoning. She gave evidence of the ways in which she claims her lifestyle had been affected, both in relation to what she was able thereafter to eat, and in relation to matters such as her attendance as a social club, her eating out and having friends to visit and to eat at her place and her playing tennis and the like." The plaintiff's claim had been tried in the District Court on a previous occasion. She had been awarded, as appears from the judgment then given of this Court, general damages of $15,000. That judgment: was set aside on the grounds of inadequacy and because interest had not been awarded. As Acting Judge Callaway recorded in his judgment, the case as conducted before the District Court on that occasion did not include any evidence that the plaintiff had suffered any previous psychiatric or psychological problems. 2 UNREPORTED JUDGMENTS In the present case, his Honour found, in my opinion correctly, that because of "the frightening poisoning incident" the plaintiff developed a phobia in relation to eating certain processed foods, that that phobia continues and will persist in the future. However, his Honour found that prior to the incident she had been suffering from significant and relevant psychiatric problems. In addition, he found that she had exaggerated her problems. His Honour therefore concluded that: "... such phobia as does exist in respect of certain foods is of a mild degree only amounting, perhaps, to some apprehension at eating certain processed foods and that it amounts to no more than a focus created by the poisoning incident and thereby assuming in the mind of this lady in its then and current state a significance which otherwise it would not have." He concluded that the disposal of the present litigation would have "some beneficial effect" but that she would "suffer from such mild phobic symptoms as I find she has suffered in the past, into the future". It was on that basis that his Honour assessed damages as he did. When the appeal was called on for hearing, counsel previously briefed for the plaintiff informed the court that his instructions has been withdrawn. Miss Young appeared for herself. She was advised by the court that, on one view, the appeal involved questions of some complication. It was suggested to her that she should have the appeal conducted on her behalf by counsel. However, she indicated that she desired the appeal to proceed and that she would conduct the appeal herself. At her request, the appeal proceeded. The basis on which this Court acts in an appeal of the present kind is well settled: see, eg, Moran v McMahon (1985 3 NSWLR 700; Chambers v Jobling (1986) 7 NSWLR 1. The court will, in general, determine the appeal upon the evidence adduced in the court below. And it will, inter alia, have regard to the advantage which the trial judge had in considering and assessing the evidence given to him: Chambers v Jobling at 10. In considering the appeal, it will be convenient to have regard, inter alia, to three things: what is the extent of the plaintiff's phobia, what was her condition prior to the poisoning incident; and what, having regard to those matters, is the appropriate award of general damages. 1 The plaintiffs phobia: The plaintiff in her evidence described a wide ranging phobia affecting substantial parts of her activities. The learned judge did not accept her evidence in this regard. As the plaintiff complained of his Honour's finding, I shall refer to what he said: "T found the plaintiff to be an unsatisfactory witness; I take the view that at the very best in her favour she has exaggerated her problems for the purposes of this case. She lacks corroboration in just about every claim that she makes; I refer to her claim of giving up tennis, her claim of diminished attendance at Ngunnagan social club and her eating out and socialising habits. Indeed, the only corroborative witness called was Mr Harant, the president of the abovementioned club, and he had had little contact with the plaintiff, it seems to me, at any relevant time. Indeed after the incident of the poisoning when asked specifically he said that he 'never noticed anything different' about the plaintiff or her behaviour including her attendance at the club. I have no doubt that the plaintiff gave misleading evidence as to her present diet. It was only in cross examination that she disclosed the eating of meat pies, sausage rolls, vanilla slices and the like and only when confronted with filmed evidence of eating custard pies bought at URJ YOUNG v J D COATES PTY LTD (Mahoney JA) 3 a cake shop near her place of work did she admit to doing so, and then only in a qualified way. She denied eating the second of such custard pies at her desk and I reject this denial on her part as I prefer the evidence, which I accept, of Mr James, the private investigator who gave evidence of observing her and who indeed took the film which I saw and which is an exhibit in the case. There are many other areas of the plaintiff's case which tell against her; she did not seek medical treatment for nearly seven years after the poisoning and then pursuant to an appointment with Dr Greenberg arranged by her solicitors. On that occasion she was less than frank with the doctor in that she claimed she had suffered no previous nervous disorder which was, as it emerged, patently untrue, she having suffered from a serious psychiatric disability for which she was hospitalised for two months in 1970 at which stage it is recorded that she had a history of over twenty years of anxiety state. I shall return to that aspect of the matter when dealing with the medical evidence. She had made two overseas trips travelling by air and being absent for significant periods and she admitted having been able to eat airline food, apparently without any significant effects. It is therefore clear that the case cannot be looked at on the basis on which it was opened or as the plaintiff would seek to have it." Having regard to his Honour's advantages in seeing the plaintiff and her witnesses at the trial, I do not think that this Court should depart from his Honour's conclusion in relation to these matters. Upon the principles by which this Court is bound, it should accept his Honour's assessment of the plaintiff and, in general, of the evidence that she gave. But the problem remains to determine the extent of the plaintiffs phobia and its effects. It was not in contest but that the plaintiff had a phobia of the kind to which the learned judge referred or that it was causally related to what the defendant had done. The rejection of the plaintiff's evidence contained in what his Honour said does not mean that she did not suffer from some effects from the phobia. And it was for the effects of the phobia that, in practical terms, she was to be compensated. His Honour's rejection of her evidence as there referred to left to be determined what were those effects. The evidence accepted by the learned judge as to what she was observed doing, eg, eating processed food, and the admissions which she made as to food which she herself had not prepared, provided a substantial basis for inference that her phobia did not extend as far as, unqualified, her evidence in chief might have suggested. The evidence, oral and written, of the psychiatric witnesses did not, in my opinion, definitively state the extent of the phobia or its effects, at least in a manner which, having regard to the evidence which emerged at the trial, his Honour was required to accept. His Honour's final conclusion was, as I have indicated, that the phobia was "of a mild degree only amounting, perhaps, to some apprehension at eating certain processed foods...". I think it was open to his Honour so to find and that, having regard to the assessment made by him of the plaintiff, such a conclusion should be accepted and not disturbed on this appeal. His Honour might have said merely that, the onus being upon the plaintiff to satisfy him as to the extent of her phobia and its effects, he was not satisfied beyond what he stated. I am inclined to think that that is in effect what his Honour did. But in any event, having regard to the evidence which was given, and to the findings as to witnesses made by the learned judge, I do not think the plaintiff has established a case beyond that upon which his Honour acted. 2. The plaintiff's previous psychiatric condition: 4 UNREPORTED JUDGMENTS There was at the trial dispute as to the plaintiff's condition prior to the poisoning incident. The plaintiff's oral evidence made little or no reference to this. However, there is reference to prior treatment in the medical report of Dr RR Godsall dated 11 March 1988, tendered on her behalf. His Honour concluded that she had been "less than frank" with Dr Greenberg, a psychiatrist who had seen her and who had given evidence for her at the trial) and that she had suffered from "a serious psychiatric disability for which she had been hospitalised for two months in 1970". The evidence established, in my opinion, that the plaintiff had had psychiatric symptoms related to feelings of anxiety at a stage prior to the poisoning incident in 1976. A Dr Philip had, in a certificate of 10 June 1970, stated that she had "presented today in a most anxious state" and that she had been diagnosed six years before by a psychiatrist "as having an anxiety neurosis". There was, in my opinion, evidence on which the learned judge could properly find that, prior to the poisoning incident, she was suffering from a psychiatric disability properly described as serious. That fact does not, of course, mean that the plaintiff was not entitled to damages for what the poisoning incident did to her. But it is, of course, relevant in assessing the extent of the injury done to her by it. It is not necessary for the purposes of this appeal to consider the often difficult questions which may arise in this context. Reference has been made in other cases to the question whether a particular act or event is the cause or only the occasion of the onset of particular psychiatric symptoms: see Hoffmueller v Commonwealth 54 FLR 48. That problem does not arise in this case: the appeal has proceeded on the basis that no issue of causality of this kind has arisen. But a plaintiff's previous psychiatric condition may be relevant in quantifying damages where, eg, the plaintiff had a particular potential for psychiatric injury and was apt to suffer the injury complained of from a number of different causes or where the defendant's default has produced only an increase in the extent of symptoms already existing at the date of the injury. Prior to the injury here in question, the plaintiff suffered from an anxiety state. The focus of those anxieties and the extent to which they related to food poisoning or matters of the kind here complained of was not explored in the evidence as fully as they might have been. But his Honour was, in my opinion, entitled to take the pre existing anxiety state into account as he did in assessing the extent of the injury suffered by the plaintiff from the anxieties involved in the phobia produced by the poisoning incident and for the purpose of deciding how far the pre existing anxieties have in a practical sense been added to by that incident. 3. The quantum of the damage: The damages which the plaintiff should have depend upon the extent of the injury which results from what the defendant did. Had the plaintiff's condition been as she had suggested it to be in chief at the trial, the general damages awarded, $15,000, would in my opinion have been appealably inadequate. But, as his Honour found, the injury resulting from what the defendant did was less than this. If it be, as his Honour found, a phobia only in respect of certain goods, of a mild degree only, and amounting merely to some apprehension at eating certain processed foods, the quantum of the injury inflicted on her is considerably less. URJ YOUNG v J D COATES PTY LTD (Waddell AJA) 5 I am conscious, as I believe his Honour was, that the plaintiff is to be compensated for the effect upon her of what the defendant did, notwithstanding that that may be more than the effect which would have been produced upon a person of a different disposition. The incidence of the potential for psychiatric damage amongst the community is, as the court is entitled to know, not inconsiderable. It is, perhaps, of a higher order than is the incidence of, for example, thin skills. Therefore, in some cases, it is to be contemplated by the reasonable man that psychiatric damage may occur. But, as I have indicated, that issue has not been argued in the present case. The determination of general damages is, in the sense referred to in the authorities, a matter in respect of which, where it is essentially a discretionary matter, appropriate latitude is to be given to the assessment by a trial judge: see generally Miller v Jennings 92 CLR 190 at 195 et seq; Pannucio v Pannucio (1976) 50 ALJR 429 at 430-1. In the circumstances, I do not think that it is proper for this Court to interfere with the judgment given bv the learned judge. Before parting with the appeal, I shall add one further matter. Miss Young submitted that: the learned judge had made findings as to the nature of her psychiatric condition prior to the poisoning incident and that: his findings were wrong. In particular, she referred, as I understand what she submitted, to the evidence of schizophrenia and contended that any finding made on that matter was wrong. As I read the judge's judgment, he did not find that she was, prior to the poisoning incident, suffering from schizophrenia. I do not think that a finding upon that matter was required and I would make no finding upon it. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Mahoney JA. Waddell AJA I agree with the judgment of Mahoney JA and the orders proposed. The appeal is dismissed with costs. The Appellant appeared in person Counsel for the Respondent: Mr DR Russell Solicitors for the Respondent: A R Conolly and Co