PRESPANOSKI v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES GLEESON CJ, MAHONEY, and PRIESTLEY JJA 3 July 1992, 4 August 1992 [1992] NSWCA 190 APPEAL from District Court — Plaintiff injured while alighting from train — Defendant liable in negligence. — DAMAGES — Judge did not accept plaintiff's account of the extent of her injuries and the results of them — Small verdict — Errors alleged in judge's reasons for his conclusions. — Held: Properly construed, no errors were made — If errors were made, they did not warrant retrial. — JUDGE'S COMMENTS — Right of judge to comment upon matters dealt with at the trial — Liability of comments to misunderstanding — Time and expense from such comments Nature of judgment as "professional statement of reasons directed to the parties and to the professionals who advise them'. Gleeson CJ I agree with the judgment of Mahoney JA. Mahoney JA On 3 June 1986 on her way to work the plaintiff was injured while alighting from an electric train at St Peters Station. Her injury was the result of the negligence of the State Rail Authority: that is not now in contest. On 13 October 1986 she commenced proceedings against the Authority. In March and later in 1990 her claim was heard by Conomos DCJ. On 3 July 1990 his Honour gave judgment for the plaintiff for $4,788.86. The plaintiff has appealed to this Court against his Honour's Judgment. She claims a new trial limited to the issue of damages. The facts of the accident are not significantly in doubt. The plaintiff was alighting from a train which had arrived at St Peters railway station. The train suddenly started and she fell, as the judge found, onto her knees. She rested on her right elbow. She was helped to her feet by a workmate. She was able to walk to her work place, though she said she walked slowly. She was treated by the nursing sister at her place of employment and continued with her work. She was given lighter duties than she had had before. Her work, she had said, had involved work as a "table hand" on a machine "painting, making boxes". She was required to collect envelopes, two to five hundred of them, and pack them in a box, then pick up the box and carry it over to a platform. Following the accident, she continued to work with envelopes but was confined to stacking them in bundles in the manner described in her evidence. The learned judge found: "The plaintiff suffered an injury she alleged to her left knee and her right elbow and she also maintained that she injured her back. The plaintiff remained at work, she continued working and receiving treatment from the nursing sister and a Dr Saba and also physiotherapy from her employer's insurer until 18 August 1986. On that date she consulted Dr Bannister upon referral from Dr Saffraz." The plaintiff continued under the care of Dr Bannister at least until 1990. In a report of 5 March 1990, Dr Bannister said: "Opinion: This lady has acute back pain and left sided sciatica due to her fall off the train. This lady also has symptoms in her right elbow and left knee as a result of her fall. The symptoms in her knee will continue to worry her and be 2 UNREPORTED JUDGMENTS symptomatic. This lady will not be able to work(sic) on inclines or stairs. Likewise the symptoms in her back will continue to cause her discomfort and confine her to light duties indefinitely not involving activities which involve heavy lifting, pushing or pulling work or work involving prolonged standing or sitting. In my opinion this lady should continue with physiotherapy indefinitely. There was no evidence of over reaction or exaggeration during this examination." The evidence disclosed that he had treated her more or less continuously from 18 August 1986 to 1990 and that she was subjected to treatment in hospital under his care. Other medical evidence was, and could have been understood by the trial judge to be, to the contrary effect. Dr James Royle, in a report of 19 July 1989, detailed his examination of her and concluded: "Conclusions: 1. The history, complaints and progress have been verified. 2. Mrs Prespanoski has no disability in her right elbow, low back or left knee. 3. Her complaints and the findings on examination are quite inconsistent. 4. There is now no relationship to the incident on 13/6/86. 5. She is physically fit for her previous work of process worker. 6. Her customary preaccident lifestyle would have been only temporarily affected. 7. She needs no further treatment. 8. There is no loss of efficient function of the right upper limb." There was other evidence which could, or could arguably, support the case of the plaintiff and of the defendant. It is not necessary to detail it. If it were necessary to express a conclusion in relation to it, I would conclude that the significant balance of the evidence supported the case of the defendant. The learned judge referred to the medical reports and said: "Tt follows from an extensive reading of the medical reports that the plaintiff's complaints depend upon my assessment of her credibility. In a word I do not believe her. As from the beginning of August 1986 she had made up her mind that she was going to magnify her injuries in an endeavour to recover very heavy damages from these courts. As I have said before this was a simple accident in which she did not suffer any great injury; some bruising of her left knee, with a little bit of blood and some bruising and nothing more of her right elbow. From that little acorn she has tried to grow a very large tree and I will not allow her to do that in this court. She has endeavoured to buttress this tree by fertilising it with reports from Dr Bannister in the main, but also from the other doctors. Again I will not allow that to happen. Perhaps it is a pity that her husband recovered the amount of hundreds of thousands of dollars that he did because there is no doubt that emboldened her to start on her present course which four years later has left her without employment and her credibility greatly in question in a court of law. There is no good reason at all why she did not remain at work where she was being well looked after by her employers who if I may say so, more than compensated for any disability she may have had for the months of June, July and early August of 1986. It is also of significance that the statement of claim in these proceedings was issued on 13 October 1986 some few months after this accident, claiming $100,000. In that statement of claim the usual huge claims were being made with respect to injuries and economic loss. No attempt at all was made to particularise in the statement of claim how it was that the plaintiff was claiming $100,000. I do not believe the plaintiff. I have said that before. The film taken on UFRRESPANOSKI v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Mahoney JA) 3 14 December 1989 confirms my views that there is absolutely nothing wrong with her. I propose to compensate her as follows." His Honour awarded $3,000 for general damages, interest of $1,680, out of pocket expenses $108.86, and gave judgment for $4,788.86. There was ample evidence upon which the learned judge could have decided as he did. The plaintiff's case depended to a significant extent upon the acceptance of her as a credible witness. The judge did not accept her and, he having had the benefit of observing her as a witness and having been influenced by what he observed, the extent to which an appellate court could intervene would be restricted by the principles referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167. In addition, in determining the extent of the plaintiff's injuries and of the consequences of them, it was necessary for the judge to choose between the medical witnesses. They did not, of course, appear before him. But his decision to accept those favouring the defendant rather than Dr Bannister and the other evidence favouring the plaintiff was affected by his view of the plaintiffs credibility. Accordingly, though it remains open to this Court as on a rehearing: SuPreme Court Act 1970, s75A; to reexamine written evidence of this kind and it has a duty so to do, it is unlikely that the court would conclude that the medical evidence required or warranted a conclusion as to the plaintiff's condition different from that adopted by the judge. The main case advanced by Mr Toomey QC for the plaintiff has been differently directed. He has submitted that the judge's judgement evidences that he made errors in relation to matters of fact and that he made comments or expressed conclusions not warranted by the evidence, to the extent that the trial had miscarried. He submitted that there should be a retrial. Mr Toomey QC relied upon what he submitted to be a number of such errors and the overall effect of them. In doing so, he canvassed the details of the evidence and what the learned judge had said in relation to it. It is no discourtesy to counsel that I do not deal with each of the matters to which counsel has directed attention or refer to all of the detail traversed in argument. I shall refer to what, in my opinion, are the main matters on which reliance was placed. Mr Toomey QC referred first to the remarks made by the trial judge concerning the plaintiff's husband. As I have indicated, the judge concluded that the plaintiff "had made up her mind that she was going to magnify her injuries in an endeavour to recover very heavy damages from these courts" and that the fact that her husband had recovered a substantial judgment "no doubt" "emboldened her to start on her present course which four years later has left her without employment and her credibility greatly in question in a court of law." His Honour had, at an early stage in his judgment, said: "Tt is important to note that Dr Saffraz and Dr Bannister also treated her husband. He, it would seem had had a work related injury to his back and as a result of that injury he received the sum of $120,000 by way of settlement on the basis that his back injury precluded him from doing any work. He is now working of course at Alexandria in a car park. He was to called (sic) to give evidence by the plaintiff even though her barrister Mr Smith did ask him to leave the court in anticipation of his giving evidence. I have no doubt that he was not called to give evidence because he would have been asked questions about his alleged back injury and for that reason he was kept well out of the way after Mr Charteris, who appeared for the defendant, had elicited this information from the plaintiff." 4 UNREPORTED JUDGMENTS It had been put to the plaintiff in cross examination that, in effect, her husband's claim for and recovery of damages had influenced her to "make the most of her own complaints" and to exaggerate them accordingly. Counsel put, inter alia, two things in relation to this matter. He submitted, first, that his Honour erred in his statement of the facts; and, second, he submitted that his Honour's reference to the husband's position had led to or affected the judge's rejection of the plaintiffs credibility in such a way that his assessment of the plaintiff was vitiated. The argument for the plaintiff suggested that his Honour had erred in fact in respect of two main matters: first, that the husband had claimed damages on the basis that his back injury "precluded him from doing any work'; and, second, that his Honour concluded that the husband had made his claim for damages upon a basis which had been not justified or false. Neither counsel was able to refer the court to evidence warranting the conclusion that the husband had claimed that his back injury precluded him from doing "any" work. The only evidence on this matter was given by the plaintiff and she said merely that the back injury had prevented him doing "his normal duties that he did before". She said: "He was working in the building trade, but now he can't. With pain now he works for one day and he rests for two days". The husband received $120,000 "for his pains" and, working "in Alexandria for parking" on "an easy job", he was receiving $260 per week. Accordingly, in saying that the husband had claimed damages on the basis that his injury precluded him from doing "any" work, the learned judge was not supported by the evidence. Such an error would not, standing alone, lead to the rejection of his Honour's conclusion in respect of the plaintiffs evidence. But, the argument suggested, that error led the judge to conclude that the husband's claim for damages had been made on a basis that was false or misleading and, as I understand the submissions, deliberately so. His Honour did not so find in terms: the suggestion that he did was based upon, inter alia, the fact that he said of the husband: "He is now of course working at Alexandria in a car park", and the fact that his Honour inferred that, if the husband had been called to give evidence, he would have been cross examined "about his alleged back injury". (I had added the emphasis). There is force in the submission made by Mr Toomey QC in this regard. But I do not think that it should be inferred that his Honour was expressing a conclusion that the husband had recovered damages on a false or a fraudulent basis. Such a conclusion would have been not merely serious but damaging to the husband; it would have been wrong for the judge so to find without the matter having been canvassed in evidence. What appears in the evidence provides no sufficient basis for such a conclusion. The transcript does not disclose everything that may have been said at the trial or, for example, by counsel in address. In fairness to the learned judge, it is possible that he may have said what he did upon the basis of observations made but not recorded. But however this be, and with some doubt, I am not satisfied that the judge acted on the basis that the husband had obtained damages on a false basis or that his injuries had been otherwise than genuine. It was then put, or at least the argument suggested, that in concluding that he did not believe the plaintiff, his Honour was influenced by the fact that, as it was suggested, he had concluded that the husband's award had been obtained upon the false basis that his injuries had precluded him from "any" work. This, it was UFRRESPANOSKI v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Mahoney JA) 5 submitted, was an error of fact contributing to his Honour's conclusion as to the plaintiff's credibility and accordingly that conclusion should be set aside. I do not think that the court should conclude that the judge reached his conclusion as to the plaintiffs evidence in this way. It is clear that the judge had regard to the fact that the husband had received an award of $120,000 for a back injury. But it does not follow that he reasoned from that to disbelief of the plaintiff. I do not think that the court should conclude that the judge reasoned from what he thought the husband had done to his conclusion as to the plaintiff's credit rather than from his conclusion as to the plaintiff's credit to the significance of what the husband had done. There are at least two alternative views of what the judge did. He could, as the plaintiff's submissions suggested, have reasoned that the husband had made a claim for damages (true, false or exaggerated), that that claim suggested to the plaintiff that she also should make such a claim, and that accordingly she lied and/or exaggerated the results of her injury. Alternatively, the judge could have reasoned in a reverse fashion. He could have concluded, from what he saw of her and from matters other than what the husband did, that she was not telling the truth. If he had done so, it would not have been necessary for him to reason further: that conclusion would have been sufficient to warrant dismissal of the plaintiffs claim. But the judge did go further. There was, of course, a motive for lying, viz, to obtain an inflated award. But the judge felt it appropriate to show not merely the plaintiff's motive but also what had prompted ("emboldened") her to do what she did. That was what had happened in respect of the husband. To show what had prompted her was not necessary to the judge's conclusion but it was not irrelevant. If the judge's reasoning was of the second rather than the first kind, then his view of what the husband had done did not lead to his conclusion as to the plaintiff's credibility: it was something to which he referred after having concluded that she was not telling the truth. There is, again, force in this submission of Mr Toomey QC. But in the end I am not satisfied that the judge reasoned from his view of what the husband had done to his conclusion as to the plaintiffs credibility. While the matter is not beyond argument, there is support for this view in what the judge did. Having said, "I do not believe her", he proceeded to give reasons for not believing her. These suggest that he concluded she was not credible, not because of what the husband had done, but because he concluded that "a very trivial accident" was unlikely to produce the results of which the plaintiff complained. He referred to the form of her claim and to what he saw of her in the film tendered in evidence. In my opinion, the proper conclusion is that the judge rejected the plaintiff as a credible witness because of what he saw of her, because of the nature of the accident and because of the way in which her claim was pursued and, perhaps, evidence. It is for an appellant to establish the error urged to warrant a new trial. I do not think that the court should infer that the judge was guilty of the error here in question. It was then submitted that his Honour had erred in his assessment of the medical evidence. In this regard, the error suggested related to the use to be made of the diagnostic material in evidence, namely, medical thermograms and an EMG examination and report. The significance of these lay in the extent to which they provided confirmation that the plaintiff had in fact suffered a back injury. Her case suggested that she had a back injury in the L5-S1 level of the spine or generally in that area and that 6 UNREPORTED JUDGMENTS that could account for the pain she claimed to suffer. For the defendant it was submitted that there were no diagnostic or clinical signs to support the plaintiff's claim to such an injury. His Honour dealt at length with the thermogram evidence. He preferred the evidence of Dr Peter C Gray and his conclusion that they were such that they "in this case should be disregarded". Dr Gray concluded that in a case such as the plaintiff's, "the assessment of disability has to rely on clinical evaluation". I see no relevant error in his Honour's conclusion in this regard. In relation to the EMG examination Dr Graeme Shepherd had reported that the plaintiff "underwent EMG and nerve conduction studies" on 19 January 1990 and that "there is electrophysiological evidence of a partial left L(4)5,S1/2 root irritation". In his report of 5 March 1990 Dr Bannister referred to this and concluded that it "confirmed a partial left L5 - $1-2 root irritation consistent with her sciatica". The suggestion was that, the plaintiffs pain having been of the nature of sciatic pain, this provided confirmation of her claim. His Honour did not deal in terms with the significance of the EMG report and, it was submitted, this vitiated his conclusions. The suggestion was, I think, that this was inconsistent with the conclusion that "the plaintiff's complaints depend upon my assessment of her credibility". I do not think that that conclusion should be drawn. Apart from the reference in Dr Bannister's report, the plaintiff did not produce evidence to explain the significance of EMG examination or of Dr Graeme Shepherd's report in relation to the EMG and nerve conduction studies. In particular, there was (Dr Bannister apart) no evidence as to the significance of a finding of "root irritation" and whether that would have produced the pain and disability of which she complained. Dr Bannister said merely that it was consistent with "her sciatica". But the relationship of this to the accident and to the evidence given by, eg, Dr Royle and Dr Gray, was not explored in the plaintiff's case. I do not think that his Honour was required to pursue every detail of the medical evidence and, particularly in the absence of an examination of the matter, to attempt to assess the significance of each part of it. I do not see in his failure to refer in terms to the EMG examination appealable error in this regard. It was next submitted that his Honour erred in the use that he made of the film taken of the plaintiff. The plaintiff was shown a film of her walking to a nearby railway station. It was put to her that the film was taken on 14 December 1989. She did not reply to the suggestion, either to affirm or deny it. The date was not proved. His Honour said, and it is not I think contested in argument before this Court, that it "showed the plaintiff walking freely from her home to the nearest railway station". His Honour said that there was "not one scintilla of disability revealed about her walking. She walked fluently with both arms moving and she was carrying a light carry bag or shoulder bag in either hand from time to time". His Honour saw the film as inconsistent with what Dr Bannister had reported and, I think, of what the plaintiff had said. It was submitted that his Honour erred in this use of the film because, it was said, the plaintiff accepted she could walk without relevant difficulty for a period of time and that that period was sufficient to account for her walking from her home to the railway station as suggested. In cross examination she explained what the film showed by saying, "I am not too fit for walking and I have to try and walk to see if I can. I have to try". UFRRESPANOSKI v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Mahoney JA) 7 I do not think that his Honour erred in concluding that what he saw on the film, as he described it, was not consistent with the picture which Dr Bannister had given of the plaintiff in the various medical reports which he had given. It was to that that his Honour directed his main comment. Dr Bannister had, for example, reported on 14 December 1989 that the plaintiff had back and accompanying left side sciatica which was "constant", radiating into the back of the left thigh as well as the left calf and foot and other pains of various kinds. He reported that ankle reflexes were depressed, a forward flexion range of only 50 degrees with spinal pain and spinal movements painful. He described "her knee flexion extension movements" as "painful". There is, in my opinion, no necessary error in his Honour's concluding that the plaintiff, walking freely with not one scintilla of disability revealed, displayed a picture different from that referred to by Dr Bannister. The date of the film was not proved in terms and that was, of course, relevant, although the plaintiff did not suggest such an explanation in cross examination. It is not necessary to pursue what his Honour said as to the plaintiff when she walked, slowly and bent, in the court before him. Objection was taken to the use the judge made of the report of Dr Kalnins of 26 June 1989. His Honour said: "Dr George Kalnins concluded in his final report of 26 June 1989 as follows. 'I can find no objective signs to account for this lady's continued complaints of pain and feel that she needs considerable assistance in mobilisation of all her painful joints and areas of her body so that she can return to her normal work.' I feel that Dr George Kalnins is being kind to the plaintiff, he omits from saying that she is a malingerer." The submission suggested that Dr Kalnins' report supported the view that the plaintiff had genuine and objective pains and difficulties and that it was wrong for the judge to describe her as "a malingerer". This submission was based essentially on the concluding paragraphs of Dr Kalnins' report of 26 June 1989. The doctor said: "Tt is now obvious that she did not proceed to the operations which she told me she was going to have at her last visit as she indicated that she was too scared to have an operation. I can find no objective signs to account for this lady's continued complaints of pain and feel that she needs considerable assistance in mobilisation of all her painful joints and areas of her body so that she can return to her normal work." The submission was that the doctor accepted that the plaintiff in fact had "painful joints and areas of her body" and that accordingly her condition was as she claimed it to be. I do not think that that is a correct view of what the doctor thought of the plaintiff. The judge had in evidence four reports by Dr Kalnins. The first, dated 12 March 1987, recorded what had been found of her in the doctor's examination. What was recorded was, in my opinion, inconsistent with the pain and restriction of which the plaintiff complained and the doctor recorded, eg: "Fingertips were demonstrated as reaching to the level of knee joints in flexion, but I note that on the examination couch while sitting upright and knees fully extended she was able to lean forward and touch her toes in flexion. Other movements were demonstrated as nil. Straight leg raising was to 70 on each side. Neurology and circulation were normal in her lower limbs.", in order to indicate scepticism as to her complaints. The report concluded: "This lady has no objective abnormality either on Xray or clinically. On the basis of her complaints 8 UNREPORTED JUDGMENTS of pain she is totally unfit for work. She does of course need encouragement at gradual mobilisation and would need to continue with her own mobilisation exercising. In spite of such encouragement my impression is that this lady has an extremely poor prognosis and I doubt whether she will ever return to work of any kind." The doctor gave two reports dated 26 June 1989. In one report of that date, the doctor, having recorded what was found on examination, concluded with the two paragraphs on which the plaintiff relies. However, in the other report of 26 June 1989, the doctor concluded that the thermograph series "indicate that there is no true sciatica, ie, no nerve root pressure according to this test". He concluded by saying: "In the tests done on 28 March 1989, which included only a lower limb series it is suggested that these symptoms are consistent with an LS radiculopathy on the left. This is in complete contrast to the description of an L5-S1 distribution on the previous examination. You may also conclude of course from the reports of these medical thermography doctors that as she had both upper and lower body thermographic series performed she obviously has no pathology in her neck, right shoulder, right arm or left knee as they did not comment on any changes in these regions." In my opinion, what Dr Kalnins had concluded and what he was intending, albeit obliquely, to convey was that there was no objective basis for the plaintiff's complaints of pain, that she should "return to her normal work", and that this would require "mobilisation of all her painful joints and areas of her body" in the sense of achieving a resolve that there was nothing to prevent her returning to work. His Honour went beyond what Dr Kalnins thought appropriate to record in his reports and described the plaintiff as "a malingerer". I suspect that the doctor did not see the plaintiff in quite so simple terms. But the thrust of his reports indicated, I think, no basis in any physical injury at least for her complaints. Thave dealt with the main submissions made by Mr Toomey QC in support of the plaintiff's contention that the trial miscarried. I have concluded that, in substance, the plaintiff's contentions should not be accepted. In the end, to establish the right to a retrial, it is necessary for the plaintiff to show that, as a matter of discretion, such should be ordered. It is not every defect in the judgment of a trial judge which will lead to such a result: see, eg, Pt51, R16. It is necessary for the court to determine whether, within the limits of fairness and of the law, there has been a proper trial and a proper consideration by the judge of the case of each party. Even if some of the matters referred to disclose error of fact, I do not think that such errors would justify ordering a retrial. The evidence supporting the judge's conclusion was in my opinion substantial and strong. I do not think that a case has been made out for a second trial. In view of the nature of the proceeding before this Court, it is proper to add a further comment. It is the right of a trial judge to add, by way of reasoning, support for his reasoning, or comment upon the issues, such observations as may appear to him to be appropriate or necessary for the discharge of his duty. I would not wish to curtail the right of a judge to make such observations of this kind as, within the bounds of propriety, he desires to make. See Martin v Green (1984) 1 NSWLR 148 at 157F. However, as this case has shown, comments which are at the margin of a judge's reasoning may well lead to a mistaken understanding of URRRESPANOSKI v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Priestley JA) 9 what the judge has determined or mislead the parties as to the nature of his conclusions and indeed the fairness of them. In the present case, time and expense have been spent in the pursuit of an appeal which, fairly argued by Mr Toomey QC, has resulted essentially from observations which, as I think the submissions suggest, were apt to be misunderstood: see Hughes v Robert W Kirby and Ors t/a Combined Petroleum Service (Court of Appeal, 27 September 1991, unreported). In a case of this kind the judgment is and should be a professional statement of reasons directed to the parties and to the professionals who advise them: see generally Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). A statement of reasons framed and directed in this way will be of most assistance in the fair and proper discharge of the duties of the court. In my opinion the appeal should be dismissed with costs. Priestley JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for the Appellant: BJM TOOMEY QC/TJT WILLIS. Instructed by: FLANNERY, MURA, COSTELLO. Counsel for the Respondent: PJ FRAME. Instructed by: CREAGH and CREAGH.