GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v LUONG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 2 April 1992, 2 April 1992 [1992] NSWCA 87 MOTOR VEHICLE ACCIDENT — WHETHER TRIAL JUDGE IN POSITION OF ADVANTAGE IN ASSESSING EXPERT EVIDENCE AS TO BRAIN DAMAGE APPEAL from Common Law Division — Injuries in Motor Vehicle Accident — Whether trial judge in position of advantage in assessing expert evidence as to brain damage — Proper approach to evidence of Expert Witnesses. SUBJECT to agreed variation, appeal rejected. Mahoney JA The plaintiff was injured in a motor vehicle accident on 11 May 1987. She sued the defendant in accordance with the statute for compensation for the injuries she suffered in that accident. On 12 December 1990 Enderby J gave judgment for the plaintiff for an amount of $339,447. The judgment is made up in the following way: SUMMARY General Damages $75,000 Interest on past general damages, assessed at $8,400 $30,000 Out of pockets $3,682 Past economic loss $47,880 Interest on past economic loss $13,406 Loss of future earning capacity $191,079 $339,447 His Honour, as the summary I have set forth indicates, awarded an amount of $8,400 as interest on past general damages of $30,000. It is agreed between counsel that this amount should not have been included in the judgment and that it must be deducted from the amount awarded. That would leave a judgment of $331,047. That is the amount which is now in issue. There have been two main submissions made by the appellant / defendant in these proceedings. They relate to two related matters; firstly the existence of the brain damage said to have been suffered by the plaintiff in the accident and the extent of it; and secondly the question whether a proper allowance has been made in respect of one aspect of the award for past economic loss. In order to consider these two related matters it is necessary to refer to the learned judge's findings in relation to the facts. The plaintiff was injured when a motor vehicle in which she was riding as a passenger was involved in an accident. The driver of the vehicle in which she was riding was her husband. The learned judge referred to the facts of the accident in the following way: "Tt is not necessary for me to say very much about the circumstances in which the accident occurred except that they were violent. The plaintiff was sitting in the passenger side front seat at a time when her husband was trying to negotiate 2 UNREPORTED JUDGMENTS a U turn in his vehicle. He was backing and was struck violently from the rear near side by another vehicle. The force of the impact caused the car to swing around and strike yet another vehicle. I accept that the plaintiff injured her head in the way in which she describes. She now has a depression in the forehead which can be described as shallow, perhaps 3/16ths to 1/4' deep in its deepest part, and perhaps two and a half inches wide in diameter. There is scarring to be seen quite clearly. Apart from this, the principal ongoing injuries suffered by the plaintiff are said to have been of the brain damage type, although it has been said also that the extent of her brain damage was not great and that she suffers as much if not more, from psychiatric and psychological problems as she does from problems caused by organic damage." The plaintiff did not, she said, recall - and I put the matter in the neutral sense - the detail of the accident other than that she saw the other vehicle coming. A description of the locus of the accident was given by the police officer, Mr Mackey, and it is not necessary to refer to the detail of it. As I have said, the main issue in the proceedings related to whether the plaintiff suffered the brain damage which she claimed to have been suffering and the extent of it. The learned judge had before him the evidence of a number of doctors, and in addition written material. His findings were formulated in the following way: "The main question for me is the extent to which her injuries have changed this future and in particular, whether they have for practical purposes, made her unemployable. There has been a dispute about whether she lost consciousness after the accident. The relevance of the question whether she lost consciousness or not relates to the question of whether or not she suffered brain damage. I am of the opinion on the probabilities that she did lose consciousness for some unknown period of time. She has double vision and headaches and complains of dizziness. I also observed when she walked from her seat in the court to the witness box that she was for a short time a little unsteady on her feet. If so, this would be consistent with her evidence that she occasionally has sudden dizzy spells. She has been seen by a great number of doctors of the medico legal kind, but very few from a treating point of view. I put this failure to consult treating doctors down to cultural factors and not to the fact that she does not suffer from the problems that have been the subject of her evidence. She and her husband have been criticised by Mr Bartley of counsel for the GIO, who has argued that her condition cannot be all that serious if they have not been prepared to seek out specialist assistance for her in her condition. It has also been argued that it weakens or destroys the claim she makes for ongoing future medical expenses. There is some merit in this latter argument. The partial answer to the first argument is, however, that she lives in what I will call a Vietnamese migrant enclave in Cabramatta and for reasons associated with cultural differences this has not happened. With the conclusion of this case, it may well change. She has memory and concentration problems and problems with her neck. The neck condition is the only condition that is not related to her mental condition. She still gets some occasional pains in the chest. She has been described by witnesses as being an amusing, happy person before the accident. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v LUONG (Mahoney JAB The photographs taken of her on her wedding and on other pre accident dates certainly suggest this. She is described now as being moody and cranky and very difficult to associate with and someone inclined to fly into a tantrum. I accept that. She does not socialise any more." His Honour then added: "A consequence of all the evidence including the medical evidence is that as a result of the accident, the plaintiff has suffered and continues to suffer from headaches, occasional double vision, dizziness, anxiety about being driven in cars, depression to the stage of insomnia and diminution of sexual capacity, lack of concentration and memory loss. She has also lost the little English she had. Her quality of life has been very much impaired and she has been made unable to do the things that she always wanted to do and was able to do. Her injuries, in my opinion, include a measure frontal cerebral atrophy which is permanent. She also has a rather serious cosmetic depression and problem as far as her forehead is concerned. She takes medication for these conditions. She has suffered brain damage. I am also persuaded that she has an ongoing psychiatric problem as well independent of that organic brain damage." In arriving at his conclusion that the plaintiff had suffered the brain damage to which his Honour referred, his Honour depended substantially upon the evidence given by two doctors who gave evidence before him, Dr Anne Stephenson, a psychiatrist, and Dr Frith, who included in his expertise neurology. His Honour said: "Generally, I prefer the evidence of Drs Stephenson and Frith. Dr Frith in particular impressed me very greatly. Regarding the evidence of Dr Langludekke, I found that to be less persuasive. Talso found Dr Burke's evidence less persuasive. Dr Dyball is always helpful, but in many ways although not as strongly, his relevant evidence was not inconsistent with that of Dr Stephenson and Dr Frith. For example, there is evidence which I accept that the plaintiff suffered memory loss as it related to the events following the accident. Dr Dyball accepted that this was the most reliable measure to diagnose the severity of any brain damage." In arriving at his conclusions that there was brain damage, and damage to the extent to which his Honour referred, his Honour relied to a significant extent, in my opinion, upon the impact of the witnesses who gave evidence before him, and in particular upon the impact of Drs Stephenson and Frith. Those two doctors, as well as Dr Langludekke, gave evidence before him and provided written material. Dr Burke and Dr Dyball also gave evidence; they were called by the defendant. Where, as in my opinion is the case in the present appeal, the trial has been influenced by the impact of the witnesses before him, then the considerations to which reference was made in the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 apply. At least they apply to the extent to which reference was made in this Court in the decision in Ahmedi v Ahmedi (1991) 23 NSWLR 288, and to which I referred in a dissenting judgment in Chambers v Jobling (1986) 7 NSWLR 1 at 25-6. They limit the extent to which this Court may interfere. I think that this has been accepted by Mr King on behalf of the appellant / defendant. 4 UNREPORTED JUDGMENTS In view of the importance of this aspect of the matter in the present case and in the acceptance of the witnesses by the learned judge, and its importance in relation to the attitude which this Court must take to that acceptance, it is proper to add this. The principles to which the reference was made by Clarke JA and Handley JA in Ahmedi v Ahmedi are principles which, in my opinion, have a beneficial effect in the administration of justice. I do not mean that, by those principles or the acceptance of them, this Court is bound to do what is not just, or to give effect to conclusions which are contrary to the law, to the intention of Parliament, or to the facts. The principle involved is essentially this. In determining which of conflicting witnesses is to be accepted, the trial court may be influenced in appropriate cases by what it sees of the witnesses before it and may legitimately take those matters into account. It does not follow that in every case the court will be assisted by, as it is sometimes misleadingly described, the demeanour of a witness. Whether it will be so assisted must depend upon the circumstances of the case. And the court will always call in and, for testing what a witness has said, the rules of logic, internal consistency and other matters insofar as they are relevant or of assistance in the particular case. But, as it has been said in other cases, it has now been accepted that this principle can be of assistance in the process of dispute resolution in some cases. If, in the particular case, the trial judge has been so assisted, then the attitude which this Court must take to the position of advantage of the trial judge in that regard is clear. I would apply the principles in the present case to the findings which have been made by the learned judge. Mr King did not substantially dispute the application of these principles. What he sought to do was in the main to bring the present case within, as I shall describe it, the qualification which has been adopted to the application of these principles. It is clear that, as the authorities show, the conclusion of a judge dependent upon or influenced by the effect of a witness may be put aside if the judge has, for example, misused or not used his position of advantage. I do not mean to state comprehensively all of the qualifications to the Abalos principle. But in the present case Mr King relied in the main upon two matters; the evidence as to the plaintiff's unconsciousness following the accident, and the significance of the psychological testing undertaken by Dr Langludekke. These are related matters but I shall refer to them, at least initially, separately. It was accepted at the trial that in determining whether the plaintiff had suffered brain damage it was relevant to know whether following the accident she had suffered a period of unconsciousness and the length of that period. In order to understand the significance of this, I think it is proper to say that the inference from the evidence was that in determining whether the complaints from which the plaintiff said she suffered, namely dizziness and the like, were the result of brain damage, the existence of a period of unconsciousness following the accident is a relevant but not determinant factor. I think that is essentially the effect of the evidence relied on in this regard. The evidence as to whether there had been a period of unconsciousness and the length of it was not entirely consistent. Mr. King, in careful detail, took the court through the evidence and pointed to, as he suggested, differences between the account which the plaintiff had given to the doctors at different times. The plaintiff said in her evidence in chief, given through an interpreter, that she had in fact been unconscious: the word "unconscious" was used. She also gave evidence which would, in some respects, have otherwise been consistent with her \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v LUONG (Mahoney JAB lack of recollection of what took place immediately at and shortly after the accident being due to retrograde amnesia. These two matters were referred to by Mr Morris in his submissions. There was, as Mr King pointed out - and it is not necessary for me to pursue the detail of these matters - a difference between the accounts of what the plaintiff had said or what had been said on her behalf to various doctors. Some accounts referred to there having been no period of unconsciousness; some referred to periods of unconsciousness. It may be, and I shall assume, that these accounts of the doctors' evidence cannot in their elliptical terms be completely reconciled. There is also, for the purposes of this argument, an inconsistency between them. The question then is what is the conclusion to be drawn from such an inconsistency, if it is assumed to exist, and what effect it has to have on the learned judge's acceptance of the evidence of (principally) Dr Stephenson and Dr Frith to which I have referred. I do not think that what the learned judge accepted from those last mentioned doctors as to whether there was a period of unconsciousness invalidates the judge's acceptance of the opinions of those two doctors. It may be that the proper conclusion is that there was no period of unconsciousness. I shall assume that to be so without so deciding. But even if that be so, in the end the question is what is the significance of this. The learned judge accepted the plaintiff as a person who had given evidence of the truth of the matter, to the best of her capacity. She had spoken directly of "unconsciousness". It may be that she was confused. It may be that she made a mistake or that mistakes were made on her behalf in recounting the matter to other doctors. It may be that the doctors themselves made mistakes in relation to the matter. I do not think it was suggested that the plaintiff and her husband, who both spoke of unconsciousness, were deliberately fabricating their evidence with a view to building up a case of brain damage. If it was, that is a suggestion which I would not adopt. I do not think that either of these witnesses would, for example, have appreciated the significance of a period of unconsciousness as one of the indications from which a conclusion of brain damage could be drawn. In the assessment of her signs, symptoms and tests, this factor, unconsciousness, is to be put in the area of uncertainty. But I do not think that the result of that is to remove his Honour's position of advantage in the assessment of these two witnesses. I come to the associated matter, the psychological testing. Dr Langludekke, a qualified psychologist, did two tests of the plaintiff with a view to ascertaining, as far as psychological tests may do, whether she had suffered organic brain damage. The first test which she did suggested, and I think strongly, that there were signs of organic brain damage. But the psychologist said in her evidence before the court that she had had doubts as to the validity of that first test and that it was the second test upon which she relied. She stated at length the results of her testing, and then set forth in her report details of her conclusions from that testing. Putting the matter broadly, it was the statement of her conclusions rather than the details of her testing which were relied upon by Mr King. As the matter is of significance and reliance has been placed upon it, it is proper that I set forth the summary of the opinion arrived at by Dr Langludekke in this regard: "SUMMARY AND OPINION 6 UNREPORTED JUDGMENTS Psychometric testing fails to reveal any evidence of significant cognitive impairment, apart from mild deficits in immediate / short term verbal memory. Frontal lobe functions, including planning, verbal fluency, and abstraction would appear to be largely intact. It is important to point out that this conclusion is based on only quite basic assessment of her verbal abilities and language skills due to her poor command of English. It is possible that Mrs Luong's short term verbal memory problems are attributable to very mild and highly localised organic brain damage as a result of the head injuries which she sustained in a motor vehicle accident on 11 May 1987. As over three years have elapsed since her head injuries further significant improvements in her memory functioning are unlikely. Mrs Luong's memory problems can be expected to mildly compromise her reliability in performing work duties as a sewing machinist." I feel that a good deal of the suggested difference of opinion between, on the one hand, the psychological report and the evidence given by the psychologist, Dr Langludekke, and, on the other hand, the evidence of Dr Frith, arises from a measure of confusion as to the meaning of the terms used in the report and the evidence and the significance to be given to them. In the end the evidence that Dr Langludekke gave as to what the tests showed, the evidence given by her orally before the learned judge, is, I believe, most instructive of what she finally thought in relation to the matter. In cross examination the doctor said this: "Q. And those are the tests which would reveal nothing indicative to a change in her ability to work from her premorbid state? A. She certainly had short term verbal memory problems. The intrusive errors, confusion is also something that we see with brain damage. It is very rare to get it in the normal population but confusion starts and that is indicative of what I would consider an organic memory impairment. Q. But accepting that, not something that would prevent one holding down an ordinary factory job, without wishing to demean the ability of that work? A. Simple repetitive manual tasks. HIS HONOUR: Q. What about a dressmaker doing quality dressmaking work? A. She would certainly have difficulty doing anything that involved designing or abstracting from perhaps one design to another, higher sorts of skills, but she could sit and do simple sewing around the border. Once again very repetitive tasks." I think that that may be taken as a fair representation of the results of the testing which Dr Langludekke undertook. It was that which, in my opinion, she was seeking to convey in the summary of opinion which she gave at the end of her report of 4 July 1990. There is no doubt a degree of difference between her conclusions as to the extent of the brain damage and the brain damage which Dr Frith assessed. He saw the brain damage as being moderate to severe. She would say there is some loss. But the significance of the loss lay in what the plaintiff would be able to do in the future. The loss which she attributed to it does not, I think, differ in a great measure from the assessment Dr Frith gave in his evidence. I think there is a difference of emphasis between these two specialists. This is not surprising. But I do not think that it destroys the significance of the evidence of either of them. In particular I do not think the fact that there is that difference resulted in his Honour's decision to prefer the evidence of Dr Stephenson and Dr Frith to that of the other witnesses and (to the extent that there was conflict) to \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v LUONG (Mahoney JAY that of Dr Langludekke falling within the qualifications to the Abalos principle. I do not think that it has been shown that the Abalos principle is inapplicable in the present case or that the learned judge misused or failed to use appropriately his position of advantage. I would conclude that his Honour's acceptance of the two witnesses was an acceptance behind which this Court should not go. Putting those matters aside and assessing the evidence as to brain damage and the effect of it directly from the witnesses, I would arrive at substantially the same conclusion as his Honour. I am conscious that in this regard I would come to an opinion different from that of eminent medical practitioners such as Dr Burke and Dr Dyball. But having read in detail the evidence given by Drs Stephenson and Frith in the witness box and considering the terms of their reports, I would find what they have said convincing. Iam drawn to this conclusion in particular by the fact that what they have said accords with and is consistent with, in the relevant respects, the evidence given by the plaintiff as to the difficulties under which she now labours and what she said about them. The learned judge accepted the plaintiff as a witness attempting to tell the truth. I do not think it has been suggested that his Honour was wrong in this regard. If it be taken as a basic fact that the plaintiff is suffering from the conditions to which she has referred and did not suffer from them previously, then the opinions which were given by Dr Stephenson and Dr Frith provide an explanation for what has happened. I think their evidence provides some basis upon which one can understand how it was that the plaintiff changed from what she was to what she now is. I think that in those circumstances what they said should be accepted. This leaves the question of whether even if the plaintiff suffered injury in the manner and to the extent referred to, she yet has residual incapacity for which account should be taken in the assessment of past and future economic loss. In this regard it is important to have regard to what was said by the medical witnesses. Dr Stephenson in her report to the court concluded with these words: "Mrs Luong is unlikely to work again and fully enjoy the benefits of her family and social life. It could be expected she would experience difficulties with child rearing and require considerable supervision and support." Dr Frith describes the brain damage that had been suffered by her as moderate to severe and in evidence in chief gave his opinion as to her capacity following the accident. He said: "HIS HONOUR: Q. Do you have an opinion about it? A. Not a very strong one, your Honour. She has tried to go back to work and failed in the effort. She said it was due to lack of concentration and I believe her. This morning she had no recall of recent events and her distant memory was far from good. She's been through a series of solicitors and legal firms due not to her fault but changes within the two firms and she doesn't even know the sex of the people who have been looking after her, whether male or female. She thinks it is a man and letters are signed by a lady. JENKYN: Q. Perhaps could you answer the question, Doctor. Do you see in the real world her being able to get back into employment with these disabilities from this brain damage? A. No doubt with a considerate employer, I think she could find work but she couldn't work with machines for instance or on production lines if she is going to get sudden attacks. She certainly would not be employed in a factory. sewing, well, she says she can't sew and I believe her. But 8 UNREPORTED JUDGMENTS she is a presentable lady and she has at least two languages, maybe she could work part time as an interpreter, I don't know. This morning she spoke in Cantonese." Dr Langludekke in her report indicated the kind of work which she suggests the plaintiff could undertake. In her evidence she expanded upon this in the manner to which I have referred. She said that the plaintiff certainly had a short term verbal memory problem, that there were intrusive errors and confusion such as is seen in cases of brain damage. She was then asked whether the plaintiff would be able to do quality dressmaking work. She said: "She would certainly have difficulty doing anything that involved designing or abstracting from one design to another, but she could sit and be a simple sewing machine operator. Once again very repetitive tasks." The question is whether, assessing the plaintiff's capacity in that way, it is proper to treat her, as the learned judge did, as having in practical effect no residual economic capacity such as would produce income. The plaintiff is a person who before the accident had English language capabilities of a fairly low order. Since the accident those capabilities have diminished significantly. She is a person who now has a degree of depression and psychiatric difficulty to which reference was made in the evidence. I find it difficult to conclude that an employer, even a sympathetic employer, would be likely to employ her with all of her difficulties, even to do simple, repetitive manual tasks. I do not think that the learned judge erred in arriving at the conclusion that he did, that for the purposes of assessing compensation for economic loss she should be treated as he treated her, namely as being in effect without residual economic capacity. I conclude that the learned judge's assessment should not be set aside. The result, in my opinion, is that the judgment appealed against should be set aside and that there should be substituted for it a judgment for $331,047. That should date from 12 December 1990. Otherwise the appeal should be dismissed with costs. Priestley JA There is one matter on which I wish to express a reservation of opinion. Subject to that I agree with what has been said by Mahoney JA. The reservation of opinion relates to the technical matter of the effect of the decision in Abalos on the pre existing law on the aspect of the way the appellate courts should deal with findings of fact by trial judges. Iam not at the moment persuaded that what was decided in Abalos made any significant alteration to the pre existing law as it had been since the decision in Coghlan v Cumberland (1898) 1 Ch 704. When I say that at the present I am not persuaded of that, no occasion has arisen for the matter to be considered. It may be that no occasion will ever arise. If such occasion should arise I wish to be unencumbered by any previously expressed views. I agree with the orders proposed by Mahoney JA. Sheller JA I would wish to save myself from the encumbrance to which PriestleyJA has referred. Subject to that I agree with the judgment of Mahoney JA. MAHONEY JA: The orders are as I have proposed. ORDERS 1. Judgment below set aside. 2. In lieu thereof, judgment for $331,047 to date from 12 December 1990. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v LUONG (Sheller JAD 3. Otherwise, appeal dismissed with costs. Counsel: Appellant: L KING Respondent: A MORRISON Solicitors: Appellant: GIO OF NSW, SYDNEY Respondent: MICHEL SILLAR McPHEE MEYER