YALLOURIS v BALMAIN DISTRICT HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 3 March 1994, 3 March 1994 [1994] NSWCA 354 NEGLIGENCE — psychological or psychiatric condition — whether caused by industrial accident — whether trial judge erred in concluding that appellant was "consciously malingering" — held: there was ample evidence on which the trial judge could find that appellant was "consciously malingering"'. Clarke JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal by the plaintiff from a decision of his Honour Judge McLachlan in an industrial accident case. The plaintiff was injured in two accidents in the course of his employment with the Balmain District Hospital as a maintenance fitter. The first accident occurred on 10 May 1983 when the plaintiff hurt his back and finger when a large metal screw some feet in length suddenly came loose and the plaintiff suddenly took the whole weight because his assistants let go. The second accident occurred on 26 August 1983 when the plaintiff fell from a ladder onto his left hand side striking his head against the ground. He was off work for only a short period after the first accident and was away for ten days after the second. He then returned to work and continued at work with the hospital until August 1985 when owing to an unsatisfactory attendance record his employment was terminated. The action was heard by Judge McLachlan in May 1990, judgment being given on 9 May. This appeal has taken a long time to come on for hearing and is more than two years older than other appeals heard by this Court in the damages list this week. The Court has not been responsible for the additional delay in the present case. The trial Judge assessed the plaintiff's damages at $68,901.54 and after deducting workers' compensation payments entered judgment for $54,035.20. The appellant has appealed alleging that the award was inadequate seeking either a new trial or a re assessment by this Court. The plaintiff has not worked at all since his employment with the hospital was terminated in August 1985. The trial judge said correctly that the claim was a complicated one because the two accidents undoubtedly aggravated pre existing pronounced degenerative changes in the plaintiff's spine but more especially because of what his Honour described as the rather unusual form of psychological or psychiatric condition which has supervened on the accidents. The real problem at the trial was to determine whether the plaintiff's psychiatric condition was genuine and was causally related to the accidents or whether it arose independently. The trial judge first considered the effect of the two accidents on the plaintiff's physical condition. He found that on a consideration of all the medical evidence and the plaintiff's evidence he was led to a conclusion that the results of the two injuries on the plaintiff's back and spinal cord had caused aggravations to his pre existing conditions but by the date 2 UNREPORTED JUDGMENTS of trial such aggravations had ceased. He amplified this finding by holding that the plaintiff's orthopaedic and other non psychiatric disabilities caused by the accidents had ceased after two years or less. That is at about the time his employment with the hospital was terminated. Those findings have not been challenged. The real difficulty arises in relation to the psychiatric condition, which the plaintiff was or was allegedly suffering at the date of trial. As I have said, the plaintiff returned to work after an absence of ten days following the second accident and thereafter worked for a further two years despite some absences. He was seen by Dr Puflett on behalf of the defendant on 19 February 1986. Dr Puflett reported: "Nervous disorder. Patient has symptoms which are on occasions psychotic. I believe that this man's major problem is a nervous problem. I do not think the fall was any more than a temporary aggravation of this condition. I believe he has always been nervous and I believe that this is colouring all his complaints and conditions." A little later he was seen by Dr Greenberg at the request of his own solicitors and that doctor reported on 18 May 1986: "From the history available Mr Yallouris developed a post concussional syndrome as a result of the concussion sustained in the accident in August 1983. This appears at the time of this examination to have resolved with the possible exception of a mild impairment of recent memory function though this with his complaint of impaired concentration is likely to be indicative of a continuing mild reactive depressive state consequent upon his incapacity and its results for him occupationally since the fall." His real or apparent psychiatric condition thereafter deteriorated. On 1 March 1990 Dr Greenberg reported: "Mr Yallouris presents his bizarre complaints with normal affect. One must conclude that he has developed a psychotic hypochondriasis centred around whatever organic disabilities derive from injuries sustained in the fall in August 1983. Litigation factors doubtless play a part in maintaining this delusional system and after conclusion of litigation the delusional beliefs are likely to become of less significance to Mr Yallouris, though not to resolve. I doubt that his bizarre complaints are the result of conscious malingering, though they may represent psychotic elaborations of ill understood medical comments." Earlier, Dr Roberts, qualified on behalf of the defendant reported on 20 April 1989 had come to similar conclusions. He noted that there was nothing in terms of the plaintiff's autonomic nervous system dysfunction to suggest that he was suffering from an increased level of autonomic activity which would be consistent with increased anxiety levels. He also noted that the plaintiff did not have any symptoms of a nervous disorder of a reactive type. Like Dr Greenberg he observed that the plaintiff's description of his symptoms was bizarre and not consistent with any medical condition of a physical nature. He noted some inconsistency between the plaintiff's complaint of noises in his head and the effect on him while experiencing those noises of external noises. He commented that such symptoms were simply not tenable. He added that there was no physical explanation for the man's symptoms and continued: "Two alternatives are left: either that Mr Yallouris is relating a constellation of symptomatology which is clearly impossible with a view to asserting disability on the grounds of a minor injury, or alternatively, that he genuinely believes the symptomatology that he describes. If he is asserting symptomatology simply to URJ YALLOURIS v BALMAIN DISTRICT HOSPITAL (Handley JA) 3 attempt to present himself as ill, he is simply a malingerer. If he genuinely believes he suffers from the bizarre symptomatology that he alleges this man is psychotic." The doctor continued: "In either event... neither condition would in any manner be able to be related to the circumstances and conditions of his employment and the symptomatology that he alleges, if it is assumed that he was psychotic (sic), is the result of an elaboration in virtue of the presence of a disease of the mind, of symptomatology that have nothing whatever to do with the injury sustained by him." His ultimate conclusion was that it was more likely that the plaintiff had an underlying psychotic condition than that he was a malingerer although the latter could not be excluded. His Honour's finding as to the plaintiff's psychotic or psychiatric condition was as follows: "As to the psychiatric condition, I accept that the plaintiff's condition was to a degree related to the accident but that any such relationship has long since ceased and for a considerable period the plaintiff has been consciously malingering." This finding with due respect to his Honour is cryptic to the point of being unclear. One of the real difficulties in this case is that it would seem on the evidence that the plaintiff since the second accident has suffered from two conditions: initially, he suffered from what Dr Greenberg described as a mild reactive depressive state which was consequential on his physical injuries. This condition was followed later by a bizarre psychotic condition which was unrelated to his actual injuries and his real symptoms. It may be that his Honour really found that it was this initial condition identified by Dr Greenberg which was "to a degree related to the accident" and that such condition had since ceased, that he further found that there had never been a genuine psychotic condition at all and that, therefore, the plaintiff's complaints were the result of conscious malingering. However, if his Honour intended to make these findings he failed to express them. For my part, I would not be prepared to dispose of this appeal on any such interpretation of his Honour's reasons for judgment. Nevertheless, his Honour did clearly and unequivocally find that "for a considerable period the plaintiff has been consciously malingering". Since he had earlier found that any physical condition caused by the accident had ceased nearly five years before trial it followed from his Honour's finding of conscious malingering that the damages to which the plaintiff was properly entitled had to be assessed for a closed period ending during 1986. The appellant has submitted that his Honour was not entitled to find conscious malingering in the present case. I do not agree. While no doctor actually said that the plaintiff was a conscious malingerer many doctors reported the absence of any physical cause for the plaintiffs complaints and this necessarily gave rise to the alternative conclusions posed by Dr Roberts in his report. His Honour had ample opportunity to observe the plaintiff giving evidence during the trial and to form his own assessment of the plaintiff on this critical issue. There was, in my view, ample material on which a finding of conscious malingering was fairly open. In particular the plaintiff's evidence about his supposed fracture of the skull, even as it appears from the cold page, provides ample support for his Honour's ultimate conclusion of conscious malingering. When the plaintiff was first asked in cross examination whether he had been told 4 UNREPORTED JUDGMENTS by doctors that he did not have a fracture of the skull he denied being given this information by any doctor. In particular he denied being told this by doctors at the Balmain Hospital. He was thereafter cross examined by counsel for the defendants but gave what appear on the transcript to be evasive and non responsive answers. Finally, this appears: "Q. You have been told by a number of doctors, have you not, that your skull is not fractured? A. No, what I noticed about the doctors.. HIS HONOUR: Mr Yallouris, I am sorry to interrupt you but we will be here all week and into next week unless you can try to discipline yourself. You hear a question, answer it shortly. Mr Arden (counsel for the plaintiff) there is doing an excellent job for you, so you look to him to protect you. Answer the question or we might be here all month. (COUNSEL) Q. I suggest to you you have been told by a number of doctors your skull has not been fractured, do you agree or disagree with that? A. Yes. Q. How many doctors to your recollection or memory have told you that? A. I cannot remember how many doctors. Q. More than one? A. More than one." It seems to me it was open to his Honour on this evidence to conclude that had the plaintiff been suffering from a genuine delusional state about the advice he had been given by the doctors he would not have changed his evidence in such a dramatic fashion after such a short cross examination directed to the issue. I conclude, therefore, despite the somewhat unsatisfactory nature of his Honour's reasons, that he was entitled to find that the plaintiff was consciously malingering and on that basis the judgment cannot be disturbed. I would propose, however, that the appeal should be dismissed with costs. CLARKE JA: Like Handley JA I regard this appeal as difficult of resolution. The difficulties which have arisen result in my opinion from the economy of reasons of the trial judge. There were, as the trial judge noted, complex questions as to whether the appellant had suffered from physical injuries and if so how long they had continued; whether the physical injuries, if in fact there had been such injuries, had been exacerbated by a neurotic or nervous overlay; whether the appellant was suffering from a psychotic condition and if so whether the condition was related to the accidents and whether and to what extent the appellant had been malingering. The resolution of the issues concerning the alleged psychotic condition was not a simple exercise and the need to pay regard to the possible differences between the nervous and psychotic conditions was itself not unimportant. Unfortunately, his Honour failed to recognise or at least to express his recognition of the possible distinctions between the two conditions and seems, although I cannot be sure of this, to have lumped them together in a way which has made it difficult to determine his reasoning process. Despite these difficulties, I have in the end decided that Handley JA is correct in his interpretation of the case and that for the reasons given by his Honour the appeal should be dismissed. I must, however, emphasise that it is of first importance that trial judges furnish clear reasons which resolve all important issues of credibility and fact and which enable the parties and appellate courts to follow through the line of reasoning URJ YALLOURIS v BALMAIN DISTRICT HOSPITAL (Clarke JA) 5 which results in the ultimate conclusion. In this case the only finding on credibility was the finding of conscious malingering which carried with it an implication of a rejection of the evidence of the appellant. If there had not been the confusion between the neurotic and psychiatric conditions this may have made the line of reasoning clear. But the terms of the judgment under consideration, I regret to say, have made it well nigh impossible to appreciate the precise course to his Honour's conclusion. I agree with the orders proposed. Sheller JA I, like the other members of the Court, have had some difficulty inunderstanding the critical part of his Honour's judgments to which reference has been made. I agree for the reasons that have been given by the other members of the Court that it was open to his Honour to find that for a considerable period the appellant had been consciously malingering. This possibility was acknowledged by Dr Roberts. His Honour's finding seems to me to rule out the contention that the appellant's behaviour was relevantly explained by psychotic illness. His Honour regarded the relationship of any other psychiatric condition as having long since ceased. So understood it seems to me that his Honour's reasoning and finding was open to him and, accordingly, I agree that the appeal should be dismissed with costs. Clarke JA The orders of the court will be as Handley JA has announced. Appeal dismissed with costs. Counsel for the Appellant: R COLQUHOUN Instructed by: COLQUHOUN and COLQUHOUN Counsel for the Respondent: C O°>CONNOR QC/CJ CALLAWAY Instructed by: SOLICITOR FOR GOVERNMENT INSURANCE, OFFICE OF NEW SOUTH WALES