GOVERNMENT INSURANCE OF NEW SOUTH WALES v HUGHES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 11 July 1994, 17 August 1994 [1994] NSWCA 111 Damages — quantum — no question of principle. Damages — quantum -whether evidence supported finding by trial judge that respondent genuinely suffering from conditions of which he complained; — held: it did — no question of principle. Priestley JA I agree with Clarke JA and wish to add one observation. A major feature of the appellant's case was a short and sometimes shadowy video of the respondent which the trial judge saw, and which this court saw. The trial judge said it made a substantial impact on him. In the result however, that impact was not sufficient to prevent the judge from accepting that the respondent was not a malingerer. I do not have any difficulty in concluding that this court should not interfere with this basic finding, both for the reasons given by Clarke JA, and, additionally because the actions of the respondent shown in the video did not have any major effect on me. The disjointed snippets in the video showed the respondent doing some things more freely than you would expect from his evidence, but not so inconsistently with the whole of the evidence before the court as to be irreconcilable with it. In my opinion what was shown in the video was by no means inexplicably inconsistent with the respondent's own account of his problems. I would dismiss the appeal with costs. Clarke JA This is an appeal from a judgment of Judge Levine QC (as he then was) given on 28 November 1991 in which he awarded the respondent, who was the plaintiff before him, a verdict in the sum of $334,812.68. The appellant has appealed from this award upon the grounds that his Honour erred in concluding that the respondent was genuinely suffering from the conditions of which he complained. The case is an unusual one. On the afternoon of 3 November 1986 the respondent was driving his motor vehicle home when it was struck from behind. His vehicle was a station wagon and there were a number of doors which were stacked in the back which, as a result of the force of the collision, were thrown forward and struck him in the back of the head and neck. The blows do not appear to have been very severe because he did not complain of any bruises or cuts. However, he was taken to the casualty department of Nepean Hospital and admitted complaining of weakness and parasthesia of the left arm and left leg, and twitching and weakness of the left side of the face. On examination there was a left-sided torticollis (a twisting of the head to the left), twitching of the left side of the face, drooping of the left corner of the mouth, weakness and parasthesia of the left arm and left leg. The respondent was transferred to Westmead Hospital for a CT scan. On examination at Westmead Casualty it was decided that the 2 UNREPORTED JUDGMENTS respondent did not need treatment there as he was suffering from "an hysterical reaction" and he was sent back to the Nepean Hospital. The respondent was allowed home from the Nepean Hospital the following day and seen by an orthopaedic surgeon, Dr Chung, on referral from his local practitioner. Following this examination he was seen by a neurosurgeon, Dr Segelov, a neurologist, Dr Beran and another neurosurgeon, Dr Besser, for investigation of the marked left sided symptoms and a possible brain, or brain stem, injury. According to the respondent his condition continued to deteriorate and at the trial he presented as a disabled man with marked left sided symptoms. The case that was initially presented was that he had suffered from a brain or brain stem injury. Ultimately his legal advisers abandoned this case with the consequence that much of the medical evidence which he had led became irrelevant. The withdrawal of the allegation of brain damage also meant that the trial judge was confronted with one issue and that was whether the respondent was suffering from an hysterical reaction. The alternative was that he was malingering. The evidence relevant to this issue was relatively confined and in the end the trial judge was satisfied that the respondent had proved his case that he was totally incapacitated by reason of a functional condition which had interfered with every aspect of his life consequent upon the accident of 3 November 1986. The appellant has contended that the trial judge was in error in this conclusion. The difficulty of accommodating the picture painted by the respondent in his assertions of marked disability, and his complaints of that disability to the doctors, with a video film, the viewing of which took eight minutes, showing the respondent engaging in a number of activities on 24 September 1990 (three days before the first hearing day of the case) was central to the submissions of the appellant. It should be said immediately that there was evidence that the respondent had presented himself to various doctors as being considerably disabled. Indeed his presentation was similar to, although not identical with, that of a person suffering from left sided hemiplegia. His oral evidence, however, suggested that he was able to do a number of things which would not have seemed possible to a person as disabled as he presented himself to various doctors. Notwithstanding it would seem that he presented himself to the court as a person suffering from a significant disability. I say this because of the following passages from the judgment under appeal: "The film shows the plaintiff in the course of searching under his house for a snake, walking, kneeling, crouching, supporting his body with his left hand on the verandah, carrying a shovel and at its end opening the door of a car with his left hand. I will straight away say that the impact of this film was substantial leaving me to ask myself is this the same man as the plaintiff?" [There was no doubt it was.] Clearly there was a significant difference between the respondent's presentation in court and the picture painted of him in the film. It must, however, also be observed that his Honour was alive to, and troubled by, the revelations in the video film and its potential impact upon both the respondent's credibility and his case in general. In considering this difficult issue his Honour turned to, first, the evidence of Dr Walker, a neurologist, who was, according to the trial judge, very impressive. In his report of 11 March 1991 Dr Walker, having seen the video, concluded that there appeared to be "a large functional overlay which may or may not be due to URJ GOVERNMENT INSURANCE OF NEW SOUTH WALES v HUGHES (Clarke JA) 3 an underlying psychiatric disturbance or perhaps an intentional wish to feign disability. His facial myoclonus would appear to clearly pre-date his accident and his other disabilities cannot be taken seriously in view of the video evidence". He was cross-examined at some length and was asked: "Well now to say that a person is suffering from an hysterical conversion reaction is very far from saying that the person is a malingerer isn't [it]? A. It is not actually it is very hard to differentiate the two. Here in this area where psychiatric assessment would be important although not necessarily diagnostic and I am not a psychiatrist, I would say that the features that I have seen would be equally as likely to be due to a psychiatric hysterical conversion reaction in someone who has a low pain threshold or who is feigning illness. I think there is a very grey area between those points." After some further questioning he ultimately came down on the side of an hysterical conversion reaction. But, as his Honour pointed out, the doctor did not explain how the inconsistency between the respondent's presentation to various doctors and the court and his behaviour as demonstrated in the video film could be accommodated in such a diagnosis. Mr Petty, counsel for the appellant, submits that this is the critical question but it is one which his Honour did not properly confront because, he contended, the evidence was all one way to the effect that the difference in the respondent's behaviour patterns was quite inconsistent with a genuine psychiatric condition. In his submission, and the trial judge's statement supports the submission, Dr Walker left this problem unanswered. I should say at once that I am far from convinced that Dr Walker failed to consider the problem of accommodating the inconsistent presentations with his diagnosis. My reading of his evidence would suggest to me that the doctor was very concerned about the problem of accommodation but, for the numerous reasons elicited during the cross-examination, came to the conclusion that the factors in favour of the hysterical conversion reaction outweighed the contrary factors. I will, however, put this view to one side in order to consider the submissions of the appellant. Mr Petty referred the court to the evidence of Dr Inglis, a general and vascular surgeon, who expressed a strong and clear opinion that the demonstration of the video film was inconsistent with the respondent having a proper functional disability. His evidence was supported by that of Professor Kiloh who gave the following evidence before being shown the video tape: "Q. If it is a true hysterical - put aside an organic basis for this plaintiffs problems, if it's an hysterical reaction, and it's genuine, would you expect at all times for there to be a limp for instance or a favouring of use against the left arm? A. Yes I would. Q. So if it's genuine, you wouldn't expect someone to walk normally or use the left arm in a normal fashion? A. No." He was then shown the video and gave the following evidence: "\.. perhaps five things that struck me for a person who reputedly had weakness of his left side. His lower limb as well as his upper limb, first of all, he seemed to walk quite normally and swing his arm quite well. In the early part of the film I noticed that he seemed to be able to support the weight of his body with his left arm. At some point in the middle of the film he was carrying a spade in his left arm. Fourthly, when he was manoeuvring with the verandah and shining a torch under it, he seemed to be using his left arm again on the verandah to support his 4 UNREPORTED JUDGMENTS weight, or to stop him falling. And fifthly, I think I got this correct, I'm not quite sure, but it looked to me as though he used his left hand to open the car door at the end." Q. And the movements you saw there, particularly with the left hand, were they inconsistent with the sort of things he could tell you that he could or couldn't do when you saw him? A. No. I wouldn't think so no. Q. Is it still your view that the plaintiff has no organic basis for these alleged left-sided problems that he has? A. Yes, indeed. Q. And is it still your view that he's a malingerer? A. I think that is the more probable of the two possibilities, yes, because I think had he had a hysterical weakness on his left side, he still wouldn't have been able to use his left arm the way he did in the film." This was a powerful expression of opinion by an eminent psychiatrist that the probability was that the respondent was a malingerer and the Professor was not cross-examined upon this conclusion. Various reasons were advanced by senior counsel for the respondent during the hearing of the appeal as to why there was no cross-examination upon the matter but, as Mr Petty pointed out, the fact remained that the professor's evidence had not been qualified in any way in cross-examination. During the trial senior counsel for the respondent contended that there were two essential weaknesses in Professor Kiloh's evidence. First, he was of the view that the respondent must have been malingering from the moment he first went to the Nepean Hospital. This opinion, counsel for the appellant conceded, was inconsistent with a finding of fact by the trial judge which he could not successfully challenge on the appeal. If this court must accept, as counsel conceded, that a proper finding had been made that the respondent was not malingering when he went to the Nepean Hospital then whatever the strength of the objection at the trial to Professor Kiloh's evidence his opinion as to the early onset of malingering presented a considerable hurdle to the appellant on the appeal. The second alleged weakness was Professor Kiloh's statement that there was no history of anxiety after the accident, particularly in relation to a sleep disorder. No doubt the professor believed that to be the situation but there was in fact evidence concerning both these matters in the evidence of Mrs Hughes and in a report from Ms Tracey Folk, a social worker employed in the Family Care Service of St Mary's Health Centre. This report makes telling reading and presents a picture of a family in considerable trouble in the four month period during which Ms Folk provided assistance. Having weighed all the arguments the trial judge found in the respondent's favour and in giving reasons for that conclusion referred to a number of factors, all of which were relevant including, most importantly, the 'evidence of overall consistency of conduct from the time of the accident'. The evidence given concerning the respondent's consistency of conduct was in the main that of himself, his wife and Tracey Folk., Accordingly, the finding that there was an overall consistency was a very important finding for, in my opinion, it constituted an implicit acceptance of the substance of the evidence given by those witnesses. It should be emphasised at this stage that the ultimate question whether the respondent had established that he was suffering from a psychiatric condition consequent upon the accident was a question to be decided by the trial judge upon his assessment of the evidence. Obviously, assistance can be provided to a judge URJGOVERNMENT INSURANCE OF NEW SOUTH WALES v HUGHES (Handley JA) 5 who is confronted with such a question by medical evidence. Experts are able to provide opinion evidence as to whether, for instance, it is possible that a particular person is suffering from a psychiatric condition and to provide pointers to assist the judge to determine whether the person whose case he is considering is in fact suffering from such a condition. Experts are able to testify, for instance, that there are features in the case which, from a medical point of view, are quite inconsistent with a finding of a genuine functional condition. But the answer to the ultimate question depends, to a large degree, upon the trial judge's assessment of the plaintiff, and the evidence of lay witnesses called either to support or diminish his or her case, and a decision in favour of the plaintiff will necessarily reflect the trial judge's conclusion that, having considered all of this evidence, the plaintiffs evidence should, in substance, be accepted. No doubt evidence given by an eminent psychiatrist that a person is a malingerer is of considerable significance in assisting the trial judge to reach his or her conclusion. But the evidence does not provide a conclusive answer to the question. In some cases it will lead a trial judge to conclude that a plaintiff is presenting a false case, which occurs when a malingerer seeks damages. On the other hand where a trial judge has concluded, in circumstances where the issue whether a plaintiff is a malingerer or not is fairly evenly balanced, that the plaintiffs evidence should be accepted it is not to the point to argue on appeal that the conclusion was inconsistent with an expression of a contrary opinion by a medical specialist. This must be so for it is the judge who is charged with the responsibility of assessing credibility and determining the issues in the case although in carrying out that task the judge will, no doubt, rely heavily on evidence given by medical experts which is within their area of expertise. An example of the type of evidence which will be particularly material was the evidence of Professor Kiloh that there was an inconsistency between the respondent's presentations. That was, according to the doctor, a strong indicator that the respondent was not suffering from a genuine functional condition. Nonetheless, it did not require the trial judge to reject the evidence of the respondent that he was genuinely suffering from serious disability, particularly in the light of Dr Walker's evidence. The acceptance of the respondent was at the core of this case and once it is recognised that the trial judge implicitly accepted the substance of the respondent's evidence at the trial the task confronting the appellant upon the appeal became a very difficult one indeed. The principles which guide an appellate court in an appeal of this nature are well recognised and appear in a number of cases. It is necessary only to refer to Chambers v Jobling [1986] 7 NSWLR 1, particularly at 20-21. While I accept unreservedly the probative value of Dr Inglis' and Professor Kiloh's opinions and the material shown in the video film that evidence was not, in my opinion, regarded in the light of the whole of the evidence, of such compelling force as to require the trial judge to reject the evidence of the respondent and his wife. Once there was an acceptance of their evidence a finding in the respondent's favour inevitably followed. In my opinion the appeal should be dismissed with costs. Handley JA I agree with Clarke JA. Appeal dismissed with costs. UNREPORTED JUDGMENTS Counsel for the Appellant: GR Petty Solicitors for the Appellant: Gillis Delaney Brown Counsel for the Respondent: DB Milne QC/ AP Quinlivan Solicitors for the Respondent: Paul K Bell & Co