EID v MIDDLETON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and POWELL JJA 16 March 1995, 16 March 1995 [1995] NSWCA 139 DAMAGES — PERSONAL INJURIES — plaintiff injured in car accident — defendant admitted liability — issue at trial and for appeal was whether plaintiff's schizophrenia caused or precipitated by accident. Held: the evidence regarded most favourably from the plaintiff's point of view supported the view that the accident triggered or hastened an episode of the plaintiff's schizophrenia but an essential fact for finding a causal connection between the accident and the plaintiffs recurrent and continuing schizophrenia was not established. Priestley JA This is a plaintiffs appeal from a District Court judgment awarding the plaintiff $45,970 damages. The plaintiff had been injured in a car accident on 25 October 1980. The defendant admitted liability. The damages were assessed by his Honour Judge Christie QC. The principal contest at the trial, and the matter raised by the plaintiff in this appeal, was whether the schizophrenia from which the plaintiff undoubtedly suffered in March 1982 was caused or precipitated by the accident of October 1980. The plaintiff was in custody in gaol from June 1978 to August 1979 when he was released on parole. In July 1980 he was involved in an incident which led to his spending a further period in custody in 1981 and 1982. During this time he began to show what are called florid symptoms of schizophrenia. There is no doubt that these symptoms were manifesting themselves in March 1982, nor is there any doubt that their frequent subsequent recurrence would have entitled the plaintiff to substantial damages from the defendant if the defendant had caused them. Did the evidence show the defendant had caused the onset of the plaintiff's schizophrenia? The plaintiffs theory of the necessary causality depended on his having suffered a head injury of some description at the time of the accident. Counsel for the plaintiff today did not assert the plaintiff had suffered brain damage. He did refer the court to some evidence from which a concussive injury could be inferred. The plaintiff had gone to a local hospital on the night of the accident and was noted on examination to have gravel rash over his right shoulder, but no other injuries. No history was recorded of any loss of consciousness, nor was there any record made of any head injury. When the plaintiff returned to the hospital the following day he complained of a painful neck. Some days later he complained that he had suffered from dizziness, headache and double vision immediately after the accident. When the plaintiff was examined on 31 March 1981 his complaints were of headaches and of a sore neck. Nevertheless the argument today proceeded on the footing that there was some evidence of a concussive injury having occurred. 2 UNREPORTED JUDGMENTS I mention again that this was an essential step in the plaintiff's thesis that the injuries suffered in the accident had either caused or triggered schizophrenic symptoms which manifested themselves soon afterwards. Considerable lay and medical evidence was put before the trial judge on the issue of the cause of the plaintiff's schizophrenia. As the trial developed the opposing medical opinions became crystallised in the evidence of Dr Greenberg for the plaintiff and Dr Smith for the defendant. Dr Smith said in examination in chief at the second stage of the hearing, this being the second occasion when both he and Dr Greenberg gave opinion evidence about the plaintiffs schizophrenia: "Q. What is your own opinion in relation to whether schizophrenia can be precipitated by a head injury? A. Well, there are two ways that there can be an association. If someone suffers severe brain damage then the risk of developing schizophrenia rises by about three - it goes from 0.8 to about 2.4. The other way that a head injury could produce schizophrenia is if somebody was genetically predisposed then suffered a concussive injury that may trigger a single episode. Q. You are aware of the history of this plaintiff that it is claimed that he displayed florid psychiatric symptoms approximately a month after the motor vehicle accident and Dr Greenberg has expressed an opinion that those psychiatric symptoms have been precipitated by the motor vehicle accident? A. Yes. Q. You are aware also that he was sent to prison in May 1981 which is some seven months after the motor vehicle accident? A Yes. Q. Thereafter it is not until early 1982 some considerable time after that it is noticed in prison that he has any florid psychiatric symptoms. What would you think of that? A. Well, if he did suffer a concussive injury, we know he has a genetic predisposition to it, if he did suffer a concussive injury it is conceivable that that triggered off the symptoms of schizophrenia, triggered off an episode. The fact that it then remitted for some seven months would indicate that that episode triggered was self-limiting and that the subsequent symptoms of schizophrenia which arise seven months after arise quite independent of the accident and due to the genetic predisposition. Q. We are aware now that this man did have a predisposition to schizophrenia? A Yes. Q. We are aware also that his brother, John, had developed florid symptoms and schizophrenia from which he still suffers? A Yes. Q. John developed the symptoms shortly before the motor vehicle accident in 1980 and he is still suffering from some sort of schizophrenia. With that information what is the likelihood do you think that this particular plaintiff would have at some time triggered the symptoms of schizophrenia? A. Oh, it is most likely that he would have inevitably have become schizophrenic on that genetic basis, plus the fact that his behaviour prior to the motor vehicle accident suggested some anti-social traits. They are often found in people who ultimately develop schizophrenic symptoms. URJ EID v MIDDLETON (Priestley JA) 3 HUGHSTON: Q. You have read here the report of the Orange Base Hospital where Mr Eid went on the night of the accident and again the following day and you have also read the report of the general practitioner, Dr Matthews, who saw him within two days of the accident? A. Yes. Q. Is there anything in those reports to suggest to you that he suffered a head injury of sufficient severity to cause any brain damage? A. Well, certainly not in the casualty notes which make no mention of any head injury apart from a graze to the shoulder and subsequently on the following day some complaints about neck symptoms. In Dr Matthews' report there is Mr Eid's account that he had dizziness, headache and double vision for 24 hours. The dizziness and headache are not specific. The headache could certainly have been associated with neck injury, maybe dizziness. Double vision is a worry, maybe that suggests concussion. Q. When would you have expected symptoms and that brain damage precipitated the symptoms, when would you have expected symptoms to manifest themselves? A. Well, if he suffered severe brain damage resulting in a schizophrenic tendency then that can occur months or years later, although closer to the accident you are more confident of the causal link. If it is proposed merely that he suffered concussive injury rather than loss of nerve cells, then you would expect the effect to be immediate. Q. Are you aware of scientific data that suggests schizophrenic symptoms are raised by minor head injury? A. No, I am not. HIS HONOUR: Q. I think that question really means, Doctor, are you aware of whether minor head injury would precipitate schizophrenia - it can't cause it? A. Minor injury, no, can't cause it. Q. There is no question here, nobody alleges that head injury caused schizophrenia, but simply that it triggered it off, isn't that so? A. Yes." Although the plaintiff's counsel submitted this evidence of Dr Smith was significantly qualified in cross-examination, on my reading of the whole of his evidence I think his opinion remained substantially as set out in the above passage. On the other hand Dr Greenberg's evidence was eventually confined by cross-examination to the following statement of opinion: "Q. Does there have to be trigger at all to precipitate the symptoms in each case or can the symptoms simply occur? A. In most instances there is some trigger when one gets the full history. Q. I presume in most instances that is not a head injury? A. Quite so. Q. That would be only in very rare cases that there would be a precipitating factor? A. Yes, that is so. Q. In the majority of cases what are the types of things that would be considered to be the precipitating factors? A. Well, strong emotional disturbing events as you have suggested. It is also thought that injuries in the pre-natal peri-natal region produce some sort of brain dysfunction which later manifests itself. It is even thought - all these are theories, not established facts - that schizophrenia may subsequently develop following 4 UNREPORTED JUDGMENTS some kind of mild virus infection affecting the brain. All these are theoretical - something other than genetic predisposition is necessary. Q. What about brain dysfunction, the pre-natal brain dysfunction can later manifest itself, presumably there is no precipitating factor to these symptoms manifesting themselves in those circumstances? A. Often so, yes. Q. People can without apparent cause suddenly display florid symptoms of schizophrenia? A Yes. Q. You really cannot say one way or the other in relation to Mr Eid that the precipitating factor was more likely man not the head injury as opposed to numerous other matters which may have occurred? A. I certainly cannot say without absolute certainty. I can only say that it appears to me probable rather than possible mat GIVEN THAT HE HAD A HEAD INJURY, THAT HE DEVELOPED THE SYMPTOMS WITHIN A MONTH OR THEREABOUTS of that injury, that that was the precipitating factor. Q. Did you say that emotional stresses can be a precipitating factor? A Extreme emotional stresses. Q. Would you consider an extreme emotional stress in Mr Eid's case he was out on parole for armed robbery and that he several months before this motor vehicle accident assaulted a man in a hotel, and that he was about to face trial on the charges of assault and to face parole and be considered. Do you consider that might be a significant emotional stress? A. It might be." (EMPHASIS added) Both doctors were assuming, in expressing the opinions set out above, that the plaintiff had shown schizophrenic symptoms within a month of the accident. Dr Greenberg's opinion depended on the two premises of a head injury in the accident, and symptoms of schizophrenia within a month or thereabouts of the accident. The plaintiff called a number of witnesses who gave evidence of behaviour quite soon after the accident, symptomatic of schizophrenia. The trial judge carefully examined this evidence and came to the conclusion that he could not accept it in regard to the times of happening of the behaviour described. He based this conclusion on both his assessment of the evidence of the lay witnesses and the absence in the contemporary medical records of any note of the symptoms described by the witnesses. The trial judge summarised the conclusion he reached in regard to this evidence by saying he had reached the view that the evidence of those witnesses: ... WaS very suspect as to time. I say that not meaning to be highly critical of the veracity of these various witnesses although I confess I have some reservation about it but more as a criticism of the times at which these events occurred." A little later he went on: "Finding the lay evidence as to the onset of symptoms to be unsatisfactory I am more reliant upon the recorded episodes of symptoms of schizophrenia as they appear in the various medical records. Certainly there is no record of any florid episode until after the plaintiff had gone to prison for ie second time. Even if I accepted mat the plaintiff demonstrated some symptoms significantly closer to the time of the accident, which I do not, I would still be obliged to find mat such symptoms as he exhibited must have abated or remitted for a significant period of time until his symptoms were noted in prison. Such a view would URJ EID v MIDDLETON (Priestley JA) 5 accord with the opinion expressed by Dr Smith, at its highest in favour of the plaintiff, mat the episode conceivably triggered off the first incident and that that incident was self-limiting." (p 283 of the Appeal Papers) As well as the evidence of the lay witnesses concerning me schizophrenic symptoms having been noticeable within a short time of the accident, there was some evidence from the plaintiff himself that particular symptoms occurred within a month of the accident. However, the trial judge pointed out in another part of his reasons mat the first time the plaintiff reported those symptoms, which were involuntary movements of his head to me left and right, was to Dr Greenberg in 1986 when he said they occurred about three months after the accident. Later, in 1993, he reported to Dr Greenberg that they had started three or four weeks after the accident. It is apparent from the whole of his Honour's reasons that he did not accept the timing of this particular set of symptoms as accurately reported as occurring one month after the accident and took the time reported by the plaintiff on me earlier occasion as being the more accurate of the two times given. Looking at his Honour's findings of fact and accepting them, as this Court in the circumstances of this case must do, there was no evidence of any symptoms of a schizophrenic type manifesting themselves in the plaintifFs behaviour within three months of the accident having happened. In the opinion of the medical expert most favourable to the plaintiff the absence of any symptoms within that period meant that he could not support the opinion that he had formed on a different factual basis concerning a causal connection between the accident and the onset of the plaintiffs schizophrenia. Thus, once the trial judge had reached the position that he was not satisfied that any symptoms of schizophrenia had followed within a month or thereabouts of the accident, with the result that an essential premise to the theory and opinion of Dr Greenberg was not proved, then, Dr Smith's opinion not being similarly undermined, and otherwise acceptable, it was reasonable for the judge to accept it. In the appeal counsel for the appellant/plaintiff argued first that the judge should have accepted Dr Greenberg; second, that in the passage I have set out above from page 283 of the appeal papers, there were errors; third, that the judge had based his non-acceptance of Dr Greenberg's opinion, in part, on an unfavourable impression that he had formed of the doctor, which was not justified, and finally, mat one particular finding which I will mention in a little detail, subsequently meant that he must have accepted that the plaintiff did suffer some schizophrenic symptoms soon enough after the accident to fit in with Dr Greenberg's theory. As to the first point, what was before the trial judge was evidence from two experts who, in the end, reached a considerable degree of agreement about the medical matters involved in the formation of their different opinions, but who differed quite substantially in regard to the question of causation. A reading of the evidence of the two doctors, together with the other medical evidence which was before the court, shows no decisive reason why the trial judge should have preferred Dr Greenberg's evidence to that of Dr Smith. The case was simply one where the trial judge had to assess the reasoning of both the experts in light of the facts of the case, and come to a conclusion as to which one he preferred. The second point is one that I do not think it is necessary to deal with. Counsel took us to a number of passages in the evidence which, he submitted, showed that the trial judge's criticism of the professional approach of Dr Greenberg to the 6 UNREPORTED JUDGMENTS question he was dealing with was not well founded. It is not necessary to deal with that criticism because, as it seems to me, the fundamental reason for his Honour reaching the conclusion that he did was not the opinion he had formed concerning Dr Greenberg, which essentially was an opinion that Dr Greenberg had become wedded to his theory and was reluctant to adjust it in the face of circumstances he was not aware of at me time when he formed it, but was the absence of evidence, as his Honour viewed the matter, of symptoms of a schizophrenic kind having manifested themselves within the time necessary for Dr Greenberg's theory to work. This reasoning applies irrespective of any view the judge had concerning Dr Greenberg's attitude to a critical question in the case. The third of the four points of counsel for the plaintiff was directed to the passage earlier set out from page 283 of the appeal papers. The passage contains several matters upon which the validity of the judge's decision depends. Counsel for the plaintiff/appellant was bound to try and attack that paragraph. The basis of the criticism was that it did not accurately recount the factual matters which it contained. However, having read the materials on which that paragraph is based, it does not seem to me that any of the criticisms of its accuracy are justified. The paragraph seems to me to be a substantially accurate reflection of the evidence in the light of the judge's views as to the unreliability of the evidence given by the lay witnesses concerning the first manifestation of the plaintiff's schizophrenic symptoms in point of fixing the time of those symptoms. Thus far it seems clear, in my opinion, that the plaintiffs points of appeal have not shown any error on the part of the trial judge. There remains the last point made in the appeal, which depended on the finding I said earlier I would come back to which appears in the following paragraph: "In favour of the plaintiff I am prepared to find that such bizarre behaviour as might have occurred between the date of the accident and the time he went to the psychiatric institution during his gaol term was, to some extent, triggered or hastened by the facts of a concussive injury at the date of the accident. Consequently the plaintiff is to be compensated for that hastening of the episode." It was submitted, and with some logical force, that this paragraph is inconsistent with the earlier reasoning of the judge which I have indicated was, in my opinion, sound. I am not sure that the paragraph is really inconsistent with what the trial judge earlier said. He begins in a very conditional way by saying that he is prepared to find "that such bizarre behaviour as might have occurred", etc. By that use of language I think he was indicating mat he was not finding that mere was any relevant bizarre behaviour, but was _ indicating that, notwithstanding his adverse finding against the plaintiff, he was nevertheless prepared to give some small amount of damages against the possibility that such behaviour had occurred. In strict logic this may have been an error, but if it was, it was an error in the plaintiff's favour. I do not think that it reflects back into the judge's earlier reasoning to affect the course of that reasoning as I have understood it and endeavoured to explain it. The somewhat throw-away line nature of this paragraph is illustrated by the difficulty one finds in trying to locate where, in the heads of damage for which particular amounts were allocated by the judge, anything significant was given by him pursuant to the paragraph I have been dealing with Counsel for the plaintiff in the appeal dealt quite fully with a number of the matters which I have only URJ EID v MIDDLETON (Powell JA) 7 summarised and I do not intend, by not having gone into them more extensively, to indicate any disrespect for counsel's argument. Nor does the fact mat the Court did not feel the need to call upon the respondent, imply any denigration of plaintiff's counsel's argument. The problem with it was, however, that at the heart of the case which the plaintiff was seeking to get this Court to accept, there lay me difficulty that Dr Greenberg's opinion depended for its acceptance upon, in his own words, the plaintiff having "developed the symptoms within a month or thereabouts of" the accident. For the accident to have been the precipitating factor of the plaintiff's schizophrenic symptoms, proof of the fact involved in that premise was essential. Once the judge came to the conclusion that that fact was not proved, then the plaintiff could not succeed on the schizophrenia issue, notwithstanding a number of other matters in the evidence which would, had that essential fact been proved, have been very useful in his case. I therefore think that the appeal must be dismissed with costs. Powell JA I agree. Priestley JA: The appeal is therefore dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: A.J. 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