CORNEY v COLUMBUS OVERSEAS LINE and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA and ROLFE AJA 31 March 1995, 31 March 1995 [1995] NSWCA 98 EVIDENCE: Rejection by Trial Judge of evidence tendered on behalf of the appellant without explanation, and acceptance by Trial Judge of evidence subject to a condition inconsistent with that evidence Mahoney v Kruschich (Demolition) Pty Ltd (1985) 156 CLR 522 considered Meagher JA The court is in a position to give judgment now and I will ask Rolfe AJA to do so. Rolfe AJA The plaintiff/appellant suffered personal injuries in a motor vehicle accident, which occurred on 1 March 1989, in circumstances whereby the defendant/respondent stated at the hearing, before McDevitt DCJ, that it was negligent. The matter thus proceeded before his Honour to an assessment of damages. The appellant gave evidence that he suffered, after the accident, from headaches and neck and back pain. Although he received no medical treatment at the scene of the accident, shortly thereafter he attended at Burwood Medical Centre and was referred to an orthopaedic surgeon, Dr Bannister. Dr Bannister gave a number of reports which were tendered. He was not, as I understand it, required for cross-examination, but his Honour said, (appeal book 224), he did not regard any of Dr Bannister's reports as being reliable. The reason for his Honour's rejection of the reliability of Dr Bannister's reports is not disclosed and counsel has been unable to point us to any reason why those reports should not have been accepted, at least at face value. Accordingly, so it seems to me, his Honour excluded from consideration medical evidence favourable to the appellant and to which, in the absence of any attack upon them, he should have had regard. Dr Bannister prescribed various treatment for the appellant. His Honour recorded: "T accept that he was admitted to hospital for seven to eight days by Dr Bannister for supervised traction and physiotherapy." There was evidence before his Honour that this type of treatment may not have been totally appropriate. Nonetheless, it cannot be said, in my view, that it was treatment the appellant undertook other than "reasonably in seeking or accepting the treatment", so as to preclude any suggestion of novus actus interveniens: Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529. Indeed, his Honour must have accepted that it was reasonable because he allowed out-of-pocket expenses, including the amount paid to Dr Bannister and the hospital in which this treatment was carried out. It would be totally inconsistent to reject the necessity for this treatment and also to have allowed the out-of-pocket expenses in circumstances where, although the out-of-pocket expenses were agreed, there was no agreement that they were causally referable to the motor vehicle accident. 2 UNREPORTED JUDGMENTS The medical evidence for the appellant, putting it broadly, was that he had suffered a whiplash-type injury, which aggravated at least a pre-existing degenerative back. The medical evidence for the respondent was that the plaintiff was suffering from a condition of somatization. This was referred to in part by Dr Potter who, at Appeal Book page 70, was asked whether he believed the treatment, being the treatment prescribed by Dr Bannister, "... has reinforced in this plaintiff a perception that he has an injury and disabilities?" Dr Potter said he did. Dr Potter maintained that the treatment reinforced that perception and on the same page he repeated that the appellant "... has a perception of injury ongoing for which I can find no cause." At Appeal Book 71 Dr Potter said: "Q. Injury, ongoing for which you can find no cause?" A. Yes, absolutely. Now the question to help the court must be why might this man still feels those symptoms and the answers are threefold; one, there isn't any possible physical basis, two, he's exaggerating the claim, three, I believe there's ample evidence that there was treatment given not conventional, excessive and unreasonable if he'd been properly examined and if the investigation had been properly analysed it will be abundantly clear there wasn't a physical basis for his complaints." The evidence of Dr Mellick, who was also called on behalf of the respondent, made it abundantly clear that the plaintiff was suffering from a condition of somatization. He referred to the doctors being confronted "... with phenomenon of illness behaviour and somatization." (Appeal Book 92). He continued: "Now, this is an important category of concern to doctors, as it's an area which is not an expression of psychiatry, it's not psychiatric illness, and it's not an expression of neurological disorder either, or for that matter of medical disorder. It sits in the area of normal human propensity." Dr Mellick gave further evidence in support of these features, a reading of which, to my mind, shows a compelling view being put forward by the doctor. I just add, by way of example, that on page 95 Dr Mellick was asked: "Q. And when it reinforces it in the plaintiff's mind, the plaintiff actually and GENUINELY experiences the pain and believes he has a problem? A. Yes." I have underlined the word "genuinely" because in the appeal book the word generally" appears. Counsel before us agreed it should read "genuinely". At 96 Dr Mellick was asked: "Q. Can this illness behaviour symatisation be so effective as to make a man remove himself from the workforce for some four or five years as this plaintiff has? A. Yes." In my view, the word "symatisation" should obviously read "somatization" and I can understand the error in transcription, there being internal evidence in the transcript that it was taken by tape recording. The final question in cross-examination of Dr Mellick (appeal book 97) asked him whether the illness behaviour somatization, which he believed was present in the appellant, had reached the chronic stage "... having been present for some years" to which he replied "Yes.". At the foot of page 96 Dr Mellick made a passing reference to the question involving, or potentially involving some psychiatric element, which however, in no way, as I read the evidence, deflected from the answer Dr Mellick had given at 92, and which I have quoted, that somatization is not a psychiatric illness. URJ CORNEY v COLUMBUS OVERSEAS LINE and ANOR (Rolfe AJA) 3 When his Honour came to consider the evidence of Dr Potter and Dr Mellick he said: "T find that on the balance of probabilities the plaintiff did have degenerative changes in his neck prior to the accident which were nevertheless without symptoms. I accept that he was involved in a rear-end collision on 1 March, 1989 and that he suffered soft tissue injury which has now healed. I accept that he later felt the onset of pain and sought medical treatment initially from the Burwood Medical Centre and later from Dr Bannister who subjected the plaintiff to traction, stretching and suggested the use of a TENS machine which the plaintiff used. I accept that at present the plaintiff has no disabilities which are consistent with having been caused by trauma. I think it possible as suggested by Drs Potter and Mellick that these symptoms do exist in the plaintiffs mind and that they persist as a result of Dr Bannister's treatment. It is possible that he thinks that he has pain even though there is no cause for it. However, I accept that he is exaggerating and embellishing the severity of these symptoms. The viewing of the video (exhibit 1) leads me to doubt the sincerity of his complaints and I am not persuaded that he is incapacitated by his symptoms to the degree which he alleges. In the absence of psychiatric evidence I am not prepared to accept that the plaintiff is suffering discomfort in his neck because he thinks he has symptoms for which there are no causes. I am not persuaded that the plaintiff's ability to lead a normal life is significantly impaired by the injury he suffered in the accident in 1989." As I would understand it, his Honour accepted the evidence of Drs Potter and Mellick. The acceptance of their evidence must necessarily have led his Honour to the conclusion that the appellant was suffering from somatization and an acceptance of that must, equally inevitably in my view, have led his Honour to the conclusion that there was a medical issue, causally related to this accident, of the type eloquently described by Dr Mellick and indicated by Dr Potter. His Honour's reason for rejecting this cogent evidence was the absence of psychiatric evidence and he said that in the absence of such evidence he was not prepared to accept the appellant was suffering in the way in which he alleged. Unfortunately, he gave no reasons as to why he came to that conclusion. In consequence, his Honour rejected not only the evidence of Dr Bannister in a manner which, in my respectful view, was impermissible, but also the evidence of Drs Potter and Mellick, at least to the extent that he required it to be further supported by psychiatric evidence, which their evidence did not require. This means that his Honour really left the plaintiff's case on damages in an impermissible position having regard to the evidence he accepted. On behalf of the respondent, it has been submitted that there were a number of matters of credit which had to be determined by his Honour, having regard particularly to the ability of the appellant to work in the future and the extent to which he was suffering. I agree that these were issues before his Honour, but a threshold question as to which his Honour had to make a finding was what it was, if anything, from which the appellant was suffering. For the reasons I have sought to give I do not consider that his Honour made a finding based on the evidence before him. Therefore, he really precluded himself from determining the other questions, namely, assuming that causally related illness or condition, what consequences has it had? In the result of course, his Honour was led to the almost inevitable conclusion that the only amount he would award was the out-of-pocket expenses and interest thereon although, as I have suggested, there is an internal inconsistency in his reasoning in that regard. 4 UNREPORTED JUDGMENTS In my opinion the appeal must be allowed. Because of the way in which the matter has proceeded, it is impossible for this court to attempt to reassess the damages and the matter must go back for a new trial. I propose that the appeal be allowed and that the respondent pay the appellant's costs of the appeal. Meagher JA. I agree. His Honour, in my view, made two major mistakes. First, he dismissed the evidence of the plaintiff's doctors without explanation and, secondly, he accepted the evidence of the defendant's doctors but only subject to a condition, which was inconsistent with that evidence. The orders that the court will make are: (1) Appeal allowed. (2) Verdict and judgment in the District Court set aside. (3) In lieu thereof, order that there be a new trial limited to damages. (4) That the respondent pay the appellant's costs of the appeal. (5) The costs of the first trial to abide the result of the second trial. Counsel for the Appellant: BMJ Toomey QC/PJ Mooney Instructed by: Vandervords Counsel for the Respondent: PJ Doherty Instructed by: GM Meadows