KARAM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and COLE JJA 22 March 1995, 22 March 1995 [1995] NSWCA 229 NEGLIGENCE — CAUSATION — DAMAGES — plaintiff claimed damages for car accident on 21 April 1987 — plaintiff alleged he was suffering many symptoms as a result of accident — plaintiff had also suffered accident in 1980 — defendant admitted breach of duty but argued that plaintiff did not suffer any injury as a result of second accident — trial judge made findings adverse to plaintiff's credibility and found for the defendant. Held: although there was uncontradicted evidence before the trial judge of injury having been sustained by the plaintiff, it was open to the trial judge, considering the whole of the evidence before him, to conclude that such injury was not caused by the breach of duty occasioned by the accident on 27 April 1987. Gleeson CJ In this matter I will ask Mr Justice Priestley to give the first judgment. Priestley JA This is a plaintiffs appeal from a judgment of his Honour Judge Kirkham of the District Court, dismissing the plaintiff's claim for damages in a car accident. The accident happened on 21 April 1987 when the plaintiff was twenty-three. The plaintiff was driving his father's car which was run into from behind. The Government Insurance Office (as it was then known) as the defendant at the hearing, admitted the accident was due to a breach of a duty of care by the driver of the vehicle which hit the plaintiff's car. One contest at the trial was whether the accident had caused any damage to the plaintiff. The trial judge said the plaintiff had not established any such damage. The plaintiff's case was that, as a result of the accident, he came to suffer a great many symptoms. The trial judge collected these in a paragraph in his reasons for judgment as follows: "He said that he developed numbness in his arms - that was from the time of the accident itself - pain to both shoulders, which was now unbearable and continuous, pain in his legs, which came on gradually, numbness in his feet. He suffers from general weakness. He hears severe noises inside his head, he has a fear of vehicles and, quite often, he drives through red lights, for some reason which was not made clear. He suffered from anxiety, forgetfulness, nervousness. He sweats, he shakes, he has pain in his neck, back, shoulders, arms and legs.... He said he felt remote from society and he did not go out. He said he could not go to church because he had to stand and talk to people. He was denied the pleasure of picking up his child because of the physical problems that I have related." The plaintiff's case that he was suffering the symptoms that he described and that they were a result of the accident depended on his own evidence and that of a number of medical practitioners, reports from whom were tendered before the trial judge. 2 UNREPORTED JUDGMENTS However, the plaintiffs case, upon analysis, depended entirely on his own account of the accident having happened in the way that it did, and having caused some physical impact upon him at the time of the accident of a kind making it plausible that the symptoms of which he later gave evidence were brought on by that accident. The medical evidence upon which he relied depended upon the medical practitioners accepting his account of the accident and the symptoms that he said he developed, either immediately after the accident or, in some instances, soon after the accident and in other instances at some time after the accident. The principal medical witness upon whom he relied was Dr Younan. Dr 'Younan's opinion concerning the connection between his symptomatology and the accident depended upon the doctor's view that he had suffered brain damage in the accident and that there was a certain degree of functional overlay operative in the plaintiff, which had been triggered by the accident, this triggering having come to bear upon a person who was already pre-disposed towards psychological problems, partly because of an earlier accident that he had suffered. Putting the reason for the trial judge's conclusion very briefly, it was that he did not accept the plaintiff's evidence of having suffered a head injury, or indeed any injury in the accident. He made findings adverse to the plaintiff's credibility and ended by saying that the plaintiff had been unable, on the probabilities, to establish that, arising out of the accident, he suffered any damage, the nature of which might reflect itself in an award of general damages or indeed for any economic loss. In the course of his detailed examination of all the medical evidence the trial judge had made the finding that I have already mentioned, that there had been no brain damage and that he was quite unable to find that there was a head injury or a head blow suffered in the accident. In the appeal plaintiff's counsel began, very properly, by acknowledging that he could not ask this court to disturb any of the trial judge's factual findings based on the credibility of the plaintiff or the fact finding concerning head injury. The argument proceeded, however, that accepting the trial judge's findings there were two areas of medical evidence which he had overlooked or disregarded which showed conclusively that the plaintiff had suffered a neck injury and either the commencement or the exacerbation of a psychological condition which would provide a basis for an award of damages. Before dealing directly with the submissions in support of this contention I should mention that in 1980 the plaintiff had suffered an accident which left him in hospital for some time and was the subject of proceedings which were eventually compromised in 1984. In the period between the first accident and the settlement of the case which arose from it the plaintiff had ceased work and sought medical advice and treatment from Dr Younan, beginning apparently in August 1983. From that date until towards the end of 1984 when the first case was settled, he saw Dr Younan approximately twelve times and many of the symptoms recorded by Dr Younan bear some resemblance to those of which he complained at the trial before Judge Kirkham. When the claim was settled the plaintiff went to Lebanon where he stayed for some time and was married, coming back to Australia in 1986, where he worked for some months casually until early 1987, and then was out of work at the time of the accident in April 1987. In the period between the settlement of his earlier case and his second accident there is no record of his having visited Dr Younan. UWRRAM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestley JAB Following the accident he was examined by Dr Kanawati on 11 May and went back to Dr Younan on 9 July 1987. From 9 July 1987 until 13 July 1989 he visited Dr Younan for consultation and treatment approximately twenty-five times, complaining of symptoms, again similar to those of which he had complained up till November 1984, although I have the impression that they were more numerous. A very strange feature of his visits to Dr Younan up till July 1989 is that in none of those did he mention the second accident which he had suffered in April 1987. This feature of his evidence, naturally enough, became the focus of some attention before Judge Kirkham. It had previously caused Dr Younan some surprise. When he finally found out about the accident he asked the plaintiff why he did not mention it before. The answer that the plaintiff gave him was that he considered the accident was minor and he was not willing to proceed with any claim concerning it. I notice that the proceedings in the District Court are shown as having been commenced in 1990, so it would appear that for a considerable time at any rate the plaintiff himself did not consider that the accident was something which had caused him either any damage or sufficient damage to warrant the bringing of court proceedings. Such an attitude is in stark contrast to the way in which his case was presented. The submission on behalf of the plaintiff here today that there was uncontradicted evidence before the trial judge of a neck injury is correct to some extent. It is correct to the extent that there were before the trial judge a number of reports saying, in one way or another, that the doctor making the report had taken from the plaintiff a history of having injured his neck at the time of the accident in April 1987, with some symptoms of neck injury being present at the time of the doctor's examination. The fact that there was evidence of a neck injury falls short of providing evidence of a neck injury caused by the accident. In the circumstances in which this case developed at trial, any conclusion that symptoms of neck injury reported by doctors were symptoms caused by the accident depended on acceptance of the plaintiff and his evidence of what happened to him at the time of the accident. As I have already said the trial judge reflected on the plaintiff's credibility. In the appeal counsel for the plaintiff carefully took us through the passages in which the judge made observations about the plaintiff's credibility and sought to submit that they were not really very far reaching findings about credibility, and that they were not sufficient to prevent this court acting on the medical evidence in support of the plaintiffs claim concerning his neck, together with some acceptance by this court because, so the submission ran, the plaintiffs credibility had not been completely destroyed, on what the plaintiff said about having hurt his neck in the car accident. However, it seems to me that although the trial judge expressed himself temperately in the remarks he made about the plaintiff's credibility, when the whole of his judgment is read, it becomes quite clear that he did not accept the plaintiff's account of having been hurt in the accident of April 1987. Apart from matters I have already mentioned, the matters of credibility upon which the judge was entitled to draw his conclusions, there were some specific matters which formed the basis for the judge reaching the conclusion that he did. One was the fact that I have already mentioned that the plaintiff did not consider the matter of the accident serious enough to mention it to Dr Younan during the rather extraordinary number of visits that he paid to that doctor. 4 UNREPORTED JUDGMENTS A second feature which the trial judge mentioned was that there was put in evidence by the defendant at the trial, if I read the exhibit numbers correctly, a report from Dr Chhabra to Dr Kanawati dated 29 October 1987, in which he reported upon his examination of the plaintiff on that day. The plaintiff was making various complaints to him but none of them resembled the complaints which the plaintiff at the trial said he was suffering from at that time. The report may be explicable on the footing that Dr Chhabra, whose letterhead shows him to be a surgeon of a kind I cannot work out from the report because the word before "surgeon" is obliterated, may have simply been seeing him about a complaint concerning his eyesight. The report dealt with the testing of his eyes, but even if that is the explanation, Dr Chhabra reported that the plaintiff had given him a history of a head injury in 1980. Had the plaintiff considered that the 1987 accident had any relevance to problems relating to his eyes or his head one would assume that he would have told the doctor about it. Putting it more positively, the usual practice of doctors is to ask such questions: "Have you had any head injuries?", and I would infer that some such question was addressed by Dr Chhabra to the plaintiff, who replied: "Yes, I had a head injury in 1980" but did not see fit to mention any head injury in 1987. Another matter that was before the trial judge was a film of the plaintiff, apparently a short one, and apparently taken without the plaintiff's knowledge, which showed the plaintiff moving quickly along the street, without any restrictions whatsoever. The judge reported that the film appeared to him to show the plaintiff on one occasion looking over his left shoulder in a movement which was quite free-flowing, and that at the date of the film which was 7 July 1992, the plaintiff had no restrictions of a physical nature whatsoever. The trial judge drew the contrast between the appearance given in the film and the constellation, as he termed it, of symptoms which the plaintiff complained of in the witness box. These matters all seem to me to go to providing the trial judge with a reasonable foundation for concluding that the plaintiffs credibility, so far as the circumstances of the accident of April 1987 were concerned, was not something he was prepared to accept or rely on. Indeed, the plaintiff himself had said in evidence before the judge that at the time he had not considered the accident a significant one. For the plaintiff today the argument has tended to be, well, perhaps he did not consider it particularly significant at the time and that is why he did not mention it to people so much, but the medical evidence establishes that he did have ongoing symptoms and the accident must have been worse from his point of view than he himself understood. I do not think that that submission, or any submission along those lines, carries a great deal of weight. The contrast between what the plaintiff did and said about the accident and what he later said was the effect of the accident upon him, seems to me to have been too great to be accounted for in that fashion. In any event, the question for this court is not so much what estimate this court forms of the plaintiff's credibility or the likelihood of matters occurring or not occurring which are connected with the plaintiff's credibility. The question is whether the trial judge can be shown to have so misused his advantage of being present at the trial and seeing the plaintiff give his evidence, that this court should say he was obviously wrong in his assessment of the plaintiff. UWRRAM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Gleeson CJB The effort to do that was along the lines I have already mentioned, the reliance upon uncontradicted medical evidence. For the reason also that I have given, that reliance does not get around the basic difficulty the plaintiff has in the appeal of his credibility concerning the actual way in which the accident happened itself not being accepted by the trial judge. So far what I have said all began by dealing with the argument concerning what was said to be the plaintiff's undoubted neck injury. In my opinion if there was a neck injury, and if the evidence goes so far as to show there was a neck injury, the evidence certainly does not show that that neck injury was caused by the accident of April 1987. It could only show that if the plaintiff was accepted in regard to the events of the accident. Apart from the fact of the accident itself, the judge did not accept his account. The position concerning the psychological overlay is in a similar case. Again the submission was that there was undoubted evidence on all sides that by the time of the trial the plaintiff was suffering from a psychological condition which was affecting him very adversely. I think the evidence does, to some extent, support that submission, but included in the medical evidence relied on for that conclusion was a considerable amount of reporting by some doctors to the effect that the plaintiff was exaggerating, and, to some extent, malingering. Counsel for the plaintiff said such reactions may sometimes be part of the psychological condition itself, which is called psychological overlay. That may be so, but again it makes a further problem for acceptance of the plaintiff's credibility as to the cause of his problem. The trial judge's conclusion was that if he had a psychiatric or psychological condition he had not established, on the balance of probabilities, that it arose from the accident, but it was more probable than not that if it existed it related to the earlier accident in 1980. That seems to me to be a conclusion which was open to him and one closely bound up with his view of the credibility of the plaintiff. As such it seems to me to be a conclusion which this court should not interfere with. There is only one other matter I will mention here, which I should have mentioned earlier. The objective materials available for a time relatively close to the accident of April 1987 included some items I have not yet dealt with. The plaintiff visited Dr Kanawati in May 1987. Shortly after that and, presumably, as a result of referrals by Dr Kanawati, there were two x-rays done of the neck and the spine and a CT scan of the plaintiffs brain. The only medical evidence concerning those examinations was that of Dr Innes-Brown who reported that there was nothing in any of those examinations of an abnormal kind. This I think would be another matter the trial judge took into account in reaching his factual conclusion. Thus we reach the unusual situation, but one well grounded in the judge's findings in this case, that although there was admitted breach of duty by the defendant, the plaintiff failed, through inability to prove damage flowing from the breach of duty. This situation was summarised in the last three paragraphs of the trial judge's reasons. For the reasons I have already given my opinion is that he would be entitled to reach the conclusions that he expressed in those paragraphs and this court should not interfere with his conclusions in this appeal. In my opinion, therefore, the appeal should be dismissed with costs. Gleeson CJ. I agree. 6 UNREPORTED JUDGMENTS Cole JA I also agree. Gleeson CJ: The order of the court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: RW CAMERON / WJ CARNEY Instructed by: MICHAEL CHAHOUD, BELMORE Counsel for the Respondent: G LAUGHTON Instructed by: GM MEADOWS, GOVERNMENT INSURANCE OFFICE