GHINIS v PIZZARO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and PRIESTLEY JJA 4 December 1995, 4 December 1995 [1995] NSWCA 171 MOTOR VEHICLE ACCIDENT — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — FINDING OF FACT NOT SUPPORTED BY EVIDENCE MOTOR VEHICLE ACCIDENT — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — FINDING OF FACT NOT SUPPORTED BY EVIDENCE — NEW TRIAL ORDERED — appellant injured in motor vehicle accident — at trial adduces written medical report — report states appellant suffering from psychiatric illness — no psychiatric report tendered by respondent — in cross- examination appellant does not concede untruthfulness or inaccuracy — trial judge finds that there is no causal connection between psychiatric illness and accident — on appeal Held: on materials before trial judge only reasonable conclusion was that there was a causal connection between the psychiatric condition and accident — trial judge therefore in error — orders below set aside and new trial ordered. 5. Respondent to have a certificate under the Suitors' Fund Act if entitled. Priestley JA The appellant in this appeal was injured in a motor vehicle accident on 13 December 1990. The respondent admitted liability. At the trial before his Honour Judge McDevitt of the District Court, the appellant claimed to be suffering still from his accident injuries. In addition to the medical evidence concerning his physical state, there was also psychiatric evidence from Dr Keshava that he was suffering quite severely from post traumatic stress disorder. The only witness to give evidence at the trial was the appellant. Medical reports were tendered by both sides. There was also evidence, by way of expert report, from both sides as to economic loss. The medical practitioners were in conflict about the genuineness of the appellant's physical symptoms. Dr Matheson, for example, whose reports were tendered by the respondent, said, in his later report, that, upon examination of the appellant by him, there was a ridiculous performance of exaggeration of symptomatology. No psychiatric report was tendered by the respondent in answer to Dr Keshava's report. The appellant was asked in his evidence in chief whether what he had said to Dr Selby Brown, who was an orthopaedic specialist whose report was tendered in the appellant's case, and what he had said to Dr Keshava was correct. He said it was. In cross-examination he was asked about his property and income, and was asked whether he would tell an untruth for financial gain. He was then asked questions which could charitably be read as going to his truthfulness on those matters. When I use the qualification "charitably", I am referring to the fact that upon an overall reading of the cross-examination, it can be seen that it was intended to put the appellant's credit in issue. It was not done with the directness and specificity which is desirable in a case of this kind. The appellant in this part of the cross-examination did not concede untruthfulness or inaccuracy. The cross-examination then proceeded: 2 UNREPORTED JUDGMENTS "... You told his Honour that before this accident you did a lot of physical work? A. Yes sir. Q. Including lifting rolls of material? A. Yes sir. Q. But rolls of material were what? About six feet long? A. Not 6 feet long. Q. How long? A. Is double width is 3, I can't remember how long but it's very long rolls of the material. Q. What? 10 feet, 12 feet? A. Sorry, six feet tall, sorry, yes. Q. What? 3 feet round? A. It's not 3 feet round because the material is for the pants is heavy material, is very heavy material. Q. And you were able to bend down and pick that up off the floor? A. Yes, off the floor. Q. A hundred kilograms? A. 60 metres, I don't know, we don't weighing the material but 60 - Q. When you told his Honour it was a hundred kilograms you were guessing, you don't know what it weighed? A. I said hundred kilos or hundred kilograms, I don't know, but if you see the roll of the material I don't think you can lift it that. Q. And the truth is as you sit here today you don't know what they weighed? A Pardon? Q. As you sit here today talking about these rolls of material you don't know what they weighed? A. What do-you mean? Q. Well it's a simple question. You don't know what the weight of the roll of material was do you? A. To lot of weighing? HIS HONOUR: Q. You don't know how heavy it was do you? A. No sir. no. O'CONNOR: Q. When you walked in the witness box this morning after ten o'clock you walked very slowly? A. Yes sir. Q. And you limped? A Pardon? Q. You walked in with a limp? A. No, because that time, today, if I sit very slow here is I sit on the chair it's very hard to get up like we do before. Q. When you were walking into the witness box this morning, when you first went in there you walked slowly and with a limp? A. Yes. Q. And you had difficulty getting up the stairs? A. Because if I sit down - I like to tell you if I sit down, if I walking 10 to 20 metres we used to walk more good but if I sit down all this grab me on the back. Q. Do you tell his Honour that that's how you were when you have been like that since the accident? A. We been like? Q. You have been having this trouble ever since the accident? URJ GHINIS v PIZZARO (Priestley JA) 3 A. It's not like - after the accident or before? It's not all the time, I told you it's not all the time. Q. Sometimes have it sometimes you don't? A. Yes, if I stay inside it grab me down. Q. After the motor car accident you went to the Canterbury Hospital? A. Yes sir. Q. You told them what had happened to you? A. I told everything. Q. Told everything. You told them about all your symptoms and your aches and your pains? A. Yes sir. Q. And you told them where in your body these aches and pains were? A. We told them, we saw the place we got the pain. Q. You told them you had pain and stiffness over the right upper part of your low back? A. Yeah, after the accident yes. Q. That right? A. Yes sir. Q. And you had no trouble with your legs at that stage? A. Before? Q. After the accident when you went to Canterbury Hospital? A. Not that at that stage, not that time. Q. You see when you went to Canterbury Hospital you didn't tell them anything about neck pain did you? A. We tell, I don't remember if I tell yes or not but, the pain from my neck it's come after I don't know, one month. Q. One month? A. One week, one, complaint were made private doctor after one or two weeks, something like that. Q. You don't know? . Say one month, I tell the truth, I can't say yes one year or one day. . When you went to see Dr Bannister - . Yes sir. . - you told him what was wrong with you? . Yes sir. . You told him that you had an injury to your low back? . Yes sir. . And to your right loin? . Yes sir. . You didn't tell him anything about any trouble with your neck did you? . We told him after that. . After that? Yes. . SO it is somewhere between two weeks and one month - . Yes sir. . - after the accident that the neck first started to trouble you? . Yes sir. . It could have been a month? . I can't say exactly, I don't want to say something we don't - we don't remember. POPHN PR POH PAH PH PRPO POS 4 UNREPORTED JUDGMENTS (Mr O'Connor called for such notes as Dr Shakira Ahsanullah, the plaintiff's general practitioner ought to have produced in response to a subpoena. Discussion. Mr O'Connor referred his Honour to the argument in some medical reports about pre-existing degenerative changes. After taking instructions, Mr O'Connor advised that he did not wish to pursue the matter.) Q. You have continued to see Dr Ahsanullah? A. Yes sir. Q. And you have seen a Dr Matheson for the insurance company? A. Yes sir. Q. And you told Dr Matheson that you were also seeing a specialist in Macquarie Street. Who is that? A. Macquarie Street? Q. Yes. You told Dr Matheson in October of last year that you continued to see Dr Ahsanullah and another doctor in Macquarie Street but you couldn't remember the doctor's name. Do you remember the doctor's name now? A. The specialist I gave you, Dr Colbin. Q. I didn't understand that. HIS HONOUR: Q. The specialist I gave you is Dr Colbin, is that what you said? A. Yes. O'CONNOR: Q. Dr Colby - C-o-l-b-y? A. Selby, Colby - Q. Selby Brown? A. Yes. Q. He does not treat you though does he, you go to him when your solicitors send you to him? A. Yes, we take - I can't go to any doctor because we ask the insurance to pay the doctors, say we don't pay anything. If I been to the doctor say you have to pay all that before they treat you. That's why we never been anywhere. Actually we got some bills out with the payment." I cannot see, in this cross-examination, a word of direct challenge to the appellant's statement that he had been truthful when seeing Dr Keshava or of challenge to Dr Keshava's opinion. In addition to that evidence on the psychiatric matter, there was also before his Honour, in a report made in 1990 tendered by the respondent from Dr Saba, a statement that "a functional overlay was involved" in the appellant's continuing complaint. Later, in a report from Dr Slezak tendered by the respondent, dated October 1994, Dr Slezak commented that the appellant "had developed an atypical, chronic, lower cervical, lower lumbar, pain syndrome, accompanied by a severe depressive illness". In stating this opinion, Dr Slezak does not appear to have raised any doubt about the genuineness of the psychiatric illness. When the trial Judge came to give his reasons, he commented on the difficulties, which are very real, caused to a judge when conflicting medical opinions are tendered before him and no doctor is called as a witness. He found that the plaintiff had had degenerative changes to his neck and lumbar spine but he was not persuaded, in view of the differences between the medical opinions, on the balance of probabilities that the appellant was suffering any residual effects from the exacerbation of pre-existing degenerative changes which had been caused by the accident. He then went on to say that he could not see why he should prefer the opinions of Drs Selby Brown and Bannister to those of Drs URJ GHINIS v PIZZARO (Priestley JA) 5 Slezak, Matheson and Saba. This comment was directed to the physical, as distinct from the psychiatric, situation of the appellant. He next said: "Dr Keshava has on 14th November, 1994 diagnosed Post Traumatic Stress Disorder and Depression based on subjective complaints made to him by the plaintiff and has expressed the view that he will need ongoing psychiatric assistance. Again, this doctor was not called or cross-examined. The doctor makes mention of the break-up of the plaintiffs marriage and of tears at times, and the report again leaves me in the position of being unpersuaded on the probabilities that his psychiatric condition is casually connected to the accident or, if it is, to what extent this condition would impair his ability to lead a normal life." On the basis of the opinion he had thus formed, he held he should make no award for non economic loss. In the appellant's written submissions in the appeal, various reasons were suggested why the Judge's orders should be set aside. A striking thing about his Honour's conclusions is that the result of his findings eventually was that he awarded the appellant damages in the sum of the out of pocket expenses, which had been agreed, with no addition whatsoever. Such a result, of itself, causes a reader of the Judge's reasons, in light of the evidence, to have doubts about the supportability of the Judgment. Other matters raised by the appellant in the appellant's written submissions point to what seem to me to be real problems in the Judge's approach. Because, in my opinion, the result of the appeal must be the ordering of a new trial, it does not seem either necessary or desirable to examine all of the grounds of complaint raised by the appellant. It is sufficient, for the purposes of disposing of the appeal, to focus on the passage I have set out from his Honour's reasons. In it, he said he was not persuaded that the psychiatric condition of the appellant was causally connected to the accident. In my view, in light of the course of the hearing before him and the evidence that I have referred to relating to the psychiatric condition, and noticing also that no psychiatric evidence was put before the Court on behalf of the respondent, his Honour was in error in his statement that he was left in the position of being unpersuaded of the connection between the psychiatric condition and the accident. On the materials as they were left before him, I think the only reasonable conclusion for his Honour to arrive at on this issue was that there was a causal connection between the psychiatric condition, accepted by Drs Slezak and Saba in addition to Dr Keshava as being in existence, and the motor vehicle accident. I should make it clear that in saying I feel no need to examine the other grounds of appeal, I have in mind that none of those, if upheld, would lead to any other result than a new trial. A new trial of this cause of action is inevitable if the Judge's orders are set aside because the questions of damage, even on the footing of the psychiatric condition having been caused by the motor vehicle accident, are inextricably bound up with an assessment of the degree, if any, of exaggeration of his physical symptoms by the appellant and the genuineness also of the symptoms which lead to the psychiatric assessment of his condition. There is a wide range of findings available to a trial judge, ranging between major scepticism, as it were, of all aspects of the plaintiff's medical case, both physical and psychiatric, to overall acceptance of the case, with many possible combinations of factual findings in between when the interplay between the physical condition and the psychiatric condition falls to be considered. 6 UNREPORTED JUDGMENTS The parties also were agreed that if the Court took the view that the trial Judge's orders had to be set aside, then there would have to be a new trial. As I have already indicated, there seems to me to be an error, for the reasons already outlined, in the particular portion of his Honour's reasons which I have 5 above set out, which goes to the root of his Honour's decision, and which makes it necessary for his judgment and orders to be set aside. In my opinion that should be done, and a new trial ordered. The costs of the appeal should be borne by the respondent. As to the costs of the first trial, in view of information supplied to us from the 10 Bar table, it appears mat, if the judgment below is set aside, then this Court should order that the costs of the first trial should abide the costs of the second trial, that particular order being the subject of agreement between the parties here today, once the position is reached that the judgment is to be set aside. I, therefore, propose that the orders I have indicated should be 15 made. Mahoney JA I agree. Orders below set aside. New trial ordered. Costs of the appeal to be borne by the respondent. Costs of the first trial to abide the costs of the second trial. Respondent to have a certificate under the Suitor's Fund Act if entitled. I order that Mr McIlwaine can have a certificate under the Suitors' Fund Act, 25 if otherwise entitled. COUNSEL: vaRONS Appellant: P SEMMLER QC/T BOYD 30 Respondent: R MCILWAINE SOLICITORS: Appellant: CAMERON GILLINGHAM BOYD 35 Respondent: FERGUSON HOLZ