PHILLIPS vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 8 August 1995, 8 August 1995 [1995] NSWCA 368 PERSONAL INJURIES — CONFLICTING MEDICAL EVIDENCE — PLAINTIFF'S CREDIBILITY PERSONAL INJURIES — CONFLICTING MEDICAL EVIDENCE — TRIAL JUDGE SHOULD MAKE FINDING OF PLAINTIFF'S CREDIBILITY — NEW TRIAL ORDERED — plaintiff injured in car accident — commences claim for damages — at the trial conflicting medical evidence concerning the extent of the plaintiff's injuries — trial judge says although plaintiff is not an impressive witness, he will not make finding of plaintiffs credibility — plaintiff awarded damages under various heads. Held: new trial ordered: in the circumstances of the present case, the conflict in the medical evidence could only be resolved by the trial judge reaching and stating conclusions as to the acceptability of the plaintiffs evidence — no adequate reasons given by trial judge for non-acceptance of some of the medical evidence — also, it was necessary before the trial judge made a finding of malingering, to consider the recognised distinction between deliberate malingering and "functional overlay" ORDERS 1. Judgment below set aside. 2. New trial ordered. 3. Appellant to have the costs of the appeal. 4. New trial limited to the question of damages. Prieslty JA This appeal presents difficulties which to my mind make it necessary for the court to order a new trial. Because that is the conclusion I will be arriving at I can state the difficulties without going into the detail of the evidence. The appellant was injured in a car accident on 20 August 1984 when he was twenty-three. He commenced his claim for damages in the District Court in 1985. His case was heard by his Honour Judge Garling on 17 February this year. The respondent admitted liability and alleged contributory negligence, an allegation which the trial judge rejected. The principal issue was, therefore, the amount of the appellant's damages. The appellant gave evidence, as did his wife, his mother, a previous co-worker and a clinical neuropsychologist. A number of hospital and medical reports were tendered in his case. The respondent called no witnesses but tendered a number of medical reports. The appellant's claim, stated briefly, was that the accident had made him unfit for work. The evidence called in his case, oral and documentary, supported that claim. The respondent's case was that the appellant was deliberately exaggerating his injuries and had recovered from the effects of the accident long before the trial. He had received workers compensation until 25 October 1988 but not afterwards. 2 UNREPORTED JUDGMENTS The trial judge dealt with the evidence of the appellant, his wife and his mother in a somewhat unusual way. He said: "The plaintiff was not an impressive witness but I do not need to decide one way or the other as to whether I should accept or reject his evidence. The plaintiff's mother and wife gave evidence and I am sure they did their best. The plaintiff it seems has decided he was severely injured. He has decided he can do practically nothing." Both before this point in his reasons and immediately afterwards the trial judge discussed the medical evidence. It seems to me, despite a submission to the contrary from counsel for the respondent, fairly clear from the way the trial judge stated his reasons that he decided the issues in the case upon a reading of the written medical evidence. The trial judge was not impressed by such of that evidence as the plaintiff relied on. He summarised that of the early treating doctors as being to the effect that the plaintiff was not really trying. He said he could not accept the opinion of the psychiatrist written in 1987 because of its age and because it was based on one examination only. He would not rely on the report of Dr Deveridge made in July 1989 because he had a different view to the other doctors. He noted without comment what other doctors relied on by the appellant had said. He noted the large gap between Dr Deveridge's 1989 report and the next time the appellant saw a doctor in March 1993. He then discussed the medical evidence relied on by the respondent. One of the doctor's reports said the appellant's symptoms were grossly functional. Another, that he was malingering. Another doctor thought he was exaggerating his symptoms. He mentioned another doctor who had seen the appellant on behalf of the respondent in January 1986 and October 1990, that doctor's reports of his examination on those visits not being tendered. He noted that another doctor's report revealed that the reports not tendered which that other doctor had seen said that the appellant was not fit for heavy duties. He did not make any further comment about this evidence. He then concluded as follows: "T am satisfied that by the end of 1989 at the latest the plaintiff was greatly exaggerating his condition. I accept that the plaintiff suffered pain and disability for a number of years but he now has no problems as a result of his accident. If he has any problems now and any problems since 1989, then they come from something else which is hard to detect." The trial judge then proceeded to state his assessment of the figures to be awarded under the various heads of damage. For general damages he awarded $30,000. The next figure was for out-of-pockets $19,689, the next for wages lost to October 1988 $63,186 and then a Griffith v Kirkemeyer component for the first six months after the accident of $3,640. The problems which I mentioned earlier which led me to think a new trial must be ordered arise from the following considerations. The first is the judge's not having made any finding about the appellant's credibility. The second is his comment that the appellant's early treating doctors were, in his interpretation, saying that the appellant was not really trying. I could not see any such opinion in the reports of those doctors. The third is the non-acceptance of some of the medical evidence without adequate reasons being given. This criticism is related to the withholding of any findings about the appellant's credibility. Had the judge made findings about credibility then it would have been much easier for him to choose which line of opinion he would accept from the broadly speaking two lines of opinion in the URULLIPS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Prieslt JA) medical evidence, and then to discard, without any further reason, the evidence of the particular line of opinion which he did not accept once he had come to a conclusion concerning the plaintiff's credibility. The fourth difficulty is that the trial judge's finding, which I earlier read, amounts to a finding of malingering. I say this causes a difficulty for two reasons which operate together. One is I find it hard to see how the judge could make such a finding without having formed a view of the appellant's credibility and, next, the judge made that finding without having referred to the recognised distinction, accepted in argument here today, between, on the one hand deliberate malingering and on the other hand exaggeration to a greater or lesser extent, the consequence of what is commonly referred to as functional overlay. Quite different consequences for an assessment of damages flow from a judge's finding, one way or the other, that symptoms being manifested by a plaintiff are due to deliberate malingering or, in contrast, some degree of functional overlay. Counsel for the respondent sought to avoid the consequences of the difficulties that I have outlined by first, very properly, acknowledging that, in a case of this kind where the medical evidence supported opposing conclusions, it was wrong for the trial judge to have said that he did not need to decide one way or the other whether he should accept or reject the appellant's evidence but by then proceeding to argue that, on a fair reading of his Honour's reasons, although he had said he was not going to decide one way or the other concerning the acceptability of the appellant's evidence, he nevertheless did so; counsel pointed to a number of aspects of the judge's reasons which he submitted showed that, in reality, he had not accepted the appellant. I am not sure even if this submission were correct that it would cure the problem caused by the judge's observation in the circumstances of this case but, in any event, I do not read the judge's reasons in the way counsel has submitted the court should read them. As I indicated earlier it seems reasonably clear, in my opinion, that what his Honour did or set out to do, was to leave on one side what, perhaps he regarded as the unpleasant task of assessing the plaintiffs credibility and set out to decide the case simply on his analysis of the medical evidence. This would have been an acceptable procedure if the medical evidence were either all one way or one view of the medical evidence was, more or less demonstrably, the correct view but, in the circumstances of the present case where there is no doubt that the appellant's case was supported by the written evidence which he sought to rely on, this procedure is not an acceptable one. Counsel for the respondent also made submissions to the court which, in essence, stressed the strong factual support which it was said the respondent's case had in all the materials before the judge. That submission, however, does not assist the respondent in resisting a new trial. The situation can, in the end, be simply described as one in which the appellant's case and the respondent's case were in collision so far as the medical evidence was concerned. That collision had to be resolved by the judge in reaching his conclusion and, in the circumstances of the case, it could only properly be resolved in light of the judge's stated views as to the acceptability of the appellant's evidence. I would add here that, in addition to the judge's observation that he would not decide about the appellant's acceptability, he said of the appellant's mother and wife and the evidence that they gave that he was sure they did their best. Their evidence supported that of the appellant. Obviously what the judge said was not an acceptance of their evidence but, equally obviously, it was not a rejection of it. 4 UNREPORTED JUDGMENTS The result is, therefore, that although it may be that the judge arrived at a supportable result in orders that he made, the method by which he arrived at that judgment cannot be supported. This court is not in a position to go ahead and reach its own judgment on what the proper assessment of damages should be. An essential element in such an assessment is information concerning the acceptability, or otherwise, of the appellant's evidence. That is lacking here and, in the absence of his having made appropriate findings about it at the trial, in my opinion the reasons of the trial judge cannot be supported, and cannot be accepted in this court as supporting the orders that he made. The consequence is that in my opinion a new trial should be ordered and the judgment below, therefore, set aside. The appellant should have the costs of the appeal. As to the disposition of the new trial I have already mentioned that the accident in this case occurred in 1984 and the trial took place in February of this year. If it is at all possible for the District Court, in dealing with its very busy list, to give this case priority then I would, with due respect to the District Court, observe that it would seem to be a case deserving of whatever priority the District Court can give to a new trial. Cole JA I agree with the reasons just delivered and the orders proposed. Priestley JA: The court's orders are: Judgment below set aside; new trial ordered; appellant to have the costs of the appeal; new trial to be limited to the question of the damages to be awarded to the appellant. 1. Judgment below set aside. 2. New trial ordered. 3. Appellant to have the costs of the appeal. 4. New trial limited to the question of damages. Counsel for the Appellant: AF PUCKERIDGE QC/P FORMOSA Counsel fort the Respondent: J MATER Solicitors for the Appellant: NAPIER, KEEN AND GILCHRIST Solicitors for the Respondent: GM MEADOWS, GIO LEGAL SECTION