KIRKWOOD vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P, PRIESTLEY JA and POWELL JA 29 September 1994, 23 August 1995 [1995] NSWCA 244 APPEAL — review of facts — credibility findings — whether injured motorist suffered brain damage — Master enters judgment for $79,35408 for total damages — appeal against alleged inadequacy of judgment — Master concludes that proof of brain damage depends upon the genuineness of the subjective complaints of the motorist — rejects claims as unproved — on appeal — held: (1) Where findings as to disabilities depend upon acceptance or rejection of a party's evidence, an appellate court may only disturb such a finding in circumstances where it is inconsistent with facts incontrovertibly established by the evidence or otherwise glaringly improbable. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; (2) In determining important factual disputes, a judicial officer has a duty to refer, in the reasons given, to critical evidence relevant to the resolution of such disputes. Mifsud vy Campbell (1990) 21 NSWLR 725 (CA) applied; (3) Once the appellate court is authorised to intervene, it must determine factual disputes for itself and give its own reasons for doing so. Warren v Coombes (1979) 142 CLR 531 applied; (4) (per Kirby P; Priestley JA concurring; Powell JA dissenting): The failure of the Master to refer to an MRI scan report showing evidence of brain injury attributed by medical witnesses to the accident indicated objective evidence which, not being distinguished or explained by the Master, authorised the setting aside of his award of damages; (4) As the Court of Appeal could not reassess, the matter should be returned for redetermination of the damages by a retrial. DAMAGES — brain injury — conflicting evidence — credibility evidence — Master disbelieves relevant testimony of plaintiff — awards damages without provision for brain damage — Master fails to refer to MRI scan of plaintiff's brain showing signs consistent with brain damage — held: (Kirby P; Priestley JA concurring; Powell JA dissenting): Having regard to the importance of the resolution of the item of brain damage to the quantification of the plaintiff's damages, the objective evidence of the MRI scan, unexplained and not referred to by the Master, constituted objective testimony authorising the Court of Appeal to set aside the judgment and to return the quantification of the plaintiff's damages at retrial. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied. Kirby P. Before the Court is an appeal from the orders made, and judgment entered, by Master McLaughlin in the Common Law Division of the Supreme Court on 10 December 1993. Before the Master, the appellant claimed damages from the respondent (as the entity liable to pay any such damages) in respect of a motor vehicle accident. A substantial part of the appellant's case was that he had suffered brain damage as a result of the accident and that such brain damage, amongst other consequences, had forced him to cease remunerative employment. The Master did not accept the appellant's claim that he had suffered brain damage. It is essentially against that finding (and the orders consequential upon it) that the appellant now appeals to this Court. The Master based his conclusion 2 UNREPORTED JUDGMENTS solely,it would appear, upon his assessment of the appellant as an unreliable witness. The difficulty of overturning such a decision, consistently with the repeated instruction of the High Court of Australia, is obvious. See, e.g., Abalos v Australian Postal Commission (1990) 171 CLR 167 , 178f. Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 , 479. But the appellant submitted that there was incontrovertible evidence that some brain damage had occurred. Proof of this fact, allegedly overlooked by the Master, showed that the Master had not properly used his advantage as the judicial officer conducting the trial. It authorised the intervention of the Court of Appeal. This was the sole point of substance argued in the appeal. It presents a single issue. But a difficult one. The driver of a motor vehicle is injured in a head on collision At about 6.30 pm on | May 1986 Mr Leslie Kirkwood (the appellant) was driving his motor vehicle in a northerly direction on the Hume Highway, approximately one and a half kilometres north of Jerrawa Creek Bridge which, in turn, is north of Yass. Yass is a township some three to four hours driving distance southwest of Sydney. The relevant portion of road consists of three lanes. Two lanes carry traffic in the northerly direction. The other lane carries traffic in a southerly direction. The appellant was travelling in a northerly direction in the 'overtaking' lane. The 'overtaking' lane is the lane closer to the centre of the roadway. It was thus adjacent to the lane of oncoming, south bound, traffic. At the moment at which the accident happened, the appellant was passing another vehicle, a semi-trailer truck, travelling in the same northerly direction in the outermost lane. The accident occurred when another vehicle, also a semi-trailer truck, travelling in the southerly direction moved onto the incorrect side of the road and into the lane in which the appellant was travelling. That vehicle collided with the appellant's motor vehicle. As a result of that collision, the appellant sustained injuries to his head, back, right arm and shoulder. At the time of the accident the appellant, who was employed as a commission sales agent, was returning home from his business engagements. He was found to have had a blood alcohol concentration of 0.06, although he was not charged with any offence in respect of that reading or his driving. If the oncoming semi trailer moved onto the incorrect side of the road, challenging the appellant's vehicle overtaking another semi-trailer, there would not be much (if anything) that the appellant could do, even if completely sober, to avoid an impact such as occurred. The appellant was conveyed from the accident scene by ambulance to the Yass District Hospital. He remained there for approximately three hours before being conveyed by ambulance to the Royal Canberra Hospital. The evidence is uncertain as to whether the appellant lost consciousness in the collision or shortly thereafter. He remained in the Royal Canberra Hospital for five days. He was then conveyed by ambulance to the St George Hospital in Sydney. After nine days in that hospital and 'against the wishes' of the medical staff at the hospital, the appellant discharged himself and returned home. The back, right arm and shoulder injuries sustained by the appellant in the collision were injuries typical of those sustained in a high speed motor vehicle accident. As there is no substantive challenge to the damages assessed in respect of those injuries, standing on their own, it is not necessary to detail those injuries any further. WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirb$ P) The most serious injuries claimed to have been sustained by the appellant concern various head injuries. It was argued that he suffered a loss of consciousness, traumatic bone defects to the skull, deep scalp lacerations and a 'periorbital' haematoma. Most seriously, and now the subject of this appeal, it was claimed that the appellant suffered brain damage. At the time of the accident the appellant was 36 years old. He was employed Young & Bracey Pty Ltd as a commission sales agent in the field of 'home improvements'. Prior to such employment he had been employed by another company as a commission sales agent in the same field. Between 1978 and 1983 he had his own business involving similar work. As a result of economic problems, his own business had failed. The appellant had then sold his home to pay the business" debts. While it is not entirely certain in the evidence, the appellant appears to have commenced work with Young & Bracey Pty Ltd in early 1985. The evidence indicates that the appellant was quite successful as a commission agent. Indeed, in the ten months prior to the accident, the appellant had received gross earnings of $62,782. Prior to commencing work in the field of home improvements, the appellant had qualified as a printer. He had worked in Australia and in South Africa in that occupation. Following the accident, the appellant returned to his employment. The time of that return is not exactly clear. His first completed sales contract following the accident and his return to work is recorded as 31 May 1986. Upon that basis, the appellant resumed work some four weeks after the accident. The appellant continued to work in an intermittent fashion until he finally ceased employment altogether in mid 1990. The appellant claimed that his cessation of remunerative work was the result of the injuries sustained in the accident and _ their consequences. Leaving aside claims concerning pain and other more obvious physical injuries, the appellant claimed chiefly that he suffered from severe depression, difficulty in concentration and problems in making effective communication. He also claimed to suffer from intense irritability, aggressiveness and bad temper. All of these disabilities he attributed to the injuries suffered in the accident, particularly brain damage. The findings of the Master — negligence and injuries but not brain damage The Master found that the driver of the oncoming semi-trailer had been negligent in allowing his vehicle to move onto the incorrect side of the road. He rejected the respondent's claim that the appellant had exhibited contributory negligence. He assessed damages payable to the appellant at $79,354.08 and entered judgment in that sum. That judgment comprised $10,554.08 for out of pocket expenses; $5,000 for past loss of earnings; $3,000 for interest on past loss of earnings; $800 for a Griffiths v Kerkemeyer component, and $60,000 for general damages. The Master did not award any damages for any brain damage related loss, including, most substantially, any damages for future economic loss or loss of earning capacity. He did not believe that the appellant had sustained brain damage. He based this conclusion upon his adverse assessment of the appellant's credibility. Nor was the Master prepared to accept expert evidence based upon symptomatic analysis where the expert had relied upon the appellant for the history of such symptoms. The Master considered the voluminous medical evidence. It included reports and testimony of Drs Connelley, Burke, Teychenn, Koller, Smith, Somerville and Francis-Jones and Miss Tesoriero. The Master found that, notwithstanding that it was arguable that the psychometric testing of the appellant by Miss Tesoriero 4 UNREPORTED JUDGMENTS indicated to the contrary, the medical evidence did 'not disclose any cognitive impairment.' Significantly, the Master did not refer to what was the most objective of the tests performed upon the appellant. This was a magnetic resonance imaging scan (MRI). In summary, the Master stated: The allegation of brain damage depends, ultimately, not upon any facts which are susceptible of objective proof, but upon the subjective complaints of the plaintiff and upon the opinions of medical experts based upon the genuineness of those subjective complaints. I am not satisfied that the existence of brain damage has been established.""Turning to the appellant's alleged loss of earning capacity, the Master found that the appellant had not established 'that either the actual earnings or the earning capacity of the plaintiff suffered any diminution after the accident'. The Master noted that, compared with the three months immediately prior to the accident, the documentary evidence of Young & Bracey Pty Ltd indicated that, regardless of the nature of the injuries sustained by the appellant as a result of the motor vehicle accident, the appellant did not suffer any actual economic loss. Indeed, from Exhibits 16, 18 and 19, the Master concluded that, while the appellant had averaged about 1.3 completed contracts in the three month period immediately prior to the accident, in the period 31 May 1986 to 13 December 1986, that is, the period in which he first returned to work, he had averaged about 1.1 completed contracts per week. In the period 12 August 1989 to 19 December 1989, a later period for which evidence was available, the appellant averaged two completed contracts per week. The Master also examined the appellant's actual earnings prior to the accident and thereafter. In the financial year 1 July 1985 to 30 June 1986, incorporating the ten month period immediately prior to the accident, the actual gross earnings of the appellant were $62,782. In the nine month period from 12 August 1989 to 6 May 1990, a period after the accident, the actual gross earings of the appellant were $63,449. The later period of gross earnings derived from the appellant's work, in the main, in the Western suburbs of Sydney. The earlier period of gross earnings derived from the appellant's work in country areas which, as the Master noted, involved considerably more expenses to the appellant than typically accrued in the metropolitan area. Additionally, it had been suggested that the appellant had, contrary to his claims, been involved in some remunerative activities after mid-1990, the time he claimed that he had been forced to stop working. It was part of this suggestion that the appellant and others had been involved in a 'ruse' designed to conceal his true incomeand, in that way, to recover a verdict greater than he was properly entitled to. The Master did not make any positive findings in this regard. He preferred to rely upon the evidence concerning the actual gross earnings and the average number completed contracts per week in periods before and after the accident to demonstrate the absence of economic loss. It had been argued by the respondent that any brain damage or other psychiatric damage sustained by the appellant was a result of the appellant's excessive drinking. The Master rejected that allegation. The nature of the appeal — failure to have regard to objective evidence Before this Court the appellant sought a re-trial as to damages only. By such a re-trial the appellant sought to recover the damages to which he claimed he was entitled consequential upon a finding that he had, in fact, sustained brain damage or some other psychiatric injury in the motor vehicle accident. Such damages would include, for example, future psychiatric care and treatment, future medication costs, and most substantially future economic loss relating to loss of earning capacity. All of these had been claimed but rejected by the Master. Notwithstanding the thirty-two grounds listed in the notice of appeal, counsel for WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby P) the appellant indicated that primary reliance was to be placed upon grounds 5, 6, 7 and 8. The effect of those grounds is that: (a) the finding of fact by the Master that the appellant did not suffer brain damage erred in that the Master failed to have regard to a magnetic resonance imaging scan which provided objective evidence of structural brain damage; (b) as a consequence of (a), the Master erred in finding that the brain damage had not resulted in the appellant's capacity to work being diminished or destroyed; and (c) as a consequence of (a), the Master erred in forming an adverse view of the appellant as a witness of the truth. At the hearing of the appeal. the appellant sought and obtained the leave of the Court to add a ground of appeal to the effect that, if no organic brain damage was established, the Master had erred in failing to find that the past traumatic symptoms were related to emotional and psychiatric disorders brought on by the accident. Challenging a primary finding of fact influenced by the credibility of witnesses. The High Court of Australia has repeatedly cautioned against appellate interference with findings of fact made by a primary judicial officer where that judicial officer was, in coming to that finding of fact, influenced by the credibility of a witness relevant to that finding. A recent statement of the applicable rule is to be found in Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472. It also appears in Abalos v Australian Postal Commission (1990) 171 CLR 167 where the earlier authorities are collected. In Devries, at 479, Brennan, Gaudron and McHugh JJ said: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. [See Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 (HC); Jones v Hyde (1989) 63 ALJR 349 (HC); Abalos v Australian Postal Commission (1990) 171 CLR 167] If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' [SS Hontestroom v SS Sagaporack [1927 AC 37 at 47] or has acted upon evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' [Brunskill at 844]." A trial judge, or other primary finder of fact, certainly enjoys definite advantages in the process of fact-finding when compared to an appellate court. InGalea v Galea (1990) 19 NSWLR 263 (CA) at 265-266 I described some of those advantages as they seem important to me: The [trial] judge hears the evidence in its entirety, where the appellate court is typically taken to selected passages chosen by the parties to the appeal: see Lend Lease Developments Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210. The trial judge hears and sees all of the evidence in context, chronologically unfolding as it is given in testimony. Typically, the trial judge has the time during the trial and adjournments to reflect upon the evidence and to weigh it against all of the other evidence whilst the latter is still fresh in his or her mind. A busy appellate court may not always, in the nature of things, have the time or opportunity to do more than to visit particular passages of the transcript. From these there may, or may not emerge an accurate impression of the whole of the evidence and the conclusions to be derived from it. The trial judge has advantages which simply cannot be provided to an appellate court under 6 UNREPORTED JUDGMENTS present arrangements. He or she is aware of interruptions, hesitations and delays in the giving of testimony which will generally be quite unknown to the appellate court. The judge at the trial will be able to observe the body language of the witnesses that can sometimes be important for interpreting communication. This is usually unrecorded in the cold page of an appeal book. Despite the great advantages which a trial judge may have, the rule in Abalos and Devries ought not be considered, nor do I think was ever intended to operate, as a blanket or automatic rule prohibiting appellate interference with primary findings of fact recorded by the judicial officer at trial. Exceptions to the operation of rule are acknowledged in its various formulations. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted upon evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': see e.g. Devries at 479. These exceptions must be given a realistic and effectual operation if serious injustice is to be avoided in particular cases. An appellate court can scarcely close itseyes or ears to apparent injustice at the merest mention of 'credibility findings'. To adopt that course would be to surrender the court's functions to the way a primary judicial officer may happen or choose to express the reasons for decision. It is to misunderstand Abalos and Devries and other like case and to ignore the jurisdiction given to a court such as this not by the Court itself but by an Act of Parliament. The jurisdiction of the Court, and the judicial function itself, cannot be neutered by judge-made law where it rests upon statute and upon the very function of being a judge. Indeed, Deane and Dawson JJ in Devries noted that the 'value and importance' of the advantage which the trial judge enjoys in seeing and hearing the witnesses give evidence 'will vary according to the class of case, and, ... [the circumstances of] the individual case': See ibid at 479-480. I respectfully agree that, notwithstanding the application of the principle (and therefore even where the credibility of a witness is an issue), an appellate court "cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions': see Devries at 480 per Deane and Dawson JJ, citing The Glannibanta (1876) 1 PD 283 (CA) at 287. See also Coghlan v Cumberland [1898] 1 Ch 704 (CA) at 704f. Indeed, at least in the context of a rehearing under s 75A of the Supreme Court Act 1970, this Court is required by Parliament to give such judgment as appears proper upon the evidence before it. In Warren v Coombes & Anor (1979) 142 CLR 531 at 552, Gibbs ACJ, Jacobs and Murphy JJ said: The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In doing so it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.''Particularly, their Honours said, this Court is 'obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge': see ibid at 553. That duty does not fly out of the window because the primary judicial officer disbelieves a party or any other witness. Such disbelief greatly affects, and controls, the performance by this Court of its statutory function. But the function remains. The need for care in credibility findings. WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby P) The weakness of the thesis which would effectively eliminate appellate review on the merest mention of credibility findings was recently pointed out by Dr John Ellard, a leading Australian psychiatrist. Delivering a paper to the Judicial Conference of this Court, he cautioned strongly against the assumption that even 'skilled' and regular observers of human conduct (such as, presumably, judges) could derive accurate impressions from the appearances of witnesses giving evidence before a court. See J. Ellard, A Note on Lying and its Detection, unpublished, Supreme Court Annual Conference, Sydney, 1995. Amongst other things, Dr Ellard said: ... While I am sure that the experienced observer can picked unskilled liars, I do not believe that anyone can detect the moderately expert with any confidence. Psychiatrists who deal with people all day long have little confidence in their ability to do these things. They use the same techniques as the court; that is they ask clarifying questions and assemble evidence from other sources. There is another important variable in the equation. Everyone is familiar with the notion that making a measurement can alter the object of measurement. This is as true in small particle physics as it is in examining a witness. Putting witnesses in the box alters their behaviour, but who knows how much? A failed entrepreneur may be one person in the witness box and another one out of it, but then he may not be.""Later he said (at p 11): And what of demeanour in the box? The general bearing of the witness? I have argued that very unskilled liars will be obvious enough, but also pointed out that many honest people can be anxious, confused, hesitant and generally unimpressive as witnesses. On the other hand, skilful liars, charlatans, the deluded and those committed to causes can be very impressive indeed. One of the characteristics of psychiatrists is that we spend about as much time scrutinising ourselves as we spend observing our patients. We are aware, or should be aware, of how much our perception of the person opposite us is in danger of becoming a projection of our own inner world, knowing that this process can blind us or cause us to see things that are not there. It comes down to this. Lying is a universal skill; some are better at it than others, and some may make more use of it. As a consequence there is a need to detect lying when it occurs. I have not considered techniques with no validity at all ... Careful testing of the polygraph suggests that it is right about 70 % of the time; I know of no data which establishes that courts of law, when their judgments depend upon demeanour and presentation of the accused, or the witness, are likely to perform any better than the polygraph. Psychiatrists who work intensively with people all day long, have little confidence in their ability to make judgements of this kind, and will always put the meticulous investigation of facts a long way ahead of the confident use of intuition. If it is unsafe, as well as undesirable, to hang a man solely on the behavioural observations of a polygraph, then it would seem to me unsafe as well as undesirable, to hang a man solely on the behavioural observations of another man, no matter how skilled and experienced he may be. Observations of demeanour and behaviour in thehighly artificial and unfamiliar environment of the court of law may well be useful, but the possibility of false positives and negatives must be high. The Master's findings on credibility It is against the foregoing principles and considerations that I turn to the appellant's primary submission in this appeal. Counsel for the appellant contended that the Master had erred in basing his finding of fact (that the appellant had not suffered brain damage) upon his assessment of the appellant as a witness lacking credit. In this regard it is certainly clear that the Master did base that finding upon his assessment of credibility of the appellant. The Master said: 8 UNREPORTED JUDGMENTS Since it was essentially the case for the defendant [the respondent] that the plaintiff [the appellant] was fabricating his complaints upon which he based the allegation of brain damage and his consequent inability to engage in remunerative employment, it is appropriate that I should here record my views concerning the credit of the plaintiff. It will be appreciated that many of the complaints of the plaintiff are of a subjective nature, which can not be confirmed by objective clinical criteria. I was not favourably impressed by the plaintiff as a witness. However, if he was genuine, and if brain damage had been sustained by him in the accident, then my reaction to the plaintiff was quite understandable. For it is a concomitant of brain 10 damage that a person suffering therefrom might not present a particularly attractive or sympathetic figure. Nevertheless, I considered that the plaintiff was deliberately evasive in many areas of his evidence, in particular, concerning his personal finances, concerning his betting activities, concerning telephone calls from his residence, and 15 concerning his dealings with the Taxation Office and his payment of income tax. On all the foregoing matters I considered that the plaintiff under cross-examination chose to be deliberately evasive. The plaintiff showed himself to be deliberately dishonest in continuing to receive Social Security payments whilst also in receipt of earnings, and by his failure to repay those Social Security 20 payments. That conduct reflects most adversely on the plaintiff's credit. Further, I was not at all favourably impressed by the various outbursts from the plaintiff whilst he was giving his evidence,especially whilst he was under cross-examination. By the same token, however, it should be recognised that such outbursts may possibly be consistent with the plaintiff having suffered brain 25 damage. But if the plaintiff was not genuine, then those outbursts were not genuine, and the conclusion would be that they, like much of his evidence, would be regarded as a fabrication and as something deliberately made up in order to mislead the Court, and to obtain a verdict which he is not entitled. To summarise, I am most reluctant to accept the evidence of the plaintiff where 30 it is not supported by some objective findings by the various medical witnesses who have either treated or examined the plaintiff: Further, where the opinions of those medical witnesses are based solely on information supplied by the plaintiff or complaints made by the plaintiff; I have considerable reservation in accepting the opinions of those medical witnesses. The evidence of those witnesses in [sic] 35 dependent upon the credibility of the plaintiff: If I do not accept the evidence of the plaintiff; his case cannot be improved by the evidence of the medical witnesses who have, of necessity, had to rely upon what they have been told by the plaintiff.' (emphasis added) The appellant submitted that, contrary to the approach adopted by the Master, 40 he ought to have had regard to the MRI scan which, the appellant argued, provided objective evidence of structural brain damage. In this regard, counsel for the appellant submitted that the Master's finding was 'inconsistent with facts incontrovertibly established by the evidence' and, as such, it came within an exception to the primary rule laid down in Abalos, Devries and other like cases. 45 Failure to refer to an objective MRI scan consistent with brain damage I accept that submission. Even allowing fully for the advantages which a primary judicial officer is conventionally taken to have in assessing credibility, an injury such a brain damage is so potentially serious that it ought properly — at least where evidence is available — to be tested by objective medical evidence. 50 Accepting also that the responsibility lay on the appellant to prove his case, the failure of the Master to refer to, or apparently to consider and analyse, the report WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirb9 P) of the MRI scan inhis reasons leaves one with a deep sense of unease as to the outcome of this litigation. As a general rule, where objective medical evidence is available to ascertain if and to what extent brain damage has been sustained by a plaintiff, a primary-decision maker ought not to disregard that evidence (or even consider it of secondary importance) favouring instead a determination of that fact based upon the decision-maker's assessment of the plaintiff as a witness of the truth in respect of his complaint. Judicial impression, however confidently held, is a poor substitute for objective evidence upon such a matter. Indeed, whether or not a primary decision-maker does, in fact, disregard or inappropriately weigh the evidence is not even crucial. In such a case, relief ought to be granted by the appellate court where, upon a review of the reasons of the primary decision-maker, it appears that objective evidence of significance was, or may very likely have been, disregarded, or its consideration inappropriately weighed. It is important not only that the evidence be considered properly, but that its proper consideration also be manifest in the reasons of the primary decision-maker. A submission that a trial judge's finding of fact, based upon the assessment of credibility, errs for incompatibility with facts incontrovertibly established by objective evidence, is similar, in some respects, to the assertion that a trial has miscarried for the trial judge's failure in his or her reasons to make findings of fact on critical issues and to explain how particular findings were arrived at. In Mifsud v Campbell (1990) 21 NSWLR 725 (CA) at 728 Samuels JA expressed the duty of the judicial officer in this State in these terms: ... a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' — to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] INZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires.' Whatever unease one might have felt about the forensic validity of the Master's credibility-based assessment of the appellant's brain damage, that unease is greatly enlarged by the Master's express recognition that, if in fact the appellant had sustained brain damage, the same factors which induced him to treat the appellant as a witness without credit could also be consistent with the existence of brain damage. In this regard, the Master said: I was not favourably impressed by the plaintiff as a witness. However, if he was genuine, and if brain damage had been sustained by him in the accident, then my reaction to the plaintiff was quite understandable. For it is a concomitant of brain damage that a person suffering therefrom might not present a particularly attractive or sympathetic figure. He also said: Further, I was not at all favourably impressed by the various outbursts from the plaintiff whilst he was giving his evidence, especially whilst he was under cross-examination. By the same token, however, it should be recognised that such outbursts may possibly be consistent with the plaintiff having suffered brain damage. 10 UNREPORTED JUDGMENTS Clearly, such comment, in the circumstances of this case, when put beside the MRI report objectively establishing the essence of some brain damage — to use the words of Samuels JA in Mifusd v Campbell (1990) 21 NSWLR 725 (CA) at 728 — 'tends to deny both the fact and the appearance of justice having been 5 done.'"Leaving aside whether the relief the appellant seeks could be granted upon a basis similar to that identified in Mifsud v Campbell, it is necessary to consider whether the MRI scan, and those expert medical opinions based upon it, do, in fact, provide incontrovertible evidence in this case of brain damage, thereby making good the appellant's case. The respondent denied that this was so. The significance of the MRI scan report The MRI scan was performed by Dr Ho. In a report dated 7 April 1992, Dr Ho concluded: A mild communicating hydrocephalus is present. The small focus of increased signal 15 intensity noted in the left putamen would be consistent with a small area gliosis/infarction Dr Ho was not cross-examined upon his report for the respondent. The resulting MRI scan was examined by Dr Burke. In a report dated 30 April 1992, Dr Burke (after discussion, Dr Burke says, with Dr Connelly) made the following 20 comments: I believe that the area of gliosis in the left putamen would probably have been caused by trauma rather than vascular disease. The MRI Scans show evidence of frontal lobe atrophy, dilation of the cerebral ventricles and I believe that the area of gliosis in the left putamen is the direct result of the motor vehicle accident. The communicating hydrocephalus is the result of atrophic changes in the frontal area and this is the result of the motor accident ... ... The gliosis in the left putamen and the frontal lobe atrophy leading to the appearance of a communicating hydrocephalus is related to the head injury ... I think that these defects probably arose from the brain injury. I agree that there has been some mild brain damage occurring following the accident.' (emphasis added) 35 In his oral evidence, Dr Burke affirmed that he adhered to the views stated above. In a report dated 27 April 1992, Dr Langeluddecke said: I note that recent Magnetic Resonance Imaging indicates abnormal brain function. Given these findings, it is probable that the cognitive defects and mood disorder noted 40 at psychometric testing are probably attributable primarily to neurological impairment (ie brain damage). This neurological syndrome and the associated cognitive deficits are chronologically related to the head injuries which Mr Kirkwood sustained in a motor vehicle accident on the Ist May, 1986. Given radiological evidence of organic brain damage, rather than purely psychological, basis for Mr Kirkwood's cognitive deficits, he is unlikely to demonstrate a further improvement in his functioning with the passage of time. Similarly, in a report dated 28 April 1992, Dr Milton said: The few images obtained in the first test suggested ventricular dilation and thinning of the corpus callosum, findings confirmed in the 7 April 1992 MRI. In addition there 50 were changes in the immediate peri-ventricular region on the right and left sides. The changes were considered to be consistent with a mild communicating hydrocephalus. WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby P) There was also an area of increased signal intensity in the left putamen which the radiologist concerned considered to be consistent with a small area of scarring, possibly from infarction. The findings are abnormal ... At any event, I am sure they are not the typical 5 findings of a brain affected by alcohol. The MR is abnormal and further comment should be sought regarding the association between this and the accident. The area of gliosis in the left putamen would probably have been caused by trauma rather than vascular disease, given Mr Kirkwood's age. The communicating hydrocephalus requires comment more expert than mine, although I understand that hydrocephalus can occur as a result of trauma. I would be interest to see Dr Burke's opinion of the MR scan, but on the information currently available I think it likely that some mild brain damage occurred in the accident.' (emphasis added)More important, in my view, was the tacit acknowledgment by Dr Smith, a medical expert retained for the respondent, that the MRI scan showed some form of objective brain damage. Dr Smith in a report dated 28 May 1992, received into evidence, said: Dr Burke has commented upon an MRI scan of the brain performed on 7/4/92. This apparently showed evidence of frontal lobe atrophy with dilatation of the ventricles and an area of gliosis in the left putamen. Although the term 'communicating hydrocephalus' is used it would seem that Dr Burke and Dr Connelley considered that this was not really reflecting an obstruction to the flow of cerebrospinal fluid but merely reflected the atrophy; in other words it was an 'ex-vacuo' hydrocephalus. The real issue is which of the three injuries was the cause of these changes in the brain ... I would expect that any head injury severe enough to cause obvious frontal lobe damage and gliosis in the putamen would also have produced a significant loss of consciousness. It is thus more likely that the changes witnessed on the MRI scan arose from one of the earlier head injuries or a combination of the two.' While Dr Smith took issue with the classification of exact nature of the hydrocephalus, it is clear that he did not dispute that the MRI scan revealed some degree of brain injury or damage. In cross-examination, Dr Smith agreed that the appellant had sustained 'traumatic brain damage' and that the MRI scan showed changes that are 'indicative of brain damage.' Indeed, in his report he referred to it as an 'obvious frontal lobe damage and gliosis in the putamen'. That the MRI scan did show some damage or injury prompted Dr Smith to suggest that the real issue was which of the motor accident or two earlier head injuries allegedly sustained by the appellant had in fact caused such injury or damage to the brain as was revealed in the MRI scan. The appellant's own evidence suggested that the earlier head injuries, so far as he recollected, were relatively minor. Significantly, the appellant was not cross-examinedas to the extent or nature of the earlier accidents. Nor was any other evidence led by the respondent in respect of them. Sufficiently incontrovertible evidence has been shown Is the evidence which the appellant relies upon sufficient in this appeal to establish the incontrovertible objective evidence of brain damage? While, as Dr Burke acknowledged in cross-examination, an MRI scan did not, of itself, indicate the extent to which the person scanned has been actually affected, if at all, by the brain damage or injury, it was certainly incontrovertible evidence that there was some damage or injury to the appellant's brain. Certainly, the Master 12 UNREPORTED JUDGMENTS ought have had regard to it. With all respect, the Master ought, at the least, to have referred to it in his reasons. The MRI scan showed some damage or injury to the brain, the effect of which upon the appellant was unknown. It was incapable of differential analysis from the MRI scan or report itself. But the evidence of this unmentioned objective evidence should have turned the Master's attention to a proper regard to the appellant's symptomatic evidence of brain damage. Such symptomatic evidence might, of course, still have been affected by the proper assessment of the credibility of the appellant. However, the assessment of the credibility of the appellant could not be said to be proper where it appears that the Master did not have regard to — and certainly did not refer to — objective evidence, of a significant kind, suggesting some degree of brain damage or injury in this case. Common sense would dictate that a person who has suffered some degree of damage or injury to the brain may not be likely to be an ordinary or impressive witness. Upon that basis, the credibility of such a person ought not be assessed upon a basis normally applicable to an ordinary witness without clear evidence sustaining that course. Indeed, the Master very properly acknowledged that this might be the case. But he did not, with respect, follow his own logic with the illumination of the MRI scan and the evidence upon it. I am satisfied that there was before the Master incontrovertible evidence in the MRI scan, and the expert opinions based upon it, that the appellant had suffered brain damage or injury, although to an unknown extent. Appellate interference is therefore justified upon the principles established in Abalos, Devries and other like cases. In light of the potential seriousness and severity of brain damage, and the inherent difficulty in proving such an injury, the failure to address the MRI scan and the expert opinions directly concerning it, leave me with a sense of disquiet in this case. The issue was very important, indeed central to the appellant's claim for damages. A finding of brain damage injury — even to a minor degree — would be bound to carry with it an entitlement to damages, if not for proved wage loss at least for general damages for loss of earning capacity. The failure to refer to or to make findings upon such critical evidence could separately, in accordance with Mifsud v Campbell, justify appellate disturbance of the judgment of the Master. However, as this was not the way the appellant ultimately framed his case I will rest content to say that the case has been shown to fall within the exceptions justifying the interference of this Court, notwithstanding the credibility-based findings recorded by the Master. This was not a peripheral issue. It was at the very heart of the appellant's claim for damages. The appropriate relief to be ordered The appellant submitted that a re-trial of his damages should be ordered. Having regard to the length of the proceedings (some 27 days), it is with a great deal of reluctance that I am forced to agree. The error in approach on the part of the Master to the question of brain damage means that whatever followed in his findings on the appellant's disabilities must be approached with very considerable caution. In such circumstances, only a re-trial as to damages would be appropriate. Such is the nature of the case, that reassessment by this Court would be inappropriate. Having coming to the view that the appellant did in fact, as the MRI scan objectively showed, probably suffer some degree of damage or injury to the brain in the subject accident, it does not at all follow that the appellant was affected to the degree that he claimed. Indeed, at the re-trial, it might be shown that the appellant was not gravely incapacitated by the brain injury at all. Nevertheless, WARKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirlb3 P) because I have concluded that there is a very real risk that the appellant was not properly compensated in respect of some degree of brain damage (however minor or extensive) and that such deprivation resulted from an erroneous consideration by the Master of uncontested and objective evidence, this Court would fail in its duty if did not intervene by the ordering of a re-trial. Expensive and inconvenient though such a re-trial would be in a case of this kind, it is the price accepted by our legal system for assuring to every litigant a manifestly fair trial, determined not only upon often fallible judicial impression but on the critical evidence adduced. Further grounds of appeal and an adjournment Having reached this conclusion, it unnecessary to consider the appellant's alternative basis for expressing the primary ground of appeal. This concerned the submission that the Master had improperly failed to take into account the symptomatic evidence concerning brain damage and especially the evidence of witnesses concerning the appellant's character before and after the accident. Such a challenge would have faced greater difficulties in the light of Abalos and Devries, given the absence of separate objective or incontrovertible testimony (other than the MRI) demonstrating error on the Master's part. Similarly, the appellant's contention that, if the Master was correct in determining that he had in fact not suffered brain damage, then the Master erred in not finding that the appellant had suffered some other form of psychiatric injury, need not be decided. It is to be noted that the respondent objected to this ground of appeal upon the basis that the trial had proceeded upon the footing that the appellant'srelevant claim was brain damage and brain damage only. The respondent suggested that the first indication of this alternative 'psychiatric injury' case was upon the hearing of the appeal, specifically the introduction of the further grounds of appeal raising the point. After argument from the parties, an adjournment was granted to allow the respondent to prepare and meet this argument; it being considered necessary in the interests of justice that the appellant be able to make those submissions. In respect of that adjournment, which ultimately proved fruitless, it is appropriate that the appellant should pay the respondent's costs. Conclusions and orders. Being of the view that the Master erred in failing properly, or at all, to have regard to the incontrovertible evidence contained within the MRI scan and associated expert medical evidence and that, by that scan, the appellant had demonstrated that he suffered some degree of damage or injury to the brain, I would allow the appeal. I would order a re-trial limited to damages only. As to costs, I would order the appellant to pay the costs of the adjournment in this hearing. The respondent should pay the balance of the costs of the appeal. The orders I propose are therefore: 1. Appeal allowed; 2. The orders of Master McLaughlin set aside and in lieu thereof order: (a) That the proceedings be returned to the Common Law Division of the Supreme Court for a re-trial as to the damages payable by the respondent to the appellant in respect of injuries sustained by the appellant as a result of a motor vehicle accident on 1 May 1986; (b) The respondent pay the costs of the appellant of the appeal but have, in respect thereof, a certificate under the Suitors" Fund Act 1951; 14 UNREPORTED JUDGMENTS (c) The appellant pay the costs of the adjournment in the hearing of the appeal; and(d) The costs of the trial before Master McLaughlin be determined by the Judge or Master hearing the re-trial. Priestley JA. I agree with Kirby P. Powell JA. I have read in draft the Judgment which has been prepared by Kirby P with which Judgment, and the Orders proposed by Kirby P, I understand Priestley JA to agree. As will be apparent from what Kirby P has written in his Judgment, a major, if not the principal, part of the claim for damages which the Appellant sought to advance before the Master was that, in the accident in which he was involved in May 1986, the Appellant sustained traumatic brain damage, the sequelae of which included significant emotional and psychiatric disturbances and diminished intellectual function, and which disturbances and diminished intellectual function rendered the Appellant incapable of any gainful employment. As is also apparent from what Kirby P has written in hisJudgment, it is the non-acceptance by the Master of that part of the Appellant's claim which provides the principal occasion for the Appeal which has been lodged in respect of the Judgment delivered and verdict found by the Master. If any further demonstration that this was so be thought to be needed it may be found in the following grounds of Appeal which were originally taken on behalf of the Appellant: 5. That Master McLaughlin was in error in holding that he was not satisfied on the evidence that the existence of brain damage to the Plaintiff has been established. 6. That Master McLaughin ought to have found that the Plaintiff suffered serious organic brain damage in the accident which had, was and would continue to seriously diminish or destroy his capacity to work and earn. 7. That Master McLaughlin was in error in failing to consider and/or take into account the uncontested expert medical evidence of Magnetic Resonance Imaging findings that the Plaintiff had suffered structural organic brain damage in the accident. 8. That Master McLaughlin was in error in his findings that the Plaintiff had not suffered brain damage and was further in error in permitting that finding to unfavourably colour his stated attitude to the Plaintiff as being not very favourably impressed by the Plaintiff and in the Plaintiff not presenting a particularly attractive or sympathetic figure. 9. That Master McLaughlin was in error in his finding that the psychiatrist, Dr Koller agreed that there was no organic evidence of brain damage. 10. That Master McLaughlin ought to have found that any real or apparent inconsistencies in the Plaintiff's evidence and his conduct in the witness box, was the result of brain damage and of the psychiatric and emotional effects of the injuries suffered by the Plaintiff in the accident and their sequelae. 19. That Master McLaughlin's errors relating to the Plaintiffs brain damage and consequent view of him as a witness, caused him to fall into error in placing undue emphasis upon the evidence of the witnesses Neta Ann Grogan, Kenneth Gordon Beaver and Margaret Helen Pratt and failing to consider adequately or at all, that they were the only witnesses called by the Defendant in relation to the whole of the time of the Plaintiff's attempts to work after the accident. WHRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powel JA) One should, perhaps, add that, following discussion which occurred on the second day of the hearing of the Appeal, and as the result of leave then granted, (Transcript p 33), the Appellant later sought to add to his original Notice of Appeal 10 further grounds of appeal, the burden of which was that, even if the Master had been correct in finding that the Appellant had not suffered traumatic brain damage in the accident, he ought, nonetheless, to have found that among the sequelae of the accident which the Plaintiff had sustained were emotional and psychiatric disorders, independent of brain damage, which disorders had resulted in a diminution, or destruction, of the Appellant's capacity to engage in gainful employment. The evidence which was tendered in support of that part of the Appellant's case which sought to establish that the Appellant had suffered traumatic brain damage that of a number of lay witnesses including, in particular, the Appellant and that of a large number of medical witnesses as well as a number of clinical psychologists who had carried out psychometric testing of the Appellant. While some of those medical witnesses who were called to give evidence had, in fact, treated, or were, at the time, treating, theAppellant, others, very clearly, had been retained for the purpose of medicolegal examinations, not all of whom were called to give oral evidence. Among those who had treated, or who were treating, the Appellant, and who were called to give oral evidence, were Dr Ng, a general practitioner, who had, as it would seem, treated the Appellant for a time in the latter half of 1986, and a Dr Koller, who, at the time of the hearing before the Master, had been treating the Appellant for a period which appears to have commenced in late 1988. Among those who had been retained for the purpose of medico-legal examinations and were called to give evidence were Dr Burke, a neurologist, Dr Connelley a neuro-surgeon and Dr Milton a forensic psychiatrist. Those whose reports were tendered but were not called to give oral evidence included Drs. James and Breidis, each of whom was a plastic and reconstructive surgeon, and each of whom had treated the Appellant for his scalp injury, Dr Teychenne, a neurologist, Dr Middleton, who appears to specialise in rehabilitation medicine, and Dr Greenway, a psychiatrist, as well as Ms Tesoriero and Dr Langeluddecke who had carried out psychometric testing of the Appellant. The case which the Respondent sought to advance in this respect of this part of the Appellant's claim was, first, that the Appellant had not sustained any traumatic brain damage and that the complaints which he made, and upon which those whose evidence — whether oral evidence or reports — was tendered on his behalf, had relied for their view that he had sustained brain damage were fabricated; and, second, that if it were to beheld that, at the time of the hearing before the Master, there was evidence that the Appellant had sustained traumatic brain damage, that brain damage was due, either, to accidents in which the Appellant had been involved prior to May 1986, or, in any event, to causes not related to the accident of May 1986. The evidence which was tendered on behalf of the Respondent in support of that case included the evidence of a number of lay witnesses — whose evidence was relied upon to demonstrate that the Appellant had returned to his former employment within about 4 weeks of the accident and had remained in that employment for some years without evidencing signs of, in particular, intellectual or cognitive impairment — as well as the evidence of medical specialists and clinical psychologists by whom the Appellant had been examined on behalf of the Respondent. Not all those whose evidence was tendered on 16 UNREPORTED JUDGMENTS behalf of the Respondent were called to give oral evidence at the hearing before the Master. The principal witness who was called to give oral evidence on behalf of the Respondent was Dr Smith, a neuropsychiatrist. The reports of those who, although not called to give evidence on behalf of the Respondent, included those of Dr Somerville a consultant neurologist and Ms Singleton and Mr Cipriani, clinical psychologists. Given the nature of the claim which, in this respect, was made by the Appellant, and the defences to that claim which were advanced by theRespondent, it will come as no surprise that I record that the evidence which, in this respect, was tendered revealed a wide range of opinions as to whether or not the Appellant had sustained any traumatic brain damage in the accident; as to the extent of any traumatic brain damage which might have been so sustained; as to the continuing effect, if any, of any traumatic brain damage which may have been so sustained; and as to the effects which any such traumatic brain damage which may have been sustained would or might have had upon the Appellant's capacity to engage in gainful employment. Some indication of the variety of opinions offered both by differing medical practitioners and by the same medical practitioner at differing times, is provided by the following — far from complete — sample taken from the evidence: — 1. Dr Burke (a) in his report dated 14th October 1986 (Appeal Book 1511-1512) Dr Burke recorded: — He has developed increased nervous tension and impairment of recent memory following his severe impact and cerebral concussion, and I understand that cerebral C.T. Scan had shown no intra cranial abnormality ... To help determine any further evidence of residual cerebral injury an electrocephalotraphic (sic) examination should also be carried out. I would expect gradual improvement in this post concussive symptoms (sic) such as his increased tension and his increased alcohol consumption which is probably related to his tension state. Psychometric examination would also be advisable to determine the extent of any memory or cognitive impairment."'Despite this, no such examination as was suggested appears to have been carried out; (b) in his report dated 14 March 1989 (Appeal Book 1513-1514) Dr Burke recorded: Psychometric examination has indicated some _ intellectual dysfunction consistent with frontal lobe cerebral injury with secondary emotional disturbance. His symptoms are aggravated by post traumatic reaction with symptoms of anxiety and depression. There are no neurological abnormalities on examination apart from some residual weakness of right hand grip associated for the forearm fracture. (c) in his report dated 30th April 1992, Dr Burke, having considered the Magnetic Resonance Imaging ('MRI') report to which Kirby P has referred in his Judgment, continued: Psychometric testing indicated that his cognitive flexibility and verbal fluency were below the levels expected on the basis of his pre-morbid intelligence. I think that these defects probably arose from the brain injury. I agree that there has been some mild brain damage occurring following the accident. JOBNAME: No Job Name PAGE: 17 SESS: 1 OUTPUT: Mon Feb 25 18:14:18 2008 /reports/caseml]/case/urj/9508091 WHRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powell JA) (d) in the course of Dr Burke's oral evidence, the following appears (Appeal Book 284): — Q — And there is no way, as I understand it, for you to be able to look at the MRI or any other radiological test, for that matter, and determine the actual cause of the damage: A. That's right. Q— IfI can put it that way, in the brain, as detected? A. That's right. Q — One is very much dependent upon an honest and truthful history in part? A. Yes. and later Q— ... were the symptoms and complains which the Plaintiff made the you over all that period symptoms consistent with the changes in the MRI scan? A. I think they — they might be consistent, yes. 2. Dr Connelley — (a) in his report dated 22nd July 1986 (Appeal Book 1503-1504) Dr Connelley concluded: — This patient obviously suffered a concussive head injury in the motor vehicle accident of 1. 5.86 and this was associated with extensive scalp lacerations and a fracture of the right forearm. All these injuries are as yet in process of healing and it may well be advisable for this patient to have further investigation at a later stage when his condition is more stable. I would recommend that he have EEG examination and psychometric assessment at a later date. As I have earlier recorded no EEG examination appears to have been undertaken; (b) in his report dated 12th January 1990 (Appeal Book 1505-1506) Dr Connelley concluded: — I believe this patient's continuing disabilities are largely the result of frontal lobe damage and associated depression. I believe that his ability to return to work will depend on the assessment of psychiatrists and interpretation of psychometric assessment. There is no physical reason why he should not be able to return to his work. 3. Dr Greenway -In his report dated 19th May 1988 (Appeal Book 1540-1543) Dr Greenway reported: — Opinion Mr Kirkwood appears to have been involved in an accident which caused some considerable damage. I think he was briefly knocked out, as certainly there appears to be a degree of amnesia present. He does have some post traumatic phobias about driving in the country, and this appears to also involve semi-trailers. I notice that his psychometrics show some evidence of memory disturbance and he also appears to be more irritable and cranky than he was. This strongly suggests the possibility of some brain damage. The picture is however complicated by his alcohol intake. It appears that at the time of the motor vehicle accident he admitted to 15 middies a day, and liver function tests at the time showed some evidence of liver damage. It may well be that this man's alcohol intake has contributed to his condition. However I think that it is not alcohol alone that has caused this state, but also the motor vehicle accident. JOBNAME: No Job Name PAGE: 18 SESS: 1 OUTPUT: Mon Feb 25 18:14:18 2008 /reports/caseml]/case/urj/9508091 UNREPORTED JUDGMENTS It have now been some 2 years since the motor vehicle accident, I think that this man's condition is stable.' It should be noted that, at this time, the Appellant was in regular employment; 4. Dr Koller — (a) (b) In his report dated 18th May 1989 (Appeal Book 1485-1488) Dr Koller wrote (inter alia): — Opinion The patient suffers a post concussional state. This means following a head insult and a brief period of unconsciousness he has developed a clinical picture of heightened anxiety and depression, tension headaches, irritability, poor attention and concentration and dizziness. There is sleep disorder. The condition is brought about by a combination of factors. Another factor is that he suffered a head injury with no fracture to the skull. This is a paradoxical situation. In fracturing a skull the forces of the accident tend to be absorbed. But in the case of the patient there was nofracture and the forces of the insult transmit directly to the underlying soft jelly like vulnerable brain substance so there is the potential for subtle brain damage.' in his report dated 28th May 1990 (Appeal Book 1489-1490) Dr Koller reported: — The patient continues to show the post concussional state. In retrospect one might, consider a more appropriate daignosis (sic) as post traumatic stress state. This later diagnosis emphasis (sic) the acute serious stress to the patient of a sudden frightening accident where he realises that he might have been killed. Nevertheless it is stated that there has been some overall general improvement in his condition. He generally copes better, his mood is more stable and he does work on a part-time basis. However he remains vulnerable to the vicissitudes of life and quickly decompensates into an anxiety-depressive picture in the face of a demanding situation as shown above. in his report dated 6 March 1992 (Appeal Book 1491-1492) Dr Koller records (inter alia) — I have continued to see Mr Kirkwood and he has been regularly accepting a tranquilliser (Ducene) and an anti-depressant (Sinequan). There really has been little shift in his overall psychiatric state and he seems to have achieved a plateau. His chief complaints of headaches, poor concentration, irritability, proneness to depression an (sic) upsurges of anxiety continue. Sleep is never really peaceful and refreshing. He remains vulnerable to life's vicissitudes. He has made several efforts at part-time light duties type of work but this came to naught as he symptoms and vulnerability got the better of him. Reviewing my notes the only symptoms that has (sic) not been emphasised any longer is dizziness. WHRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powel JA) (d) Again, little change to report from previous reports. His post-concussional state with overtones of post traumatic stress state has become chronic. For the future he would require continuing supervision and medication to maintain his plateau-like state. in his report dated 12th August 1992 (Appeal Book 1591-1592) Dr Koller reported (inter alia): — There is no significant change to report. The patient remains depressed and highly anxious. He shows a low frustration tolerance. Thus he continues to require tranquilliser and anti depressant medication. (Ducene and Sinequan respectively) as well as analgesics (Panadeine forte) as the time to Court approached and he had also to consult his various legal advisers, more anxiety intruded. He explained when he gets panicky and anxious his mind goes blank. When he cannot remember he becomes even more anxious. Very bitter and angry he expressed some suicidal ideation that the Court Case is taking so long.' 5. Dr Milton — (a) (b) in his report dated 14th March 1992 (Appeal Book 1562-1568) Dr Milton, after referring (Appeal Book 1565) to the conflicting reports of the psychologists who had examined the Appellant, and after referring to 'the issue of alcohol' which he was inclined to discount (Appeal Book 1565-1567), continued (inter alia): — The accident was terrifying and shocking. He remembered enough of it to be exceedingly distressed by it. I believe the shock of the accident, the associated injuries, the change in appearance, and general physical and emotional effects, caused a severe reactive depressive illness. He showed a positive response to treatment for a time but later slipped back. It is probable he suffered mild brain damage which showed itself principally as reduced organisation. It also had an emotional effect which was part of the very considerable emotional response following the accident.'"'and concluded by recommending further psychometric tests and also an MRI examination. in his report dated April 1992 (Appeal Book 1569-1573), which was written after he had received a report on the MRI examination and also the psychometric test results from Dr Langeluddecke, Dr Milton wrote (inter alia): — The few images obtained in the first tests suggested ventricular dilation and thinning of the corpus callosun, findings confirmed in the 7 April 1992 MRI. In addition there were changes in the immediate peri-ventricular region on the right and left sides. The changes were considered to be consistent with a mild communicating hydrocephalus. There was also an area of increased signal intensity in the left putamen which the radiologist considered to be consistent with a small area of scarring, possible from infarction. The finds are abnormal. I suggest you forward a copy of the report to Dr Burke for his comments regarding a possible connection between the accident and the investigation findings. JOBNAME: No Job Name PAGE: 20 SESS: 1 OUTPUT: Mon Feb 25 18:14:18 2008 /reports/caseml]/case/urj/9508091 UNREPORTED JUDGMENTS After dictating the above I received a copy of the psychometric test results from Dr Langeluddecke. She noted a complaint of poor concentration, particularly in the presence of any emotional upset; and a tendency to find it harder to concentrate the more he tries. She also noted complaints of poor short term memory, a tendency to repeat himself, to misplace objects, and to have a poor sense of orientation when travelling in unfamiliar areas. She noted he relied heavily on a diary and reminder notes. From an emotional point she recorded a tendency to worry, be emotionally labile, have trouble controlling emotions, be preoccupied with morbid thoughts, and to sleep poorly, frequently waking through the night. Psychometric testing indicated average intelligence and Dr Langeluddecke considered that Mr _ Kirkwood's present functioning was slightly below pre-morbid levels. There were no major problems with receptive or expressive language. He was well capable of reproducing a complex figure. His ability to solve problems using blocks and in a assembly tasks was less than expected. There were no major memory problems on testing. There was no indication of frontal lobe dysfunction. Mood was reported to be within the range of mild depression. Dr Langeluddecke considered overall that the results of tests of attention, high level visuo-spatial reasoning, cognitive flexibility and verbal fluency were below the level expected on the basis of his pre-morbid intelligence. She thought this could be a result of emotional problems resulting from the motor vehicle accident, or from brain injury, but it was impossible to separate the two on the basis of psychometric testing alone. 6. Dr Smith — (a) in his report dated 25th November 1988 (Appeal Book 1800-1809), Dr Smith, after reviewing all the medical, psychiatric and psychological, reports then provided by the Appellant's solicitors, concluded: — In summary, the evidence does not support the contention that he has suffered brain damage in the accident. His depression is his main residual deficit and this most likely arises from his long standing alcoholism and his poor tolerance to the stress of the minor injuries incurred in the accident. quot;. Further, although she noted that any loss of consciousness must have been minor, she did not then explain how he could have suffered the deficits that he claimed. (b) in his report dated 4th July 1990 (Appeal Book 1810-1814) Dr Smith concluded: I abide by my contention that he did not suffer from brain damage in the accident. He has no doubt always been an emotionally very immature man with long standing problems with alcohol abuse and a high vulnerability to stress or conflict. He reacted to the stress of the minor injuries incurred in the accident with a neurotic depression.""(c) in his report dated 23rd October 1990 (Appeal Book 1815-1816), Dr Smith, after referring to the reports of Dr Koller wrote (inter alia): — WARIKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powéil JA) In his first report Dr Koller opined that he had suffered a "post concussional state" that he considered was contributed to by emotional factors and possibly "subtle brain damage". In his second report he stated that a more appropriate diagnosis might be a "post-traumatic stress state". The label of Post Concussional State is applied loosely to the constellation of features such as mood disorders, poor concentration and memory and dizziness that is not uncommonly seen after head injuries. While it used to be thought that this syndrome arose as a result of subtle brain damage the more recent reviews of the literature indicate that this is probably not so. The term Post Traumatic State is applied to people who suffer an acute stress that is recalled vividly and results in a constellation of anxiety symptoms and features such as nightmares of the event, flash-backs of the event and evidence of situations that remind them of the trauma. It tends to be perpetuated in those that have an underlying vulnerability of personality. It would seem that Dr Koller took Mr Kirkwood's account of his early personality at face value and is unaware that he abused alcohol to a considerable extent before and after the accident. He has also not commented on his considerable immaturity. Surely if he is made aware of Mr Kirkwood's drinking problem he will concede that he was most likely a very vulnerable personality before the accident. There is little evidence that would indicate that Mr Kirkwood suffered any other than a transient disturbance of cerebral functioning as a result of the accident. The symptoms experienced after the accident fit the description of a Post Concussional Syndrome but this cannot be considered to reflect any "subtle brain damage". Rather it reflects at least the emotional vulnerability of his personality and it is possible that his current state is not much different to that before the accident. I do not think that his symptoms fit the classic description of the Post-traumatic Stress State.""(d) in his report dated 28th May 1992 (Appeal Book 1822-1823) Dr Smith, who had seen the reports of Dr Milton of 28th April 1992 and Dr Burke of 30th April 1992, wrote (inter alia): — Dr Burke has commented upon an MRI scan of the brain performed on 7.4.92. This apparently showed evidence of frontal lobe atrophy with dilation of the ventricles and an area of gliosis in the left putamen. Although the term "communicating hydrocelphalus" is used it would not seem that Dr Burke and Dr Connelley considered that this was not really reflecting an obstruction to the flow of cerebro spinal fluid but merely reflected the atrophy; in other words it was an "ex-vacuo" hydrocelphalus. The real issue is which of his three injuries was the cause of these changes in the brain. Mr Kirkwood indicated that he suffered a concussive injury when he was 10 years old and a further head injury with loss of consciousness in a motor vehicle accident that occurred when he was about 18 years old. On the other hand whilst he was scalped in the accident on 1/5/86 there is no real evidence that would indicate that he was every rendered unconscious. No loss of consciousness is mentioned in the Traffic Collision Report, any loss was queried when he attended Yass hospital, the Royal Canberra Hospital states that no loss was recorded by him or his travelling companion. Mr Kirkwood told me that his 22 UNREPORTED JUDGMENTS travelling companion never commented on his having lost consciousness and the driver of another vehicle apparently gave evidence in court that he never saw him unconscious. I would expect that any head injury severe enough to cause obvious frontal lobe damage and gliosis in the putamen would also have produced a significant loss of consciousness. It is thus more likely that the changes witnessed on the MRI scan arose from one of the earlier head injuries or a combination of the two. Dr Milton stated that these were not the typical findings of a brain affected by alcohol and I agree. Whilst I believe alcohol abuse has paid a significant part in Mr Kirkwood's neurotic presentation, I have never suggested that this has been of sufficient degree to have caused brain damage. Dr Milton dismisses the prospect that Mr Kirkwood has abused alcohol over the years. I find it hard to understand how he can do so given the history obtained by the staff of Royal Canberra Hospital that for 18 years, and so since 1986 which is the year in which he had his car accident, he had consumed 15 or more beers a day! It is possible that the car accident produced frontal lobe damage with some resulting disinhibition of personality and that this was one of the reasons for his alcohol abuse. It will be of great importance to obtain any hospital reports concerning this 1986 accident and its effect.""(e) in the course of Dr Smith's cross-examination, the following passages appear (Appeal Book 1426): Q — The situation is that he has got organic brain damage, has he not? A. Yes. Q— And that that organic brain damage has resulted from this accident on 1 May 1986? A. I would not agree with that at all. He has structural damage to the brain. He has not (sic) symptoms that one can ascribe to it. He has no obvious organic change of personality. He has no obvious cognitive problems arising from that accident. All you can see there is a shaded (?) frontal lobe. and later (Appeal Book 1432): Q— I put it to you that your diagnosis which you made in 1988, 1990 and 1992 that there was no brain damage was in fact wrong? A. There is evidence of structural brain damage. There is no evidence of clinical brain damage or — sorry — the clinical effects of any such brain damage. Q — There is in fact as you have told us I think on several occasions — there was organic brain damage? A. There was structural brain damage but there were no clinical features indicative of brain damage. Q— And you said, did you not, that the patient has no organic personality changes? A. That's correct. Q — What do you mean by saying that there were no organic personality changes? A. If a person had an organic personality change resulting from head injury it would become evident immediately so that once he regained consciousness one would have expected him to be either disinhibited or apathetic. If he suffered a disinhibited personality change, you would have immediately seen considerable irritability, argumentativeness, violence, restlessness, impulsiveness, tactlessness, profanity and decay of social habits and graces. If he had suffered an apathetic syndrome, then he would have been sitting around totally unmotivated, uncaring, oblivious to the worries of the world and then one would have seen an improvement in those, either one of those, over the following 12 to 24 months. But the essence is he would have shown those features immediately after the event. WHRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powea JA) Q — May I just ask you one or two further questions doctor about your view as to the cause of his traumatic organic brain damage at a time when you had only the information that he had been injured at the age of ten and you did nothave and were asking for any hospital reports that might be found relating to his 1986 accident, how was it that you were able to come to such a positive diagnosis that it was the first or it was the first or second accident about which you had no detail that had caused the organic brain damage but that the subject accident had not? A. If the subject accident had caused organic brain damage, there should have been of such a degree that is shown in his MRI scan — there should have been a significant period of impaired consciousness immediately after the accident and the immediate exhibition of personality changes and cognitive changes. Once he regained full consciousness in the ambulance, one should have seen him exhibiting these changes. They should have been evidenced in hospital yet the evidence we have of this man is that when he was first seen by the ambulance crew he was perfectly conscious. He got a score of five which meant he was fully oriented. Forty minutes he was fully oriented. Q— What you.. A. Forty minutes later he was fully oriented. The ambulance report you showed me this morning communicated this score. He was never unconscious. When he arrived at Yass hospital is was noted that he was fully conscious and he remained fully conscious throughout his hospitalisation. This wide range of varying opinions as to the nature, and effect, of the injuries which the Appellant suffered in the accident demonstrates, in my view, that there was evidence before the Master upon which, if he found it acceptable, and his acceptance of it could not legitimately be challenged, he could found the conclusion, to which he came, that it had not been established that the Appellant suffered any brain damage in the accident. The question thus is, has any valid challenge been made to the Master's acceptance of that evidence and the conclusion which he based upon it. I hope I do no disservice to Kirby P when I observe that his Honour appears to accept that, in cases such as this, in the absence of observable,and established, clinical signs, the opinions of medical experts — which thus necessarily depend upon the histories which they have been given, and the symptoms of which the subject complains — ultimately depend upon the acceptability, as an historian, of the subject who provided the histories and the acceptability, as a witness of truth, of the subject who recorded the complaints upon which the witnesses have based their respective opinions. If this be a correct assessment of Kirby P's view then I could not but agree with it. That this was the approach adopted by the Master to this part of the Appellant's case is, I think, made clear by that passage in the Master's Judgment which Kirby P has set out on page 5 of his Judgment: The allegation of brain damage depends, ultimately, not upon any facts which are susceptible of objective proof, but upon the subjective complaints of the plaintiff and upon the opinions of medical experts based upon the genuineness of those subjective complaints. I am not satisfied that the existence of brain damage has been established." This being the Master's approach to that part of the Appellant's claim, it seems to me that no legitimate challenge can be mounted unless it can be demonstrated that there were objective clinical signs demonstrated beyond any peradventure which the Master have overlooked. As will be apparent from Kirby P's Judgment, the challenge which, in the end, the Appellant makes to the Master's Judgment, UNREPORTED JUDGMENTS which challenge Kirby P has found acceptable, is reduced to two simple submissions, they being: — 1. 2. the MRI scan provided objective evidence that the Appellant had suffered traumatic brain damage; and2. the Master's finding that he was not satisfied that the Appellant had suffered brain damage in the accident "was inconsistent with facts incontrovertibly established by the evidence:. I regret to say that I am unable to accept, either, the first of these submissions — if what is meant thereby is that such brain damage as was revealed by an MRI examination conducted in April 1992 was necessarily caused by trauma or, more particularly, that it was necessarily caused by the accident — or, the second of those submissions — for unless the first be established, it cannot be said that the second flows necessarily from it. So far as the first of these matters is concerned, it cannot be too highly stressed that all that the MRI examination established was that, in April 1992, there appear to have been signs of organic brain damage, the causes of which — particularly whether or not those causes included external trauma — were not established and the effects of which likewise were not established. Lest this be thought to be an overly simple view, I pray in aid the following passages in the evidence of Dr Burke — some in chief, and some in cross examination — to some of which I have earlier referred: — (1) (Appeal Book 282) Q— From your point of view as a neurologist what is the effect of the organic damage that we understand to have taken place? A. I think there has been organic damage in the frontal part of the brain and that has varying clinical effects from being undetectable to showing quite marked changes in brain efficiency. Q— Then, Doctor, you note in the penultimate part of your letter the frontal lobe atrophy and that there was a communicating hydrocelphalus which was related to the head injury? A. Well, I take that hydrocelphalus, communicating hydrocelphalus as the expression of some cortical atrophy, some brain atrophy; gives appearance of hydrocephalic dilation of the ventricles. Q — And I ask you to comment on the effect, from your point of view as a neurologist. What is the ambit of the effects that you would expect from that? A. Well, there need be — there need be very little but there can be general impairment of brain efficiency, impaired psychometric functions.' (Appeal Book 283) Q — Doctor, just dealing with the MRI scan, right, and the interpretation of it, I think you would concede, would you not, that in itself it might be having no affects upon the plaintiff? Do you agree with that? A. Yes. Q — Further, that in psychometric testing again one is relying upon the subject capacity of the plaintiff himself to apply himself to those tests? A. Yes. Q— And in the integrity of the plaintiff in applying himself to those tests? A. Yes. Q— And whether or not this man has suffered brain damage that affected him, at the end of the day, there is nothing in the MRI scan that determines that it has affected him, correct? A. No. WHRKWOOD v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powe JA) Q — You agree? A. I agree. 3. (Appeal Book 285-286) Q— And there is no way, as I understand it, for you to be able to look at the MRI or any other radiological test, for that matter, and determine the actual cause of the damage? A. That's right. Q — If I can put it that way, in the brain, as detected? A. That's right Q — One is very much dependent upon an honest and truthful history in part? A. Yes. Q— And can I take it, Doctor, that even without a history of head injury, these MRI results could have been congenital in origin? A — Yes, yes. Q— And without a before and after — A. Without a before and after scan Q — - One would not know? A. Wouldn't know. 4. (Appeal Book 291) Q— And if you look at it from a neurological point of view and forget the subtleties of psychiatry at the moment, there would be nothing on your examination or, alternatively, what you know about him today from the MRI scans that would mean that he could not do that work? A. No, no. Q— So at the end of the day, it is not a neurological problem in terms of doing this work; it is one of accepting his subjective complaint alone? A. Yeah, yes. It is mainly a subjective complaint and -Q. And one that is not able to be objective (sic) identified on CAT scan, MRI or anything else, for that matter? A. Yes, yes. With respect to those who hold another view, it seems to me that, in the light of fact that what is revealed by the MRI examination, cannot be identified as traumatic in origin, and still less, an injury sustained in the accident in May 1986, it is impossible to say that the MRI scan provided objective evidence of traumatic brain damage and still less that the Master's finding which is now under challenge was 'inconsistent with facts incontrovertibly established by the evidence. This being, as I have earlier recorded, the only challenge of any substance which has been made to the Master's Judgment, and that challenge, in my view, having been found to be wanting in substance, I would propose that the appeal be dismissed with costs. 1. Appeal allowed; 2. The orders of Master McLaughlin set aside and in lieu thereof order: (a) That the proceedings be returned to the Common Law Division of the Supreme Court for a re-trial as to the damages payable by the respondent to the appellant in respect of injuries sustained by the appellant as a result of a motor vehicle accident on | May 1986; (b) The respondent to pay the costs of the appellant of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951; (c) The appellant pay the costs of the adjournment in the hearing of the appeal; and (d) The costs of the trial before Master McLaughlin be determined by the Judge or Master hearing the retrial. Counsel for the appellant: J A Crumpton QC / D J Cutler Solicitors for the appellant: G J Sharah Henville and Co 26 UNREPORTED JUDGMENTS Counsel for the respondent: J Poulos QC / G F Butler Solicitors for the respondent: G M Meadows (Solicitor for the NSW Insurance Ministerial Corporation)