GONZALES v JAMES N KIRBY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 24 March 1995, 24 March 1995 [1995] NSWCA 179 PERSONAL INJURIES — ASSESSMENT OF DAMAGES — plaintiff hurt herself at work — issue before the trial judge became whether the plaintiff's claimed continuing symptoms were genuine — trial judge did not accept the genuineness of the plaintiff's symptoms. Held: on the evidence before his Honour there was a real issue whether the plaintiff's symptoms were functional, and not feigned; and further, whether they may have been partly feigned or exaggerated, but nevertheless still at least partly functional and stemming from the injury. The misunderstanding of certain evidence, the non-recognition of the functional overlay issue, and the consequent failure to explain why the functional side of the plaintiff's presentation was not accepted by the trial judge combine to make his Honour's judgment so flawed as to require that it be set aside. Priestley JA This case falls into a familiar pattern. The plaintiff hurt herself at work in April 1985. She suffered a soft tissue injury to her neck. It was of a kind which doctors expect to clear up within a short time. The plaintiff sought damages from her employer. Her case came on for hearing on August 1988. She claimed to have persistent and disabling pain in her neck and head, and associated symptoms. The employer's liability was not strongly disputed, and his Honour, Judge Downs QC of the District Court, found the employer liable for whatever damages the plaintiff suffered. The issue in the case became whether the plaintiff's claimed continuing symptoms were genuine. Medical reports were tendered by both plaintiff and defendant on the issue. There was material in these reports entitling the trial judge to come to the conclusion that the symptoms were either feigned or genuine, but functional. Film of the plaintiff was found by the judge to support the view that the plaintiff was feigning. The plaintiff herself gave evidence. The judge found that the plaintiff had nothing wrong with her from 4 June, 1985, about seven weeks after the work injury. He awarded her damages on that basis, and she has appealed to this Court. The critical issue on the question of damages was whether the plaintiff was deliberately exaggerating her symptoms. The judge did not accept the plaintiff's explanation of what was shown by the film; this explanation, putting it in my own words, was that the symptoms came and went, and were better or worse, according to the extent the plaintiff was relieved by medication at particular times. Had the judge accepted the plaintiff's explanation he would have had to consider whether the plaintiff had a functional overlay, to use the common term, stemming from the accident. The judge's assessment of the plaintiff was thus a critical step on the way to his conclusion that the plaintiff's symptoms were not genuine. 2 UNREPORTED JUDGMENTS The judge's view of the plaintiff's credit was unfortunately affected by some misunderstandings of the evidence. In cross-examination the plaintiff was asked whether she had enrolled in March, 1988 in a stretch sewing class. She answered yes, and then said she attended it one day a week. The judge intervened at this point to say that he did not know what a stretch sewing class was. The evidence thereafter, so far as I can understand it, provided no enlightenment on that. In answers in cross-examination the plaintiff said that she had attended the classes for up to five weeks. She was not clear about the number of weeks during which she had gone to the class; the upper number being five, she was asked about how long they were, and could not remember. A length of four hours was mentioned to her to which, as I read the evidence, she did not positively assent, although she did not assert how long the classes lasted, as her evidence was left. Her evidence also was that at the sewing classes no practical work was done; the people attending simply listened to instruction from whoever was giving the classes. In the judge's reasons for judgment he referred to this attendance by her at sewing classes as if it adversely affected her credit. What his Honour said was: "Although the plaintiff alleged she could no longer sew, after it was put to her that she attended sewing classes following her fall she admitted to attending weekly sewing classes during 1986, 1987 and 1988." His Honour added correctly that she had said they were limited to one hour classes, but could have been four hours, and further said that although she attended, she did not use her arms or her neck to perform any activity. It was argued in the argument in this court that the judge was wrong in saying the plaintiff had gone to the classes in 1986 and 1987. The way this evidence impressed the judge is indicated by the fact that his actual words were: "She further alleged that although she attended, she did not use her arms or her neck to perform any activity." This could be thought to be a minor matter, but it does not seem to me, in the circumstances of this case, his Honour's misunderstanding of the evidence about sewing can be lightly disregarded. The way his Honour's reasons proceeded was that first he dealt with the plaintiff's claimed symptoms and her evidence about them, then the film, and then the medical evidence. He came to the conclusion that he accepted two doctors, and on the basis of his understanding of their reports decided that the plaintiff had been fully fit for work from 4 June, 1985. Having reached that conclusion, he mentioned a number of other matters which he said caused him to find the plaintiffs evidence regarding disability unacceptable. There were five of these, one of which was the matter of the sewing. This was the second time his Honour referred to the evidence about the sewing classes. The first time was that already dealt with, and which occurred in that part of his reasons which his Honour said led to his decision without reliance on the additional matters about credit. He indicated that these fortified his opinion, but had not been relevant in forming it. The matter of sewing, however, must be excepted from the other matters that he mentioned as going to the unacceptability of the plaintiff's evidence regarding disability, because he referred to it in the reasoning leading to his conclusion. Apart from this there is only one other of the subsequent credit matters which I will deal with specifically. The others were criticised by counsel for the plaintiff in the appeal, and there may well be some merit in some of the criticisms, but I URJ GONZALES v JAMES N KIRBY PTY LTD (Priestley JA) 3 do not find it necessary to decide about them. The further one I do deal with is what the trial judge referred to as a charge of $1,730 for medical expenses for a doctor whose name he said was not even mentioned in evidence. This reference can best be explained by mentioning the places in the appeal papers where the figure of $1,730 appeared. The first place was in the schedule under Pt12 R4A of the District Court Rules in which the plaintiff listed injuries, disabilities, and out of pocket expenses, as well as the wage loss that she was claiming. Amongst the out of pocket expenses there was an item: "Dianne Ellem physiotherapist, $1,730." In the course of her evidence in chief she was asked whether she had undergone physiotherapy from sometime in 1985 until about March, 1986 and she had answered yes to that, and then yes to the next question which was: "Was that with a lady, Dianna Ellen?" Although as recorded in the transcript, the spelling of the name is not identical with that in the particulars, quite plainly it is the same person and the same item that was being referred to. The next reference in the appeal papers is in what was Exhibit L before his Honour, which was a list of agreed out of pocket expenses. These were divided into two parts, those before 4 June, 1985 and those after. The first item in the latter category was: "Doctor Ellem $1,730." Although the physiotherapist has been elevated to the status of a medical practitioner, this is quite plainly also the same item as that I have already mentioned as appearing twice before in the papers. His Honour sought to make it clear that this, amongst the group of items that I have been discussing, did not play a part in his decision but fortified it. Nevertheless, the way he dealt with the matter shows that in his mind at the time of the delivering judgment this particular matter was present as one fortifying his view of the plaintiffs unacceptability. Apart from indicating a misunderstanding of a particular fact, which in itself might not be of particular importance were the circumstances different, the judge's failure to appreciate the significance of the $1,370 item in the out of pocket expenses shows that he did not take into account the particular piece of evidence which had, at the very least, some bearing upon an assessment of the genuineness of the plaintiff's symptoms after 4 June, 1985. The judge's view really involved the idea that that expenditure was not connected with the work injury, and was obviously associated with his conclusion that he was not satisfied that the plaintiff was not simply feigning her symptoms. If he had appreciated that there had in fact been physiotherapy of a not inconsiderable kind after the date as at which he regarded the plaintiff as virtually completely recovered from the accident, he may well have thought further before coming to the conclusion that he did, particularly in regard to the cut off date of 4 or 5 June which he chose. There is a further example of this particular defect in his Honour's consideration of the case, at least so far as appears in the reasons he gave for his decision. Doctor Giblin had mentioned in his report, and I cannot imagine that correctness of the factual statements I am about to refer to was in question at the trial, that he had twice conducted a manipulation of the plaintiff's cervical spine; the first time on 26 November 1985, and the second time on 23 June 1986. The out of pockets charged for Doctor Giblin was $622. In ordinary experience people do not undergo manipulation of this kind unless there is felt to be a genuine need for it. Of course that does not mean that every manipulation of this kind is a genuine one in the sense in which genuineness has been in question in 4 UNREPORTED JUDGMENTS argument in this appeal. I can well imagine that unnecessary manipulations are sometimes conducted for wrong reasons, however, I do not see how the judge could have taken the view in this case that that was the explanation for these two procedures. For any such a view to be taken, something much more explicit would have had to be raised by the defendant in the trial about the fact of those manipulations. Further, at the very least, these items of post 4 June, 1985 objective events, in the circumstances of this case, required some discussion by the trial judge in his reasons. The inference that I draw from the fact that he did not discuss them is that he did not appreciate their possible significance in regard to the issue of credit which was central to the case. There is another feature of the medical evidence in this case in respect of which I think there was a defect in the trial judge's reasoning as recorded. All the doctors' reports supported the view that the plaintiff had suffered a muscular ligamentous type cervical strain. Almost all of them indicated in their reports that they could see no physical basis for the continuing symptoms up tot he time of trial which the plaintiff was alleging stemmed from her work injury. One of the doctors directly raised in his report the likelihood, another doctor the possibility that the plaintiffs symptoms, although not based on any observable objective signs, may have had a psychological origin, and although this was not spelt out, it necessarily followed that there was a probability or a possibility that they were quite real to the plaintiff and compensable as a result. The first of the doctors was Doctor Teo who said that clinically she had no objective findings to substantiate her claim of symptoms. He believed however: "Because of her personality she has developed what Gotten called 'reactive post-traumatic neurosis' with this problem. Unless she is well motivated, or encouraged to be motivated, it is likely, even with intensive rehabilitation, her prognosis is poor. The chances of her returning to her work is dim." The other doctor, Doctor Swayne, whose report was tendered in the defendant's case, said: "Tn the absence of any evidence of cervical spondylosis, it is inconceivable that this condition has persisted fro two years. I consider that her condition and symptoms are entirely functional." It was submitted for the defendant in the appeal that the last sentence of Doctor Swayne was a plain indication that he did not accept the reality of her symptoms. Simply reading the report, the sentence would strike me as non judgmental in the sense that the doctor was leaving open the question whether these symptoms, for which there were no physical pointers, were feigned or real. Thus, in my view, the evidence of Doctors Teo and Swayne raised as a real issue in the case whether the plaintiff's symptoms were functional, and not feigned; and a further problem that arises in these cases, whether they may have been partly feigned or exaggerated, and nevertheless still at least partly functional and stemming from the injury. In the circumstances of this case it seems to me that the trial judge needed to give some indication why he did not accept the genuineness of the symptoms in the sense of there being the result of functional overlay. This proposition was raised with the defendant's counsel who said it was easily answered by the fact that the judge did not believe the plaintiff. The problem with that answer is that for the reasons I have already mentioned the judge's reasons for not believing the plaintiff were flawed. URJ GONZALES v JAMES N KIRBY PTY LTD (Priestley JA) 5 The physiotherapy and the manipulations already mentioned were relevant to the reality of her subjective pain. The physiotherapy was not only not dealt with in this connection, but the judge's misunderstanding of the evidence about the physiotherapy charge fortified his disbelief in the plaintiff's version of her symptoms. The failure to deal with Doctor Giblin's evidence in this respect also increases my uneasiness that the case before his Honour was not a properly considered one. The matters that I referred to as mistakes were relevant to the question of the acceptability of the plaintiffs evidence. It seems to me that the misunderstanding of the evidence, the non-recognition of the functional overlay issue and the consequent failure to explain why the functional side of the plaintiff's presentation was not accepted by the trial judge combine to make his Honour's judgment so flawed as to require that it be set aside. In the circumstances of the case it necessarily follows that a new trial must be ordered. This is not something lightly to be ordered in view of the times that have elapsed in this case, but notwithstanding the vigorous advocacy of the defendant's counsel, I am left with the very firm impression that the judge's reasoning was flawed in material ways affecting the quantum of damages, and that the only fair result in the circumstances is to give the plaintiff the opportunity of a new trial. Cole JA I agree. Priestley JA The orders of the Court are that the judgment below be set aside except as to costs and that a new trial be ordered, limited to the question of damages. The costs of the appeal will have to be borne by the respondent. Although the costs order below is not being set aside the scale upon which those costs are to be awarded should abide the quantum of the judgment at the new trial. Judgment below set aside except as to costs. New trial ordered, limited to question of damages. Cost of the appellant to be borne by the respondent. Scale upon which cost below are to be awarded should abide the quantum of the judgment of the new trial. RYN Counsel for the Appellant: DB MCGOVERN Instructed by: GALLUZO GOLLOTTA ANDRIANO Counsel for the Respondent: L KING SC Instructed by: GM MEADOWS