MELO v NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and COLE JJA 6 December 1995, 6 December 1995 [1995] NSWCA 290 DAMAGES — no question of principle. Cole JA The appellant was involved in a motor vehicle accident on 17 September 1988. She sued for injuries suffered and liability was found in her favour. Spender AJ on 11 July 1995 awarded her damages of $26,298 comprising $25,900 for non-economic loss and $398 for out of pocket expenses being half the cost of treatment at the Sydney Pain Management Clinic. The $25,900 non-economic loss equates to 20% of the statutory maximum under s79 Motor Accidents Act. The appellant seeks a new trial. Six grounds of appeal were advanced by an amended notice of appeal. The first five relate to the trial judge's rejection of the appellant's credibility. This rejection was contended to be based upon the trial judge's finding of: (a) an alleged inconsistency between her complaints of agoraphobia and evidence that from time to time she had wandered out to Bondi Beach and spent the night lying on the beach; (b) an alleged inconsistency between evidence that from time to time the appellant had wandered onto to Bondi Beach and evidence "which she gave that she couldn't even walk"; (c) an alleged inconsistency between the evidence given by the appellant concerning the housework she was able to do and the history which she gave when admitted to St John of God Hospital (about) engaging in obsessive cleaning activities at home; (d) an alleged inconsistency between what the appellant said about limitation of her driving activities and a history given by her at the St John of God Hospital of driving fast on occasions; and (e) an alleged inconsistency between what she had told Dr Kenna on 6 January 1988, eight months before the accident, namely, that her marriage had recently failed and that there had been a marriage breakup, and what she had said in evidence, namely, that she and her husband were still living together before the accident. The sixth ground of appeal was abandoned. In my opinion none of the grounds of appeal can be sustained. The first five grounds of appeal argued relating to the credit of the appellant contend that it was unfair to the appellant to compare statements made, histories given or evidence given at various times. Each discrepancy relied upon by the trial judge was said to be "possibly explicable" but, there having been no "focus" on these aspects at the trial, the appellant had been deprived of the opportunity to adduce explanatory evidence which might have rendered the discrepancy explicable on a basis other than want of credit. In addition it was said in some instances there was no discrepancy. 2 UNREPORTED JUDGMENTS In mounting this attack on the judgment, the appellant has in my view taken the trial judge's findings out of context. The trial judge was addressing "salient features" of what he considered was established by the evidence. One issue to be addressed was whether the appellant exaggerated. The trial judge found that she had. Spender AJ said: "Tn my new there has been a conscious exaggeration by the plaintiff of her condition, and that specifically, the evidence given by her to the effect that she does little or nothing around the house, that she fears open spaces, and that she couldn't even walk is contradicted by the records of St John of God Hospital on the subject of her obsessive cleaning, and by Dr Ali's evidence about her going to Bondi Beach and sleeping on the beach. Her evidence about driving (almost nothing) does not square with what is recorded in the St John of God Hospital records. I find that she is able to work about the house and to do all normal household work, that she doest that work, that she is capable of going to open places without fear, and does so, and that she drives her car far more frequently and easily than she would have me believe.!" It is dear that, at the trial, there was a conflict of medical and factual evidence. As the trial judge recounted, the appellant had been involved in an earlier motor accident in 1983 which resulted in both physical trauma and a neurotic anxiety depressive reaction diagnosed as anxiety and depression in consequence of that accident. Her case was that she had significantly overcome both physical and psychological injuries resulting from that first accident. The second accident caused further physical trauma and reactivated or aggravated her anxiety and depression which continued to the date of trial and was likely to be permanent. The respondent's case was different. It was that from 1978, prior to the first accident, she had suffered from depression. Her depression had been aggravated by the 1983 accident. Since that time her depressive state had been further aggravated by a break up or separation from her husband, by injury to one of her children, by a serious illness suffered by her mother in Chile and by her isolation from other members of the Chilean community in Australia. It was the respondent's case that whatever physical or psychological aggravation had flowed from the 1988 accident had been resolved by the time of trial. Further the respondent contended that the account of ha disabilities in relation to cleaning work, agoraphobia, driving and the like was exaggerated. There was thus contest at the factual level regarding the extent of ha physical and emotional capacity. At the medical level the contest continued with Dr Maguire on behalf of the respondent expressing the view: "On the other hand, there could have been a temporary exacerbation or increase in her pre-existing chronic anxiety depressive state as a result of temporary increase in pain due to organic pathology resulting from that accident. Given the fact that Mrs Melo had been chronically depressed and anxious for five years prior to the accident and had been taking anxiolytic anti-depressant and analgesic medication, which she became dependent on at one point, it is probable that this clinical picture would have continued long term independent of the 1988 accident. This accident could have caused a temporary increase in depressive symptoms in line with any temporary increase in organically pathology but I believe her current emotional state is basically a prolongation of her pre-existing disorder. 1. Appeal Book, at 485P-Y. URJ MELO v NOMINAL DEFENDANT (Mahoney JA) 3 I am sure there a personality factors operating here together with personal stresses independent of the accident and I note the breakdown in the marriage and alienation from her children at one point as being probable contributors to her emotional difficulties.2" The opposing medical viewpoint was advanced by Dr Kenna and Dr Ali. Dr Kenna thought the 1988 accident aggravated her anxiety and depression noting that "it appears that she is a vulnerable personality who was unable to cope with the injuries sustained in the accidents and became anxious and depressed". Dr Kenna accepted the appellant's contentions of ha incapacity, for instance, to do housework. The trial judge preferred the evidence of Dr Maguire, rejecting those of Dr Kenna and Dr Ali. His Honour accepted that the appellant's family circumstances were significant in ha continuing anxiety state. He rejected the appellant, and ha sons who gave evidence on ha behalf, as witness of credit finding that the appellant exaggerated in the manner indicated in the passage I have quoted. It is undoubted that the question of the capacity of the appellant to do household chores was in issue3, that her capacity to drive and the fact of ha driving since the accident was in issue4, and that the history she had given of depression following a visit to ha family in Chile, showed the asserted depression as being unrelated to the accident, was in issueS. It is in my view dear that the appellant's credit was in issue. After cross-examination, counsel for the appellant chose not to re-examine®. In my opinion the trial judge's findings exhibit no unfairness to the appellant. It was a significant part of ha case that she suffered the physical and emotional disabilities complained of restricting ha lifestyle. It was necessary for the trial judge to reach a finding regarding acceptance or rejection of those allegations. In me opinion the first five grounds of appeal fail. Mahoney JA I agree with what has been said by Cole JA. In deference to Mr Gross' submissions, I shall add an observation of my own. The matter was dealt with upon the basis which appears at 487 of the appeal papers and it is proper that the Court should deal with the matter on that basis. By saying that I am not suggesting any other basis would have been more appropriate. Putting the matter in the very broadest of terms, the evidence was, I think, to the true effect that before the accident of 1988 the plaintiff suffered from considerable emotional and physical difficulties. The 1988 accident, to an extent, exacerbated those. At least that was the case that was brought forward. The problem facing the judge, as his Honour said, was the difficult problem of deciding whether, and to what extent, that exacerbation had occurred. I appreciate the criticisms which Mr Gross QC has directed to his Honour's reasoning to the conclusion that the plaintiff was not "a particularly credible or reliable witnesses," and that accordingly, he should qualify his acceptance of ha evidence and make the findings in relation to ha medical condition that he did. But, putting aside the reasons which the Judge gave, and reading the plaintiff's evidence as it stands in the appeal book and measuring it against other matters Appeal Book, at 313N-314D. Appeal Book, at 41 and following. Appeal Book, at 50. Appeal Book, at 55. Appeal Book, at 93C. AnNRwWN 4 UNREPORTED JUDGMENTS which she had told to the doctors or which may not be significantly in dispute, my conclusion, as on a re-hearing, would be that I would find ha not a person sufficiently credible and reliable that I would place reliance on her evidence to make findings of fact of the kind which subsume the submissions which Mr Gross has made on ha behalf. By reason simply of ha evidence as it appears in the appeal book itself I would not be satisfied to act upon the reliability of the evidence that she has given. In saying this, I do not depart from, or disagree within what Cole JA has said as to the findings of Spender AJ but, as I say, upon a re-hearing I myself would find ha evidence not such as would convince me. Generally upon this basis I would come to the conclusion that the assessment his Honour made was a proper one. I see no reason to differ from it. I agree with the orders Cole JA has proposed. Priestley JA I agree generally with what has been said by both Cole JA and Mahoney JJ. Mahoney JA The orders of the court are, therefore, that the appeal is dismissed with costs. COUNSEL: Appellant: BG Gross QC/BF Rowe Respondent: HM Di Suvero SOLICITORS: Appellant: GH Healey and Co Respondent: Crestani Harvey and Associates