HANNA v PETROVSKI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, CLARKE JA and POWELL JA 3 April 1996 [1996] NSWCA 241 DAMAGES — WHETHER AWARD INADEQUATE ON BASIS OF MEDICAL EVIDENCE — TRIAL JUDGE'S IMPRESSION AND TREATMENT OF PLAINTIFF — SIGNIFICANT FUNCTIONAL OVERLAY Clarke JA. This is an appeal by a plaintiff from a verdict of Judge McCredie in favour of the plaintiff in the sum of $10,224. The appellant plaintiff contends that the amount awarded is inadequate. As his counsel has said today, the medical evidence at its best, from the appellant's point of view, would support a greater verdict than his Honour's which allowed only $9,000 for general damages. The fundamental attack on his Honour's judgment is that his impression or his unfavourable impression of the appellant was unjustified and he failed to make an appropriate allowance for what was, according to the submission, a fairly significant functional overlay suffered by the appellant, and it is necessary in the light of the submissions to pay careful regard to his Honour's judgment. That commences with an examination of the issue on liability concerning the accident which happened on 1 September 1984. On that date the appellant was travelling as a passenger in a motor vehicle being driven west in Church Street Lidcombe. At the same time a vehicle travelling in the opposite direction lost its hubcap. This event caused the driver of the vehicle in which the appellant wasriding to swerve and hit the kerb and possibly a tree or pole. The judge's actual finding was that the vehicle hit, at least, the gutter. His Honour, having found in the appellant's favour, then set out the complaints made by the appellant which were drawn, no doubt, from the particulars of disabilities filed pursuant to part 12 rule 4A of The District Court Rules. It is unnecessary to recite again those complaints but I should point out that they include an injury to the neck, left shoulder and left arm and a head injury with associated problems in the right ear. There was of course issue between the parties as to whether the appellant suffered from any of those conditions and, if so, whether they were related to the accident. The trial judge observed at the outset that the medical reports noted a very substantial functional element in the presentation of the appellant and his symptoms right from the start, and his Honour expressly said that, in his view, there were no reliable objective signs to support the appellant's claims. His Honour, as it seems to me, accepted the evidence of two medical practitioners being doctors Howe and Mendelsohn, and his Honour noted that the appellant was referred to Dr Howe in October of 1984 and that that doctor continued to see the appellant on a number of occasions thereafter. His Honour also noted that Dr Howe observed that the appellant had degenerative arthritis in his neck, which was not caused by the accident, and that the actual neck injury was probably a hypolateral flexion injury to the neck which one would expect to 2 UNREPORTED JUDGMENTS cause symptoms of neck pain for several months. His Honour noted the precise claims made by the appellant of injury at the time of the accident and in particular an injury in the vicinity of the right ear, and found some difficulty in finding a consistency between those complaints and the notes of the examination at Parramatta Hospital on the day of the accident. According to the notes of thathospital, a clinical examination of the appellant was unremarkable apart from muscle tenderness over the left side of his neck and a diagnosis of soft tissue injury was made. There was no reference to any treatment being required in respect of bleeding from the head, although his Honour accepted that he might have had minor bleeding from the right side of his head. His Honour then dealt with a claim by the appellant that he had suffered from an injury to his right ear in the accident which had led to continuing sympotomology which included loss of hearing and tinnitus. Upon analysis of the claim and the evidence in respect of it, his Honour was not satisfied that any ear problems had been shown to be causally related to the car accident. Although the notice of appeal challenges that conclusion, it has been properly conceded by counsel for the appellant at the hearing that that finding is not open to challenge in any real sense. His Honour then considered the evidence relating to the appellant's neck and his complaints of pain in the arm and shoulder, and his Honour concluded that the better view of the evidence, particularly the evidence of doctors Howe and Mendelsohn, was that there had been a comparatively short term aggravation of an underlying arthritic condition in a person who was about 44 at the time of the accident and 51 at the date of trial. His Honour, it is true, did not expressly say that he thought that the appellant had been telling untruths but he did say that he regarded the appellant's evidence as containing a gross overstatement of problems, and that there had been a lack of consistency in the history he gave to various doctors. His Honour also made a reference to a matter which did not help the credit of the appellant. These statements all make it clear in my mind, that his Honour was not disposed to accept the whole of the evidence given by the appellant andthought that there needed, at the very least, to be a significant discounting of the evidence he had given. Because his Honour felt that there was only a short term aggravation of an underlying neck pathology he allowed a sum which would, in my opinion, properly reflect such a result of the accident. Before proceeding to consider the specific complaints raised, I should refer to other evidence given by Dr Howe and the evidence of Dr Mendelsohn. The former in his report of 21 November 1985 concluded his report with these words: 'Ordinarily one would expect neck pain to settle after an injury such as he describes over a period of several months to perhaps a year at the most. However, I would anticipate that he will continue to complain of disabling symptoms for quite some time.' Again in October 1987, he said, 'Although symptomatically he was continuing to complain bitterly of ongoing and increasing symptoms, objectively he was, if anything, improved.' And in his final report, he expressed the view, 'That much of the changes which were occurring were related to the natural history of the appellant's degenerative spondylosis rather than to the results of his accident.' Dr Mendelsohn's evidence was consistent with that given by Dr Howe in his report of 5 December 1985. He expressed the view that there had been an aggravation of an underlying cervical spondylosis and continued that he felt that URJ HANNA v PETROVSKI (Clarke JA) 3 it was fair to say that the aggravation was likely to be present for up to 18 months after the accident but that any residual problems after that would be due to the underlying degeneration. Reference to that evidence, in the light of his Honour's reservations about the credibility of the appellant, provides, as it seems to me, overwhelming support for the conclusion which his Honour reached. Counsel for the appellant who did the best he could with difficult material was correct to say that the medical evidence looked at most favourably from the appellant's point of view, may have supported a greater verdict, but that does not lead to success in an appeal where a trial judge bases a finding on medical evidence and a view on the credibility of an injured plaintiff. It is not to the point to say, well if other evidence had been accepted a bigger verdict would have been entered. Unless it can be shown that his Honour erred in accepting the evidence of Dr Howe and Dr Mendelsohn and in forming the view which he undoubtedly formed in respect of the credibility of the appellant, it is irrelevant to talk of another view of the medical evidence. The second ground of complaint, or more accurately, the third, was that the judge formed the wrong impression of the appellant and his credibility. It is unnecessary to recite the series of cases which limit the power of this court to reverse a conclusion of a trial judge, based as this judgment was, in large part upon an assessment of the credibility of a witness. It is sufficient to say that a court is empowered to reverse such a decision where the acceptance of the evidence of the witness is either inconsistent with incontrovertible evidence or involves an acceptance of evidence which is glaringly improbable. It is sufficient for me to say in this case that that very strict test has not been met. There is no material which could be described both as incontrovertible and as inconsistent with the view formed by his Honour. Nor could it be said that his Honour's finding was glaringly improbable. Furthermore, nothing in the transcript supports a submission, which was more hinted at than articulated, to the effect that the judge had not been entirely fair in his treatment of the appellant. I should add in that respect that because I gleaned that that submission was to be made, I read the whole of the evidence of the appellant between pages 9and 35 of the transcript and I could see no indication that the judge was other than perfectly courteous and helpful during the course of the appellant's evidence. The second ground of complaint is probably the one upon which most reliance was placed, and that was that his Honour having found that there was a significant functional element, failed to compensate the appellant in respect of that functional condition which was described by counsel for the appellant as reflecting real suffering of the appellant. There are, however, a number of difficulties with the submission. The first is that in the particulars to which I earlier referred, no mention was made of functional overlay. There simply was no claim made for compensation in respect of such a condition. Nor as I read the appeal papers, was the issue whether the appellant should be compensated for a functional overlay litigated and it appears from his Honour's judgment that he certainly did not understand that to be the situation. If the claim was not raised at trial, and I do not think it was, it is too late now for the appellant to raise it. The second difficulty with the submission is that the phrase 'functional overlay' can be taken to mean a number of things ranging from a genuine medical condition which causes real pain and suffering to a case of malingering. In this case, probably because there had been no claim made in respect to functional 4 UNREPORTED JUDGMENTS overlay, neither the doctors nor his Honour categorised it either as reflecting a genuine condition or as reflecting something else. To the extent that one can gain assistance from the medical reports and what was said by his Honour, there is at least some room for the view that, to an extent, the phrase reflected or could be thought to reflect an element of swinging the lead by the appellant. For instance when his Honour said that there was a grossoverstatement of problems by the appellant, he was, on my understanding, indicating that to some extent at least, the functional overlay led to deliberate overstatement. The third difficulty with the submission is that it is not clear whether the condition related to the aggravation resulting from the accident or from the underlying pathology. In all the circumstances it is, in my opinion, not open to this court to set aside the judgment and increase the award of damages in order to accommodate a genuine claim of a functional overlay. The various challenges to the judgment have failed, and in my opinion, the appeal should be dismissed with costs. Priestley JA. I agree with Mr Justice Clarke. Powell JA. I also agree. Priestley JA. The order of the court therefore is that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: P GRAINGER Solicitors for the appellant: WATSON STAFFORD WILMOT KLIMT: Fairfield Counsel for the respondent: J MATER Solicitors for the respondent: G M MEADOWS