SHAW v SIMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHELLER and BEAZLEY JJA 16 November 1998, 16 November 1998 [1998] NSWCA 209 Damages — motor vehicle accident — whether pre-existing psychiatric condition aggravated by accident — failure to give sufficient reasons in judgment — improper rejection of expert opinion — new trial as to damages ordered Mason P This is an application for leave to appeal in which the parties have argued the matter as on an appeal. I will describe it as an appeal. The claimant was injured in two motor vehicle accidents. In each case he was struck by a car while riding his motor cycle. The first collision occurred on 2 July 1992 at Ultimo and involved a car driven by Mr Lebas. The second collision occurred on 8 August 1994 at Bondi and involved a car driven by the opponent Ms Simpson. Two actions were heard together in the District Court before Judge Downs QC. As regards the first accident there was a verdict for the defendant with costs. The claimant's case, which was that he executed a right hand turn across a line of traffic in accordance with a green turning arrow, was rejected. It was found to be inconsistent in some respects with the version of the accident given by the claimant when in hospital following the accident. The judge preferred the evidence of Mr Lebas who said that it was he who had the green light in his favour. Other witnesses to the accident gave evidence. The verdict in this first action is not challenged. It is relevant at this stage to observe that the claimant became much preoccupied with the legal consequences of the first accident. He had been charged and convicted in the Local Court of an offence relating to that accident. He appealed to the District Court. The charges were dropped by the police when a witness was found by the claimant. Mr Lebas also prosecuted civil proceedings in the Local Court with respect to the damage to his vehicle. These went to arbitration and later to trial. The upshot was a verdict in Mr Lebas' favour in the sum of $7,500 plus costs. In the second action liability was not in issue. The claimant had only recently recovered his previously damaged motor bike. He was riding it in Fletcher Street, Bondi when a vehicle on his left failed to give way and collided with the left side of the bike. He was thrown onto the roof of the vehicle and became entangled in the roof rack. The claimant was taken to Sydney Hospital by ambulance, x-rayed and allowed to leave. He was bedridden for a period and on crutches for a period. The injuries suffered were a sore left leg, an abrasion to his ankle and perhaps a clipped tooth. The injuries had become fully healed by early December 1994 at the latest. The trial judge allowed five weeks loss of earnings and other minor medical expenses in entering a verdict for the plaintiff in the sum of $1,210. Because the sum fell below the threshold stipulated in s39A of the District Court Act there was no order as to costs. The principal matter litigated at trial with reference to the second action and the only matter litigated in this appeal is the question whether the second accident aggravated the claimant's pre-existing psychiatric condition stemming from the 2 UNREPORTED JUDGMENTS first accident. Downs DCJ was not satisfied that the claimant suffered "any significant psychological injury" in the second accident. The language used and the context indicates that he was addressing the claim for non-economic loss and the threshold imposed by s79 of the Motor Accidents) Act. His Honour did not deal expressly with the claim for continuing economic loss. Downs DCJ accepted that the claimant suffered from a psychiatric condition stemming from the first accident. At least implicitly, his Honour accepted the report of Dr Canaris, a psychiatrist, who saw the claimant on 24 June 1994, ie about two years after the first accident and about one and half months before the second accident. Dr Canaris took a history of the accident and the injuries perceived by the claimant as stemming from it. This included a history of constant preoccupation with the accident and extensive economic and emotional disruption in consequence of the accident and the legal processes that followed it. The summary and conclusions in the doctor's report were: Mr Lance Shaw is a 37 year old married man who was injured in a motor bike accident in 1992 fracturing his pelvis following which he was hospitalised for a week. He recalls his hospitalisation as a painful and distressing experience. Although he says he is still in pain, his current problems are in the main psychological. From his account, it is clear that he is currently suffering from Post-traumatic Stress Disorder (PTSD). This condition is by definition attributable to his accident and in his case comprises recurrent anxiety ridden reliving of the accident in the form of dreams and "flashbacks". Although PTSD usually resolves within a few months of the accident, it not uncommonly persists and if present for two years or more may take on a chronic and unremitting course. This is more likely to happen when other psychological or psychiatric factors complicate the picture. In Mr Shaw's case, there is strong evidence of a moderately severe depression (Major Depression) coupled with considerable unresolved anger towards the driver of the other vehicle and the police. His anger is eminently understandable in the setting of a personality very strongly committed to justice confronted by an apparent attempt to shift the blame (and a $12,000 bill) on to him. Individuals with predominantly obsessional personality traits like Mr Shaw find such situations especially distressing. Because it is difficult for them to express their anger constructively, they frequently turn their anger inward, as it were, precipitating depression. The onset of depression may in turn exacerbate concurrent psychiatric illness such as PTSD. This is particularly apparent in Mr Shaw whose anger prompts him to ruminate constantly over the accident and its sequelae. In the process, he re-experiences the original trauma and perpetuates his PTSD. Mr Shaw needs to see a psychiatrist. Were he my patient, I would probably treat him with antidepressants in therapeutic doses coupled with psychotherapy aimed at helping him resolve some of his anger and regain a sense of control over his post-traumatic anxiety. It is difficult to predict the duration and hence the costs of such treatment as this can be extremely variable. I would suggest, however, that provision be made for, say, up to 20 sessions with a psychiatrist over a twelve month period each session costing in the vicinity of $170. Dr Canaris next saw the claimant on 10 January 1996. He was given a history of the second accident and of what he described in his report as a "profound deterioration since the second accident". Details of that history are recorded. They include constant pain, depression, withdrawal, loss of self confidence, sleeping loss, reduction in sex drive. The report continues: URJ SHAW v SIMPSON (Mason P) 3 Lasked whether he could distinguish between the effects of the first and second accident he replied that whereas the first accident carried with it the hopes of compensation and in effect an "apology" the second accident was very much "the last straw". He had hoped that after the first accident to set himself up in a business where upon "it would be alright". Instead, he lost all hope after the second incident. Interestingly, the dreams and flashbacks which characterised his reaction after the first accident have now subsided. In their place, he says, "the depression has taken over". He no longer has a fixed place of residence. He stays with people but "they get tired of me because I just lie around". The outstanding feature of his mental state examination was the severity of his depression. He looked very sad and morose and had lost a great deal of weight since I had last seen him. He looked dishevelled and unkempt. He cried as he said "T can't bear the thought of not seeing my daughter". Conclusions Mr Lance Shaw is presently suffering from severe major depression and needs to be treated on an urgent basis. I have spoken to him at some lengths about the need to obtain psychiatric treatment. He will need to see a psychiatrist and to start on antidepressant medication. If he condition deteriorates any further, he will be at considerable risk be it from self harm or from inadequate nutrition and self care. His current prognosis is substantially worse given the disintegration of his social network and the chronicity of his problems. I think his deterioration is attributable to the second accident. He was already substantially impaired psychologically following the first accident and all this seems clearly to be the proverbial last straw. Although numerical estimates are somewhat meaningless, I would estimate the contribution of each accident as approximately 50% apiece. Had he not had the 2nd accident, he would probably have improved gradually or at least not deteriorated to the profound extent currently apparent. Dr Canaris saw the claimant again in April 1997. His report concludes: 'Your client remains an intensely angry man whose depression and post traumatic stress disorder have been modified somewhat by the introduction of antidepressant medication. I think starting him on Prozac was a very appropriate move on the part of his doctor and my only suggestion at this point would be that it might be worthwhile increasing the dose. This man's ongoing involvement in litigation has become for him as much a source of trauma as the original accident and its sequelae. Although I think he is in principle able to participate in the trial, the possibility that he might decompensate when the matter actually comes to Court is quite real. There would be a considerable merit, therefore, if some kind of equitable settlement could be negotiated so as to avoid the psychological risks inherent in a Court appearance. The fact that he feels a little more "freedom of movement" as he puts it since started on the antidepressants tends to confirm the hypothesis that psychological factors contribute significantly to his physical symptoms. His symptoms are nonetheless all too real and inextricably linked to the original accident and its sequelae. 4 UNREPORTED JUDGMENTS He remains a substantially damaged man whose quality of life will be permanently impaired by his physical and psychological problems. Whether he will recover to the point of being meaningfully employable on the open market is Open to question. Dr Canaris gave evidence. The judgment records that he adhered to his opinion. However, his Honour added that Dr Canaris had conceded that in coming to his conclusion he accepted the history he'd been given by the plaintiff, and that his conditions had profoundly deteriorated based upon what the plaintiff told him following the second accident, as well as his physical appearance. His Honour also appears to have accepted at least so much of the evidence of Dr Shand, psychiatrist, as related to psychiatric illness stemming from the first accident. Dr Shand saw the claimant on 21 February 1997 at the request of the solicitors for Mr Lebas. He took a history of the two accidents and of the claimant's perceived injuries and disorders stemming from them. His written opinion included the following: From the history obtained from the patient, he suffered injuries comprising fracture of the pelvis and to neck and back from the motor vehicle accident on 2/7/92. From that he described grinding pain in the region of the right hip. The description suggested that he could have become depressed, particularly because of the breakdown of his plans to establish an indoor market in Paddington, attributed to the accident and its effects upon his life. I do not know when the second accident occurred. He said that he suffered injuries to the right forearm and right knee with aggravation of his previous pains from the first accident. He has been under the care of his GP and Prozac has improved his depression in the last six months. He has been hard or impossible to live with and as a result his wife left with their 2 year old daughter in June 1996. He said his behaviour had been a lot worse after the second accident. During the consultation he presented as a very angry, resentful, frustrated, disgruntled and disillusioned man. He gave a description of himself before the two accidents as a particularly talented, attractive man whose future career would virtually know no limits. He related that, as a result of the two accidents, the whole of his life has collapsed around him and he is now a person of no fixed abode with large debts incurred by the loss of a civil action in court with respect to the first accident and his inability to obtain any financial justice with respect to the second accident. On many occasions he referred to the injustice of the legal system which he considers has ripped him off through the Police and the judiciary. Whether or not this reflects a paranoid attitude, or reality, I cannot say. He clearly has no doubt of this in his mind. He presented as a very poorly dressed, dirty, foul smelling man of unkempt appearance. I was able to gain what would be described as minimal co-operation only by agreeing that he could smoke which is against the rules of the building. This calmed him down a bit but left cigarette ash droppings around his chair. The diagnosis would appear to be an Adjustment Disorder with Depressed Mood, under treatment with Prozac. The history did not suggest severe anxiety but he remains more or less totally preoccupied with what has happened to him since the accidents. I have only the history from the patient about the time of onset of this disorder. I cannot vouch for the history that he did not have a personality disorder prior to the accidents. His disorder appears to incapacitate his capacity for work. This appears to be attributable to the two accidents. He is in need of medical and psychiatric treatments and is allegedly taking Prozac with some benefit. URJ SHAW v SIMPSON (Mason P) 5 Prognosis for further improvement of his current mental state appears uncertain. From his behaviour and presentation during consultation he is certainly unemployable. Due to his lack of co-operation, I did not have the opportunity to ask questions about any possible diagnosis of Post-Traumatic Stress Disorder, but the history obtained did not suggest that. I note reports from Dr Revai dated 15 December 1994 and 1 February 1995, which include description of behaviour of the patient and his wife and the reference to the patient being "paranoid". This compares with my assessment of him, but he was not overtly paranoid about me. Opinion. From the accumulated information, it would appear that this patient has become increasingly paranoid and obsessively preoccupied with the perceived effects upon his life of the two accidents and associated injustices, including large accumulated debts. Despite some benefit from treatment with Prozac, his prognosis for recovery from his psychiatric disorder appears gloomy. Dr Shand was not required to give evidence at the trial. There was also strongly corroborating evidence about the psychiatric impact of the first accident in reports from Drs Dyball and Revai. It can be seen that each of the two psychiatrists, Drs Canaris and Shand, gave evidence supporting the claimant's case that the second accident caused the deterioration of an already fragile psychological condition. If accepted, this evidence would have led to an award of substantial damages against the opponent: see Watts v Rake (1960) 108 CLR 158. These would have included a component for non-economic loss calculated in accordance with the Motor Accidents Act. It may also have included a component for economic loss. The trial judge accepted that the claimant's net earnings were in the order of $120 per week prior to the 1992 accident. If it were the fact, as some of the evidence indicates, that 50 per cent of the post 1994 condition was attributable to the 1994 accident and if the evidence of the psychiatrists to the effect that there was real doubt that the claimant was capable of returning to gainful employment were accepted then there would be a substantial award on this basis also. Using the word substantial I am not suggesting any size of the sum. One criticism of the judgment below which it is not ultimately necessary to address is the fact that his Honour did not deal with the claim for economic loss stemming from the second injury in the light of his conclusion which I infer to be to the effect that the claimant suffered some, albeit insignificant, psychiatric injury in the second accident. The principal attack on the judgment below relates to the way in which his Honour rejected the evidence of the two psychiatrists and his failure to discuss the evidence of Mr Spratt who was a friend and accountant of the claimant and who gave evidence of his observation of the claimant at critical periods of time. The learned trial judge formed the view that the claimant could not be relied upon as a reliable witness. He gave detailed reasons at p13-p17 of the judgment. Some of these turn upon his Honour's assessment of the claimant as a witness, and to that extent the claimant faces the well known difficulties involving such a decision. It is however pertinent to observe that the specific reasons are cited by his Honour as providing comfort in coming to a conclusion previously expressed in the following terms. In these circumstances it is clear that his psychological condition has been the same since his first accident. Therefore, the histories that Dr Canaris and Dr Shand relied upon to express their opinion were wrong, and cannot therefore be relied upon. 6 UNREPORTED JUDGMENTS It was common ground in the appeal that the reference to "these circumstances" is a reference to the immediately preceding paragraph in the judgment which reads: In evidence the plaintiff alleged that for the past five years, that is since the 1992 accident, he had spent all his time reading transcript of evidence of proceedings which followed the first accident, making notes concerning the unjust treatment which he alleged he received, and preparing and refining questions to ask Mr Lebas in cross-examination. He consistently refined these notes. This description of his activities falls far short of a profound deterioration following the second accident. When not doing this during those years, he said he just laid down. In my view the reasoning exposed in these two critical paragraphs and some of the supplementary reasons in the following pages of the judgment indicate that there must be a new trial. The trial judge was entitled to use his analysis of the evidence referrable to the first accident and his observation of the claimant in the witness box to ground an adverse view as to the claimant's unreliability generally, including his unreliability as the giver of a medical history. But it did not necessarily follow that he was obliged to dismiss the central plank of the claimant's case referrable to the second accident. Judges frequently remind themselves and juries that the mere fact that a witness is rejected on one aspect of his or her evidence does not mean that he or she should be rejected entirely. In making these general remarks I am not suggesting that Downs DCJ fell into any error in this regard. A particular difficulty facing the trial judge was the assessment of the credibility of a medical history given by a witness who by all accounts was eccentric in manner and habits. Moreover, it was common ground and accepted by his Honour that the claimant suffered severe psychiatric injury in consequence of the first accident. The very nature of that injury affected the claimant's reliability as a history provider because the claimant's obsessiveness bordering on paranoia related to the processes of justice themselves. By general disposition, heightened by the psychological impact of the first accident, the appellant was suspicious, non-cooperative and liable to fly off the handle into rage or apparent fantasy if pressed hard by doctors or lawyers intent on examining him. Against this background, the search for so called independent or objective material became even more critical than in the normal type of personal injury case; and there was in my view a correspondingly heightened need to disclose essential reasoning processes touching the ultimate persuasiveness of the witnesses who attested to the worsening of the appellant's condition following and in consequence of the second accident. The legal principles are not in issue: see generally Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 and Beale v Government Insurance Office (NSW) (1997) 25 MVR 373. It is beyond challenge that the trial judge was entitled to find that the appellant suffered only minor physical injuries in the second accident. But there was nothing about the second accident that made it inherently unlikely to have been a contributing factor towards the deterioration of the appellant's precarious and seriously damaged psychiatric condition. Dr Canaris gave express evidence on this point, see transcript p247 and p248. The claimant had been preoccupied to the level of paranoia with the legal consequences of the first accident. Dr Canaris and Dr Shand attested to this. So too did Mr Spratt. See also the claimant's evidence at transcript p215. URJ SHAW v SIMPSON (Mason P) 7 I have already set out the paragraph commencing "In these circumstances" which contains the core of his Honour's reasons for not accepting the evidence of the two psychiatrists. There are in my view two reasons why that paragraph and the one which precedes it caused me to have serious misgivings about the ultimate decision. First, the evidence to which his Honour refers is misstated because at transcript p215 the claimant did not say he had spent all of his time involved in the sequelae of the 1992 accident. Secondly, the evidence is so obviously an exaggeration from a witness of doubtful credibility, being an exaggeration lying at the core of his obsessive psychiatric disorder, that it was an insufficient basis upon which to pin the rejection of the two experienced doctors. After all, there was obviously credible evidence from the claimant and Mr Spratt about the claimant attending to other matters however dysfunctionally. This leads to the evidence of Mr Spratt. He was a friend and accountant of the claimant who had had social and business dealings with him prior to August 1991 and after November 1993. Relevant to the present appeal, he attested to the claimant showing some signs of mental recovery prior to the second accident and to a marked mental deterioration following the second accident. His capacity to express an expert view was challenged in cross-examination, but, he was not seriously challenged in his observation of the claimant. What is, however critical in my view is that he was a vital witness who corroborated the claimant's case in relation to the impact of the second accident. He also corroborated the histories upon which the two doctors based their respective opinions. Unfortunately, the judgment contains not a word about Mr Spratt's evidence. The opponent submitted that the trial judge impliedly rejected Mr Spratt. That may be so, but in my view fairness meant that the claimant was entitled to have the reasons for doing so adverted to in the judgment. I return to the reasons stated by the trial judge for rejecting the evidence of the two doctors, especially Dr Canaris. It is true that a medical opinion may only be as good as the history upon which it is based. But no one suggests in this case that the opinions of the two doctors were to be rejected in their entirety. After all, the opponent embraces the opinions of the psychiatrists to the extent that they attribute severe psychiatric injury to the first accident. In any event it was not, with due respect to his Honour, correct to state that Dr Canaris was basing his opinion solely upon the history he had been given. The doctor rejected this. He was firm in his evidence at transcript p243, p246, p249 and p250 that he detected a marked deterioration in the claimant's condition between the first and second consultations; and that this was based in part upon his clinical experience and his observation of how the claimant presented. Given that this was within the very area of the doctor's expertise I think that this matter should have been addressed before the doctor's evidence was effectively rejected on the ground that it was. One other matter in the judgment causes me some disquiet. It is the reasoning disclosed on p15 of the judgment in relation to the breakdown of the claimant's marriage and the inferences to be drawn from it. His Honour rejected the case that the claimant's disabilities stemming from the first or both of the accidents contributed to the breakdown of the claimant's marriage. On my reading of the evidence it is clear that the claimant was suffering severe and untreated depression over a period of years. His evidence, supported by that of Mr Spratt and of the two psychiatrists, was that the accident induced psychiatric condition contributed to the failure of the marriage in 1996. I do not consider that that evidence has been addressed adequately at p15 of the judgment. 8 UNREPORTED JUDGMENTS I mention one other matter which strikes me as problematic although, standing alone, it would not justify interference with the judgment below. His Honour took into account the fact that the claimant did not actually receive psychiatric treatment beyond embarking upon a course of Prozac from 1996 onwards: see judgment at p12 and p15. It is however clear that the need for such treatment was identified by Dr Canaris from as early as his first examination of the claimant. The fact that the treatment was not availed of may possibly go to an issue of mitigation (although we were told that no such issue had been fought at trial) but it does not negate the psychiatric illness. If anything, it corroborates it. I propose the following orders. Upon the undertaking of the claimant to file the notice of appeal and pay the appropriate fee, grant leave to appeal; appeal allowed; set aside the judgment assessing damages in the proceedings between the claimant and Pamela Simpson; order that there be a new trial limited as to damages in that action; order the respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified; order that the costs of the first trial be at the discretion of the judge who determines the second trial. Sheller JA Yes, I agree. Beazley JA I agree. Mason P Those are the orders of the Court. Upon the undertaking of the claimant to file the notice of appeal and pay the appropriate fee, grant leave to appeal; appeal allowed; set aside the judgment assessing damages in the proceedings between the claimant and Pamela Simpson; order that there be a new trial limited as to damages in that action; order the respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified; order that the costs of the first trial be at the discretion of the judge who determines the second trial.