Teunissen v Chung & Anor [2001] NSWCA 46

New South Wales Court of Appeal

CITATION : Teunissen v Chung & Anor [2001] NSWCA 46 FILE NUMBER(S) : CA 40543/99 HEARING DATE(S) : 16 February 2001 JUDGMENT DATE : 16 February 2001

Richard Alan Teunissen PARTIES : Anita Yuet Wa Chung Citibank Limited JUDGMENT OF : Powell JA at 31; Beazley JA at 1; Rolfe AJA at 32

LOWER COURT JURISDICTION : District Court LOWER COURT 3550/97 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: S Norton Respondent: G R Petty SC SOLICITORS : Appellant: Brydens Law Office Respondent: Curwood & Partners CATCHWORDS : Motor vehicle accident - Apprehension of bias - Credibility LEGISLATION CITED : District Court Rules 1973: Pt 33 r 8A Livesey v New South Wales Bar Association (1983) 151 CLR 288 CASES CITED: State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 160 ALR 588 Galea v Galea (1990) 19 NSWLR 263 DECISION : Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40543/99 DC 3550/97

POWELL JA BEAZLEY JA ROLFE AJA

Friday, 16 February 2001

Richard Alan TEUNISSEN v Anita Yuet Wa CHUNG & Anor

JUDGMENT

1 BEAZLEY JA: The appellant was injured in a motor vehicle accident on 11 August 1995. The accident happened in circumstances where the first respondent unexpectedly did a u-turn in front of the appellant's vehicle. Both vehicles were written off. Liability was admitted and the claim proceeded by way of damages only. It was heard in the District Court by Naughton DCJ in June 1999. 2 His Honour awarded the appellant total damages in the sum of $11,173.05. The appellant appeals against that award. The award of damages was based upon his Honour's acceptance that the appellant had suffered whiplash type injuries which lasted for a period of no longer than 9 months after the accident. His Honour rejected that the appellant had suffered any psychiatric illness following the accident, and in particular rejected the appellant's case that he suffered post-traumatic stress disorder and depression. 3 The appellant appeals on three principal grounds. First, that his Honour was biased towards the appellant and should have disqualified himself from hearing the matter. Secondly, on the ground that his Honour wrongly rejected the appellant's medical evidence and made his own determination in relation to the appellant's psychiatric claim. This diagnosis was said to be by reference to a book known as DSM 4, the manual for psychiatric diagnosis published by the American Psychiatric Association and commonly used in Australia for identifying psychiatric disorders. Thirdly, on the ground that his Honour's findings, particularly in relation to the credit of the appellant and his witnesses "were based on too fragile a base and there [was] no real support for his finding that the witnesses were unreliable". 4 Before dealing with each of these grounds of appeal it is necessary to refer to some further history in the matter. The appellant had been involved in a serious motor vehicle accident in 1985, when he was about 8 years old. In that accident he suffered a severe head injury which resulted in a left hemiparesis. His father was also seriously injured in that accident. Proceedings were commenced seeking damages in respect of the injuries the appellant suffered in that accident. Those proceedings were not settled until 1994. 5 Shortly prior to settlement, the appellant's solicitors filed an amended Statement of Particulars of Injuries and Disabilities as required under Pt 33 r 8A of the District Court Rules 1973 (NSW). In that statement, the appellant alleged the following continuing disabilities: "… (k) The [appellant] has brain dysfunction causing intellectual impairment; … (o) The [appellant] has residual weakness in the left side of the body and marked shaking of the left hand especially with use and in particular when eating; … (u) The [appellant] has a tendency to anti-social behaviour with accompanying disobedience, irritability, disruptiveness and has threatened suicide on a number of occasions; (v) The [appellant] continues to suffer from regular headaches especially with glare; … (x) The [appellant] suffers from impairment of memory and comprehension; … (z) The [appellant] has hyper-reflexia on the left side; (aa) The [appellant] no has a tendency to be secretive and an un-communicate, oppositional and defiant; (ab) The [appellant] is now irritable suffering sleep disturbance and exhibits rocking and head banging; (ac) The [appellant] suffers from alienation from his peer group and exhibits general anti-social type behaviour; … (ak) Continual dragging of the left leg; … (ap) Intermittent jerks involving both arms and legs associated with twitches of the muscles at times; … (au) Gross embarrassment at obvious physical and mental impairment; (av) Disturbed sleeping patterns; (aw) Anxiety; (ax) Depression; (ay) Loss of confidence and self esteem." 6 Up to date medical reports were also obtained in the two or three years prior to the settlement. The last such report was that of Dr Voss dated 25 days before the settlement. The complaints made to various doctors during the course of those medical attendances were reflected in the Pt 33 statement. They included complaints of problems the appellant was experiencing as at the date of consultation. 7 It is now convenient to go to the issues raised on the appeal.