New South Wales Court of Appeal CITATION : Curtiss v Osman [2004] NSWCA 435 HEARING DATE(S) : 18 October 2004 JUDGMENT DATE : 2 December 2004 JUDGMENT OF : Hodgson JA at 1; Bryson JA at 4; McClellan AJA at 5 DECISION : Appeal dismissed with costs CATCHWORDS : NEGLIGENCE: motor vehicle accident - whether trial judge erred in failing to find contributory negligence - findings of fact by a trial judge - whether sum awarded for damages by trial judge excessive - whether trial judge erred in accepting the conclusion of the respondent's doctors in relation to the severity of his injury - consideration of the admissibility of a doctor's opinion and the weight to be afforded to it when the doctor may not have a full history of the plaintiff LEGISLATION CITED : Motor Accidents Act 1988 (NSW) s 78A(6) Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED : Devries v Australian National Railways Commission (1993) 177 CLR 472 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 Ramsay v Watson (1961) 108 CLR 642 PARTIES : Anthony Curtiss (Appl) Ali Osman (Resp) FILE NUMBER(S) : CA 41120/03 COUNSEL : L King SC (Appl) D E Baran (Resp) SOLICITORS : Stewart Cuddy & Mockler (Appl) Kheir & Associates (Resp) LOWER COURT District Court JURISDICTION : LOWER COURT DC231/02 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41120/03 DC 231/02 HODGSON JA BRYSON JA McCLELLAN AJA THURSDAY 2 DECEMBER 2004 CURTISS v OSMAN Judgment 1 HODGSON JA: I agree with the orders proposed by McClellan AJA, and with his reasons. 2 The High Court in Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846 confirmed that it is a question of fact whether the facts on which an expert medical opinion is based are "sufficiently like" those proved to render the opinion of the expert of any value. 3 In the present case, particularly having regard to the evidence of Dr Ellis and Dr Hanna referred to by McClellan AJA, it was open to the trial judge to conclude that the facts on which Dr Maniam's opinion was based were "sufficiently like" those found by him to render Dr Maniam's opinion of value. 4 BRYSON JA: I agree with McClellan AJA. 5 McCLELLAN AJA: In the early evening of 6 September 1999 the respondent, a cement renderer who carried on business as the principal of a company called Fast & Top Rendering Services Pty Ltd, was involved in a motor vehicle accident. He was driving a table top truck on which he and his assistant, Mr Rani Mauklattati, had placed his tools and equipment, including a wheelbarrow which was lying upside down in alignment with the driver's side of the cabin of the truck. The truck was struck from behind by a motor vehicle driven by the appellant after the respondent's vehicle had come to a halt at the intersection of The Horsley Drive and Tangerine Street, Fairfield. 6 At the trial the respondent gave evidence that he had secured the wheelbarrow with ropes and illustrated with diagrams, how this had occurred. Although there was some disagreement with respect to the configuration of the ropes, Mr Mauklattati gave evidence which confirmed that the wheelbarrow had been secured with rope in a position where it touched the rear of the driver's part of the cabin. 7 The appellant gave evidence which contradicted the respondent. Although he agreed that the wheelbarrow was on the driver's side of the truck, he said that it was half way back along the vehicle and not secured. 8 There was also disagreement as to the manner in which the accident occurred. Although the appellant claimed that the respondent braked suddenly and that his brake lights did not work, the trial judge did not accept this evidence. Rather the trial judge concluded that the respondent was stopped when the appellant's vehicle collided with the rear of it. From the photographs which were tendered it would appear that the bull bars attached to the front of the appellant's vehicle hit the tray of the respondent's truck. There was a short pause following which the respondent's vehicle accelerated and collided with a tree. The trial judge concluded that the respondent was hit on the head by the wheelbarrow which caused him to lose control of the vehicle. It would seem probable that the bar which extends beyond the wheel of the barrow connected with the respondent's head. 9 At the trial the appellant submitted that the cause of the respondent's injury was his failure to secure the wheelbarrow, the injury occasioned by the collision with the tree being a separate injury and, in the alternative, that the respondent was guilty of contributory negligence by failing to secure the wheelbarrow. Both submissions were rejected by the trial judge. 10 The submission of the appellant in this appeal is that his Honour erred in failing to find contributory negligence. On this issue the appellant carries the onus of proof. 11 Although, as I have related, there were some inconsistencies between the evidence of the respondent and of his assistant, Mr Mauklattati, as to the precise means by which the wheelbarrow had been secured, the trial judge nevertheless accepted the respondent on this matter and rejected the appellant's evidence. 12 However, the appellant points to the fact that in relation to some matters the trial judge did not accept the respondent. In particular, his Honour did not accept his evidence as to the nature of his on-going disabilities and found that on some occasions he had misstated and exaggerated the severity of the accident. In particular, he had wrongly claimed at times that a large truck had impacted his vehicle, that he had suffered a significant loss of consciousness and that he had been admitted to hospital for longer than the hospital records indicated. It is submitted that if the trial judge did not accept the respondent's evidence on these matters his Honour should have rejected as evidence how the accident occurred. 13 It is further submitted that the respondent should have checked the load on his truck at regular intervals - the accident occurred some hours after it had been loaded - to ensure that it had not become displaced. However, this submission was not put at the trial and accordingly, in my opinion, cannot be considered in this appeal. In any event, once satisfied that the wheelbarrow had been adequately secured, I see no reason why periodic inspections would have been necessary. 14 The trial judge's reasons reveal a close analysis of the evidence. His Honour's findings of fact were substantially based upon an assessment of the credit of the various witnesses. His Honour was, of course, entitled to accept some parts of the respondent's evidence although rejecting other parts. Accordingly, His Honour was entitled to accept the respondent's account of securing the wheelbarrow although rejecting some parts of his evidence as to his injuries. His Honour specifically accepted the evidence of Mr Mauklattati as to the securing of the wheelbarrow, rejecting an assertion that he had colluded with the respondent. 15 The principles which must be applied by this Court when a challenge is made to a trial judge's finding of fact are well known: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. In the present case, his Honour's finding was open on the evidence and is not inconsistent with any other facts established in the proceedings. 16 In my opinion the appeal in relation to liability should be rejected. Quantum 17 The trial judge entered judgment in favour of the respondent in the sum of $470,790.50. This sum included an award for non-economic loss assessed at 30% of the most extreme case which, after applying the table in s 78A(6) of the Motor Accidents Act 1988 (NSW) becomes 23% of the maximum amount of $329,000 that may be awarded for non-economic loss. This becomes $75,500, rounded to the nearest $500 as required by the Act. 18 With respect to economic loss the trial judge found that the respondent's past economic loss and future earning capacity have been compromised by the accident by 30%, inclusive of any loss of superannuation. The trial judge adopted the weekly figure calculated by the respondent on the basis of his 1998/99 tax return, viz $1,148.30, making the figure $345 per week. Accordingly, a total of $74,865.00 was provided for past economic loss. The trial judge accepted that the plaintiff would work until the age of sixty-five years (a further 26 years) and, making an allowance of 15% for vicissitudes, awarded $225,421.27 for future economic loss. The past out-of-pocket expenses were agreed as $55,004.23 and his Honour made a buffer award of $40,000 for future treatment and out-of-pocket expenses. 19 The appellant submits that the sum awarded was excessive and that his Honour erred by accepting the conclusion of the respondent's doctors in relation to the severity of the injury he suffered in the accident. The evidence before the trial judge 20 The trial judge carried out a careful analysis of the evidence, including the medical evidence, tendered at the trial. His Honour identified the fact that the respondent had on occasions said that he awoke in hospital and left on the second day, whereas, the hospital records indicate that he was seen at 18.30 by the Emergency Department and was ready for departure at 23.30 the same night. The respondent said when he awoke in hospital he felt strange and confused. His head was "very heavy", he had lacerations and bleeding from the scalp, and had no sensation and numbness in the left hip. 21 The respondent complained of headaches and problems with his hip region the day after the accident. The headache was said to radiate to the neck and back causing dizziness which prevented him from standing up. He developed pain in the low back. He gave evidence that his general practitioner, Dr Hanna, made a house call and gave him injections and medication. 22 In the month or two after the accident the respondent continued to see his general practitioner and was sent for x-rays of the neck and lumbar spine and a CT scan of the skull. He was placed into the care of Dr V Maniam, a trauma orthopaedic surgeon. He was also referred to Mr V Herrera, a psychologist, and Dr J P Sheehy, a neurologist. In his evidence the respondent complained that his condition has become worse over the years since the accident, his headaches, neck and back have all worsened and when his low back pain is bad, it affects his legs. He also indicated that he has problems with his right wrist and has difficulties with sleep. 23 The respondent stated that he had attempted to return to his normal work duties but that after two weeks he could not continue working. He gave evidence that he stopped working after the second of two episodes, the first being a fall after a dizzy attack, although at the time he was not doing any physical work, and the second being head, neck and back pain whilst rendering a wall, as a result of which he had been taken to a doctor by one of his workers. 24 He said that he had made efforts to work on other occasions but these had not proved successful. The trial judge records that the respondent stated that being unable to work, he now spends his time being preoccupied with his pain and feels depressed because he cannot be a good father to his children. 25 The respondent said that before the accident he helped his wife around the house including cleaning, heavy work and the gardening although he employed someone to mow the lawn. Since the accident he does nothing inside or outside the house, although he does care for his own personal hygiene. When he is in a lot of pain, he cannot shave. He gave evidence that he cannot drive for a long period of time although, if he is not in pain, he can drive normally. He said he had only had one speeding fine since the accident, although his traffic record discloses four speeding infringements between January 2000 and September 2002. 26 There was evidence at the trial that the respondent suffered a motor vehicle accident in November 1997. He gave evidence that he suffered no injury from that accident and he had not seen a doctor or had medications prescribed for neck or back pain. 27 The notes of his general practitioner, Dr Hanna, were tendered at the trial. They indicated that on 19 June 1997, which was before the earlier accident, the respondent was complaining of low back pain with a query as to whether he had a disc lesion. Between January 1998 and the date of the accident, the subject of this case, the respondent consulted Dr Hanna on several occasions for neck problems, with at least one visit in which he reported low back pain. The respondent suggested that these visits were probably for pain related to his work and general health problems and not to the previous accident. 28 The trial judge noted that the respondent's treating orthopaedic specialist, Dr Maniam, was given a history by the respondent which in certain respects does not accord with the evidence. In particular, the respondent exaggerated the nature of the accident and also the extent of his disability. In a report dated 19 April 2001, Dr Maniam found: "At present, there seems to be a lack of motivation and loss of self esteem and these stem from the reactive anxiety depressive state, until these can be improved, I feel that Osman Ali may not be able to return to the workforce. Stemming from the injury there has been an affection on his enjoyment for the quality of life and also in pursuing his recreational sports. I informed him that his longevity will not be affected and in terms of premature retirement, I informed him, that with care and proper techniques that have been advised, he should be able to continue on the selected duties until retirement age. He is able to carry out his day to day activities without any help. He is also able to do his minor maintenance work around his home. … ." 29 Because of his psychological difficulties the respondent's general practitioner referred him to the Metropolitan Psychological Centre of Sydney. He was assessed on 15 November 1999 and was diagnosed by Mr Herrera as having "an Adjustment Disorder with mixed emotions of depression and anxiety." 30 In his report Mr Herrera, stated: "The emotional disturbance caused by the shock of the accident has not yet stabilised but it appears that the intensity of the symptoms are gradually decreasing. In the balance of probabilities, it is expected that if he accesses therapy, it will take four to six months for this condition to improve. The emotional disturbance caused by the consequence of the accident will depend on his physical progress through medical intervention. It is my opinion that as long as Mr Osman is suffering from pain and disability, his symptoms will persist." 31 A treatment program was recommended. 32 The respondent was also seen by a number of medical practitioners at the request of the appellant. Dr R Mellick, a consultant neurologist, reported on 16 December 2002: "The history he provided included no pattern of symptoms which raised the likelihood of a specific neurological cause. The pattern of the symptoms was characterised by a diffuse generalised distribution with and by a description of symptoms which did not conform to a likely organic aetiology. The findings on physical examination are in accord with the interpretation of the history, the physical examination revealing no abnormalities. … The clinical picture as it presents is one of a pattern of multiple chronic symptoms without any evidence that those symptoms arise as a result of an underlying physical disorder." 33 Dr J M Matheson, a consultant neurologist, also provided a report dated 26 August 2002, in which he said: "Mr Osman sustained a scalp laceration which has healed. He has a little bit of glass impaction and it would be a little bit tender. It is a minor disability. He has sustained no other disability, there is nothing wrong with his ears. There is nothing wrong with him neurologically. He has not sustained any brain damage. There has been no injury to his spine. His symptoms he is producing just seem to be invented symptoms and vary from report to report. He is clearly not a true witness of his symptoms. I saw no evidence here of any psychological disability and no reason why an accident like this should produce such. My impression was that Mr Osman was contriving symptoms for the purpose of gain. There is no disability in relation to this accident at this stage. He could be pursuing full time work if he chose to. He requires no further treatment." 34 He was also seen by Dr J Seymour, an ear, nose and throat specialist, who found in relation to reported earache that there was no otological condition but that it could be referred pain from his neck. Dr Seymour found in his report of 27 June 2002 that: "… the applicant is fit to resume his normal range of duties now, with the exception of any occupation which required climbing to heights, piloting aircraft, lying on his back for long periods, or any occupation which required quick and repetitive movements of his head." 35 The respondent was also seen by Dr J P Maguire, a consultant psychiatrist, who diagnosed an adjustment disorder with mixed emotional features. He concluded in his report of 15 November 2000 that: "I cannot diagnose a current psychiatric or psychological 'disorder' that would prevent [him] [sic] from working or leading a normal life. On that basis I cannot diagnose a 'permanent impairment' to his emotional state." 36 Mr G Haralambous, a clinical psychologist, believed that the respondent was exaggerating his problems. He expressed the opinion in his report dated 2 July 2001 that: "Mr Osman has not suffered any identifiable cerebral damage whatsoever and on objective psychological testing demonstrates, rather, a pattern of responses that appears more consistent with malingering than a genuine psychological or cognitive disorder." 37 Having analysed the medical evidence, the trial judge turned to his conclusions which he expressed as follows: "This does not mean, however, that the plaintiff has not significantly exaggerated his evidence as to his present and past condition and work capacity. In these respects the evidence shows that the plaintiff was an unreliable witness. All of the inconsistencies between his evidence and the objective facts related to these matters. For example, the plaintiff denied that he had ever seen a doctor prior to the accident for his neck and back, yet the clinical notes of Dr Hanna showed that he had for some time seen Dr Hanna for these matters. He stated that, in effect, he was unconscious until he woke up in hospital, whereas this was contrary to the ambulance and hospital reports, including the plaintiff's Glasgow Coma Scale readings, and his conversations with the ambulance officers. He exaggerated his condition both in relation to when he was in hospital and later: he stated that he had difficulty walking, including when he left hospital, yet the hospital notes state the contrary. He sought to paint the picture of a person afflicted with severe disabilities where the video evidence, though admittedly capturing only a brief time, showed a person able to move, walk, and perform normal activities in an apparently unrestricted manner, such that he was bound to concede in cross-examination that he 'was flying' on that occasion. He exaggerated the severity of the accident and his condition to most of the doctors he attended, including that his vehicle was hit by a semi-trailer, and that he was unconscious until 3.00am whereas he was discharged before that at 11.30 pm. There were significant contradictions between his complaints and the objective medical evidence. As conceded by the plaintiff in submissions, the plaintiff must have worked more than two weeks after his accident having regard to his tax returns, and his evidence was partly unreliable. However, having regard to the evidence as a whole, I am satisfied that this was due only because of an attempt to exaggerate his condition and work capacity. Consequently, though in these respects the plaintiff clearly exaggerated his evidence, which must therefore be regarded as unreliable, I accept his evidence relating to the manner in which the load on the utility was secured and the collision, which was supported by other evidence. The medical evidence supports the view that the accident did not cause any brain injury or vestibular or hearing impairments, and that the plaintiff's headaches and dizziness are non-specific and benign in origin. Similarly, the evidence of the plaintiff's emotional and psychological evidence is that the plaintiff suffered an adjustment disorder with mixed emotional features, which however does not, according to Dr Maguire, amount to a permanent impairment to his emotional state and would not prevent him from working or leading a normal life. With respect to the plaintiff's emotional condition, I prefer the views of Dr Maguire and Mr Haralambous, which are consistent with the plaintiff's behaviour, demeanour, and the evidence as a whole, rather than that of Mr Herrera whose opinion was not only inconsistent with the evidence as a whole but was based on subjective impressions including the plaintiff's self reporting. There is, however, evidence that the plaintiff has some on-going injury to the cervical and lumbar spine. In this respect I prefer the opinions of his treating doctors, Dr Hanna, and, in particular Dr Maniam, who found that the plaintiff suffered a musculo ligamentous strain to the cervical spine, with aggravation of underlying degenerative disease, and an intervertebral disc protrusion at L4/5 and a minor disc bridge at L5/S1. Though there is evidence of prior neck and back problems, the subject accident has materially contributed to these injuries, but, as Dr Maniam states, the reason for the plaintiff not returning to work stems mainly from the psychogenic element rather than orthopaedic injuries, and the plaintiff will be capable of returning to selected work, avoiding repetitive bending and heavy lifting, including cement rendering activity on a casual basis. The plaintiff, of course, suffered the laceration to the right parieto occipital region and soft tissue injuries to the left shoulder and a ligament strain to the left thumb." 38 It is apparent that although his Honour was sceptical about the respondent's reported emotional and psychological problems, preferring the views expressed in the reports of Dr Maguire and Mr Haralambous which were tendered by the respondent, rather than Mr Herrera's opinion, his Honour nevertheless found that the respondent had suffered ongoing injury to his cervical and lumbar spine as a result of the accident in 1999. Recognising that there was evidence of prior neck and back problems, his Honour was nevertheless satisfied that the accident had materially contributed to those injuries to the extent found by Dr Maniam. The appellant's submission in relation to quantum 39 The appellant submits that the trial judge's award of damages was excessive. Emphasis is placed on the fact that the trial judge accepted the opinions of doctors who had not been given an accurate account of the respondent's previous medical history, which included the history of back and neck pain revealed in the clinical notes of the respondent's general practitioner. 40 The appellant further submits that although his Honour found that the respondent was exaggerating his injuries, none of the doctors relied upon by the respondent record this possibility. Furthermore, none of the doctors were called and asked whether, having regard to the matters revealed in the general practitioner's clinical notes, their opinions were in any way modified. In these circumstances it is submitted that the opinions of the respondent's doctors could not be relied upon by the trial judge. 41 The appellant drew attention to the decisions of the High Court in Ramsay v Watson (1961) 108 CLR 642 and Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844. It is submitted that the law is that a trial judge cannot make a decision which is based upon the opinion of a doctor who did not have an accurate history of the patient as reflected in the evidence. In particular, it is submitted that Paric is authority for the proposition that, although in evidence, it would be an error for a trial judge to rely upon a doctor's opinion unless there is a real correspondence between the history of the patient and the history as understood by the doctor who gave the opinion. Because none of the respondent's doctors noted the full history of the respondent's back and neck pain and none of them seem to have regarded the respondent to be exaggerating, (although his Honour found this to be the case) it is submitted their opinions must be put aside and the matter determined by reference only to the appellant's medical reports. 42 In my opinion the appellant's submission does not in some respects appropriately reflect the principles identified by the High Court in the two decisions to which reference is made. 43 In Ramsay, the High Court was primarily concerned with the admissibility of statements made by a patient to an expert medical witness in which he or she relates the history of relevant events. The Court held that the statements are admissible in evidence if they comprise part of the factual material which the expert draws upon in forming his or her opinion. However, the hearsay material is not evidence of the facts related and, if challenged, must be proved. Furthermore, if the person who made the statements to the expert does not confirm them when giving evidence the expert's opinion, although in evidence, may be worthless and carry no weight. 44 Paric was concerned with the question of whether, having regard to the facts independently proved, a doctor's opinion which was based upon facts that do not accord entirely with the facts proved, could be utilised by the court in reaching its decision. The critical question was whether, having regard to the facts proved, it was open to the trial judge to rely upon the doctor's opinion. 45 In reasoning to a conclusion on that question the court said, referring to Ramsay, that "it is trite law that for an expert opinion to be of any value the facts upon which it is based must be proved by admissible evidence" (Paric at 846). 46 In the present case, no question of admissibility arose. This Court was informed that, in accordance with the common practice in personal injury matters in the District Court, all medical reports were tendered without objection. Furthermore, no request was made for any doctor to attend to be cross-examined. Accordingly, except to the extent revealed by any material in the reports themselves, the trial judge was entitled to assume that the opinion of the doctor was not challenged. 47 No doubt the practice followed in this case, and apparently in many others, has been adopted in the interests of the efficient disposition of trials and out of a concern that the medical profession should not be unreasonably inconvenienced. However, when a medical report has been accepted into evidence without objection and the author is not cross examined, the court is entitled to rely on it to support a conclusion which having regard to all of the evidence is reasonably open. 48 The trial judge carried out a detailed examination of the medical evidence. Although recognising problems with the reliability of the respondent's testimony and finding that he had a tendency to exaggerate, he was nevertheless satisfied that the respondent had suffered injury in the accident with ongoing consequences. His Honour also had evidence, in particular of Dr Max Ellis, of the consequences of the earlier accident. Dr Ellis reports that there was some neck pain which lasted a few days, but the respondent returned to work after three days and resumed his normal duties with no further pain or disability. The respondent saw his family doctor and, there being no back injury in this incident, "no x-rays were taken." 49 From this material and the material from the respondent's general practitioner, Dr Hanna, his Honour was entitled to conclude that although the respondent had been injured in 1997, the injury was not significant and the respondent recovered and was able to resume normal duties before the relevant accident. 50 Dr Ellis provided a further report on 4 June 2003. In that report, although the pre-existing soft tissue injury was referred to, Dr Ellis confirmed that the injury sustained by the respondent in the later accident was significant. 51 It may be that Dr Maniam did not have the respondent's full medical history explained to him, but he nevertheless found that the respondent was suffering from injuries which were ongoing. Dr Maniam's report having been admitted without objection and being unchallenged in cross-examination, the trial judge was entitled to use it to reach any conclusion which was reasonably available. The trial judge acknowledged that there was evidence of prior neck and back problems but, having regard to the evidence of Dr Hanna and Dr Ellis, was entitled to come to the conclusion that the respondent suffered the injuries in the accident which were identified by Dr Maniam. Accordingly, I am not persuaded that the conclusion which his Honour reached as to the extent of the respondent's injuries was other than appropriate. 52 For these reasons, in my opinion the appeal should be dismissed with costs. ********** Last Modified: 07/16/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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