Bailey v Moscardo

[1995] QCA 408

IN THE COURT OF APPEAL	[1995] QCA 408
SUPREME COURT OF QUEENSLAND

Appeal No. 190 of 1994

Brisbane

[Bailey v. Moscardo]

BETWEEN:

MARK WILLIAM BAILEY

(Plaintiff) Appellant

AND:

MARGARET THERESE MOSCARDO

(Defendant) Respondent

Davies J.A.
Moynihan J.

Fryberg J.

Judgment delivered 01/09/1995

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	TORT - personal injury - whether causal relationship between respondent's negligence and the appellant's condition existed - quantification of damages for pain and suffering - Trial Judge's rejection of the plaintiff's (appellant's) contention that his psychiatric condition was a result of the respondent's negligence - whether Trial Judge erred in his application of psychiatric evidence given at trial
Counsel:	Appellant conducted his own case Mr J. Baulch for the respondent
Solicitors:	O'Shea & Dyer for the respondent
Hearing date:	11 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 190 of 1994
Brisbane
Before Davies J.A.

Moynihan J.

Fryberg J.

[Bailey v. Moscardo]

BETWEEN:

MARK WILLIAM BAILEY

(Plaintiff) Appellant

AND:

MARGARET THERESE MOSCARDO

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 01/09/1995

The appellant was in a motorcycle accident on 17 March, 1989. He sued the respondent for damages for the consequent injury. The trial judge concluded that the injury he suffered as a consequence of the respondent's negligence was confined to pain and suffering from abrasions which he assessed at $2,500. The trial judge rejected the appellant's claim for special damages and reduced the award of general damages by 30% to reflect his finding of contribution against the appellant.

The outcome reflects the trial judge's rejection of that element of the appellant's case which contended that a serious and disabling psychiatric condition from which the trial judge concluded he suffered was caused by the respondent's negligence.

The appellant's case on appeal as revealed from the notice of appeal and the outline of argument was in essence that the trial judge had erred in accepting and acting on the evidence of Dr Richards, a psychiatrist. This was on the basis that a particular passage in Dr Richards' evidence was referable to the appellant specifically as distinct from being a general comment concerning a class of which the appellant was a member. It was in effect contended that, but for this error, the trial judge should have found that at least part of the appellant's current symptoms were caused by the respondent's negligence.

The notice of appeal and the outline of argument were prepared and lodged by the solicitors who had instructed the counsel who represented the appellant at the trial. The appellant appeared on his own behalf at the hearing of the appeal. He raised a number of considerations to which it will be subsequently necessary to turn. In the meantime, it is necessary to say something more of the trial and its outcome.

It is apparent that there was much controversy at the trial concerning a number of issues including, relevantly for present purposes, the causal relationship between the respondent's negligence and the appellant's condition. The trial judge concluded that it was difficult to accept anything that the appellant said about the onset of his symptoms, their history and the level of effect they had on him. He referred to a substantial body of evidence that the appellant consciously exaggerated his symptoms and "consciously adopted the gait he presented in court when he thought he was under observation".

There was ample evidence capable of supporting that conclusion. The trial judge also concluded, specifically and inferentially rejecting evidence to the contrary, to the effect that the appellant's complaints were not organic in origin.

The trial judge also rejected, again expressly and by implication, expert evidence (essentially from psychiatrists) capable of sustaining the conclusion of a causal relationship between the respondent's negligence and the appellant's complaints. This was in part a consequence of the trial judge's conclusions as to the credibility of the appellant and partly as a consequence of the trial judge' s evaluation of the expert medical evidence. The trial judge concluded that after the incident of 17 March 1989 the appellant had engaged for more than a year in labouring activities which it is unlikely he would have been able to pursue had the psychiatric condition from which the trial judge concluded the appellant suffered at trial was a consequence of the respondent's negligence.

On the hearing of the appeal the appellant contended that he had fresh evidence of perjury by witnesses at his trial. Pressed to identify this, he referred to the evidence of Anne Virginia Bleus, a psychologist; her evidence found some favour with the trial judge. Her evidence included evidence bearing on the trial judge's conclusion that the appellant's current condition included an element of conscious exaggeration of symptoms. This evidence was to the effect that Bleus had seen the appellant alone and hurrying up stairs in the vicinity of the courts. The perjury was said to be constituted by evidence that the appellant was coming up a ramp in the company of a receptionist employed by solicitors who instructed counsel on his behalf of the trial and that he spoke to people called Wehrenberg in the court lift.

It should be mentioned that the grounds of appeal and outline of argument made no mention of fresh evidence and no notice of what the appellant described as fresh evidence had been given to the respondent. The appellant produced no evidence beyond his assertions from the bar table. The material described as fresh evidence does not appear to be relevant to the appeal as constituted.

Assuming the material referred to by the appellant satisfies the requirements of fresh evidence (which may be doubted) Wehrenberg gave evidence at the trial of being in the lift with the plaintiff. The trial judge's conclusion concerning the appellant's exaggerated gait and so on, is not sustained by the evidence of Bleus alone and her evidence is not, again, assuming the evidence proposed to be called to be fresh evidence, necessarily controverted by the account which the appellant believes the receptionist could be expected to give.

In support of his contention of fresh evidence establishing perjury, the appellant also pointed to other evidence given at the trial, notably the evidence of a police officer who, on giving evidence as to the issue of liability described a direction as northerly when the appellant had a map which would have established it was easterly. There was no issue on the appeal about this and other matters raised by the appellant "to correct the record" as he put it. In short, nothing which was referred to by the appellant was relevant to the issue on appeal, satisfied the procedural or substantive requirements of fresh evidence or was capable of founding an overturning of the trial judge's conclusions.

It would be apparent from what has so far been said that the case was one where there were a number of areas of controversy, the resolution of which depended on the trial judge's evaluation essentially of oral evidence. The case is one in which the trial judge enjoyed an estimable advantage in that respect.

It remains to address the issue raised by the notice of appeal and the outline of argument. As has been indicated earlier these raised, in essence, that the trial judge erred in accepting and acting on the evidence of Dr Richards because a particular segment of Dr Richards' evidence applied to the appellant specifically as distinct from people (or perhaps a class of people) in general. The relevant portion of his Honour's findings is:

"Dr Richards, in his reports, expressed the view that it was not possible to ascribe the plaintiff's present condition to the accident for reasons which I have already referred to. When Dr Richards' evidence including his evidence in re-examination is viewed as a whole, I do not think that the passages relied upon at the commencement of cross-examination amount to an abandonment by Dr Richards of the opinion expressed in the report. I think Dr Richards was talking about the way in which persons including the plaintiff, may develop such psychiatric conditions consequent upon an injury rather than expressing the view that the plaintiff's conditions are ascribable to an injury sustained in the accident of March 1989.

When one looks at all of the evidence whilst the possibility that the plaintiff has developed his current condition (which includes an element of conscious exaggeration of symptoms) as a result of the accident cannot be wholly excluded, the plaintiff's claim that he is to be compensated for his current conditions as a consequence of the accident cannot be sustained.

The most that can be concluded from the evidence is that the plaintiff has developed a serious psychiatric condition since March 1989. The evidence, in my view, does not enable a finding as to the cause or the time at which the condition developed. Specifically, for present purposes, it does not permit a finding favourable to the plaintiff in this action on the question of causation."

The portion of Dr Richards evidence relied on by the appellant as sustaining the point of view for which he contends is:-

"Dr Richards, do I understand the effect of your reports to be this, that the plaintiff suffers from psychogenic pain because of a conversion disorder, the question is, is that because of his pre-existing personality, or is it - has it been brought on by the accident? Do you follow what I say by that?-- Yes, I'm just trying to - I think the term I used was somataform pain, this implies pain which persists following some sort of trauma but exceeds in nature and degree the - the expected pain.

More than you'd expect?-- More than the expected pain, yes. And one would expect it to be initiated by the accident on the background of some - some vulnerability in the person's personality. That is many people have accidents, not all of them develop somatagenic pains. I think it's a matter of - of axiomatics that people who produce symptoms of this sort have some underlying personality vulnerability. It hasn't been revealed previously but it was revealed by the accident."

It should be mentioned that the exchange took place in cross-examination by the appellant's counsel at the trial. The trial judge's conclusions which have been set out do not support a suggestion that he misapprehended the evidence of Dr Richards as the appellant contends. The trial judge did not err in his application and use of the evidence.

The appeal is dismissed with costs.