Glen v Sullivan

[2015] NSWCA 191

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Glen v Sullivan [2015] NSWCA 191
Hearing dates:	26 June 2015
Decision date:	09 July 2015
Before:	Beazley P at [1]; Ward JA at [2]; Sackville AJA at [3]
Decision:	1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal.
Catchwords:	DAMAGES – motor vehicle accident - pre-existing psychiatric condition – whether aggravation of pre-existing psychiatric condition ceased before trial – primary Judge finds that any aggravation of the pre-existing condition ceased before the trial – application of Watts v Rake and Purkess v Crittenden – whether the defendant had onus of adducing evidence that the causal relationship between the accident and the continuing disabilities had ceased – whether defendant satisfied that onus
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Motor Accidents Compensation Act 1999 (NSW), s 131
Cases Cited:	Glen v Sullivan (District Court, 6 June 2014, unrep) Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Watts v Rake [1960] HCA 58; 108 CLR 158
Category:	Principal judgment
Parties:	Anna Glen (Appellant) Norman Patrick Sullivan (Respondent)
Representation:	Counsel: R Sheldon SC / Ms E Welsh (Appellant) K Rewell SC/ Ms M Kumar (Respondent) Solicitors: Brydens Compensation Lawyers (Appellant) QBE In House Legal Claims (Respondent)
File Number(s):	2014/189383
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 6 June 2014 Before: Letherbarrow SC DCJ File Number(s): 2013/230823

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was injured in a motor vehicle accident. The respondent admitted liability. The appellant claimed that she had suffered continuing physical disabilities and that the accident had aggravated her pre-existing psychiatric condition. The primary Judge found that the appellant had sustained both physical injuries and additional psychiatric disabilities as a consequence of the accident. However, he also found, partly on the basis of surveillance evidence, that both the physical injuries and the additional psychiatric injuries had resolved well before the trial. Damages were awarded accordingly. The appellant appealed against the damages award, principally on the ground that the respondent had not discharged the onus of disentangling the compensable from the non-compensable causes of the appellant’s continuing psychiatric disabilities.

Held (Sackville AJA, Beazley P and Ward JA agreeing), dismissing the appeal:

The respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities that the continuing disabilities were caused by the accident remained on the appellant. The medical evidence adduced by the respondent, was probative of the fact that any adverse psychiatric consequences attributable to the accident had resolved before the trial. Thus the respondent had discharged the onus identified in Watts v Rake and Purkess v Crittenden.

Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Ridolfi v Hammond [2012] NSWCA 3

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Sackville AJA. I agree with his Honour's reasons and with the orders he proposes.

2. WARD JA: I agree with Sackville AJA.

3. SACKVILLE AJA: This is an appeal from a decision of the District Court (Letherbarrow SC DCJ) entering judgment for the appellant in the sum of $85,566. [1] The appellant claimed damages for injuries sustained on 10 October 2009 when she was struck by a vehicle driven by the respondent. Liability was admitted and the only issue for determination at the trial was the assessment of damages.

   1. Glen v Sullivan (District Court, 6 June 2014, unrep) (Primary Judgment).

4. The accident occurred when the appellant, then aged 41, was working as a traffic controller for a company known as Sydney Traffic Control Pty Ltd. The appellant was directing traffic along Thomas Street Ultimo, when she was hit by the respondent’s vehicle. The appellant was struck on the back of her left hand and on her left forearm.

5. As the primary Judge observed: [2]

“the contest was a strong one with the [respondent’s] primary position being that the [appellant] recovered from any accident-related physical injuries and any aggravation of her pre-existing psychiatric condition by the end of 2009 or, ‘at the worst’, by the end of 2011 and thereafter has engaged in the deliberate feigning of her symptoms for the purpose of financial gain. In short, the [respondent’s] position was that the [appellant] was a malingerer and has been for some years.

On the other hand, it was the [appellant’s] case that she continues to suffer from a condition known as a complex regional pain syndrome which is organically based. In addition, she alleges that her pre-existing psychiatric condition has been significantly aggravated by the subject accident. Indeed … senior counsel for the [appellant], in his opening stated that such aggravation overshadowed any continuing physical disability.”

2. Primary Judgment at [2]-[3].

6. The stark differences between the parties were reflected in their divergent approaches to the assessment of damages. The appellant’s schedule of damages totalled over $1.7 million. The respondent submitted to the primary Judge that on the “worst case” the award in the respondent’s favour should be no more than $100,000. In substance, the primary Judge accepted the respondent’s view.

The Hearing

7. The trial occupied eight hearing days. The appellant gave evidence and was cross-examined at considerable length with a view to establishing, among other things, that she had feigned symptoms and exaggerated her complaints. The appellant’s husband and son gave evidence in support of her case. Their evidence was also challenged by counsel for the respondent.

8. The respondent called investigators who had undertaken surveillance of the appellant. Films taken by the investigators on four occasions – 5 October 2010, 2 June 2011, 9 June 2011 and 17 August 2011 – were admitted into evidence. [3] The respondent also called Mr Lindsay, the “owner/director” of the appellant’s employer. Mr Lindsay’s evidence contradicted that of the appellant in relation to her pre-accident work history.

   3. The DVDs admitted into evidence are dated 2 and 9 September 2011, rather than 2 and 9 June 2011. However the transcript of the trial suggests that the latter dates are correct.

9. In addition to the lay evidence, the parties tendered a large volume of records from treating doctors and reports prepared by medico-legal experts. The following treating doctors whose reports were tendered on behalf of the appellant were not cross-examined: Dr Tang, the appellant’s general practitioner; Dr Adler, a consultant in rehabilitation medicine to whom Dr Tang referred the appellant in mid-2010; and Dr Bannan, a psychiatrist who had treated the appellant before the accident and to whom she was again referred following a psychiatric hospitalisation in late 2009. The appellant tendered an expert report from Dr Bodel, an orthopaedic surgeon, who was also not cross-examined.

10. Three of the experts who prepared medico-legal reports on behalf of the respondent were not required for cross-examination. They were: Dr Chen, an occupational medicine physician; Dr Powell, an orthopaedic surgeon; and Dr Brown, a consultant forensic psychiatrist. As will be seen, Dr Brown’s reports were the subject of a particularly close examination on the hearing of the appeal.

11. Two experts who prepared reports tendered by the respondent were cross-examined by counsel then appearing for the appellant. Dr Roldan is a psychologist and neuropsychologist whose report suggested that the appellant was fabricating her physical and cognitive disabilities. Dr Dalton is a consultant in rehabilitation who opined in his report that the appellant had grossly exaggerated and embellished her physical disabilities.

The Primary Judgment

12. The primary Judge delivered a lengthy and careful judgment. In substance his Honour found that although the accident caused some physical and psychological injuries to the appellant, those injuries had resolved long before the trial. The assessment of damages reflected that finding.

Questions of Credit

13. The primary Judge identified[4] the appellant’s credit as a significant issue to be resolved, having regard to the attacks on her veracity by the respondent’s counsel. In this respect, the surveillance footage of the appellant played an important part at the trial.

    4. Primary Judgment at [29].

14. According to the primary Judge, the appellant presented in the witness box and in court with her left forearm bent at a 90 degree angle and held protectively against her stomach area with her left hand closed. [5] She had presented in a similar fashion to many, but not all, doctors. By the time the appellant gave evidence she was aware of the surveillance footage.

    5. Primary Judgment at [30].

15. The primary Judge found[6] that the surveillance evidence painted a very different picture than that presented by the appellant to the medical practitioners and in court. Specifically, the appellant presented as someone who could not use her left arm or hand at all. By contrast, the surveillance footage showed her using her left hand and arm quite freely.

    6. Primary Judgment at [31].

16. The primary Judge considered that the appellant’s demeanour in the witness box was “very poor”. His Honour’s assessment was that the appellant “was willing to give untruthful answers if she thought they would help her case”. [7]

    7. Primary Judgment at [34].

17. In addition, it was necessary to take into account other matters that reflected badly on the appellant’s credit. Her evidence as to her pre-accident hours of work and earnings were contradicted by her employment records and other documentation. Her attempts to explain the discrepancies were inconsistent with the evidence of her employer, Mr Lindsay, whom the primary Judge accepted as a “straightforward witness”. [8] Further, Dr Roldan had conducted “Tests of Symptom Validity” in November 2013 and had expressed the opinion that the appellant’s scores on the tests indicated that she was feigning a cognitive disability. [9] The primary Judge accepted Dr Roldan’s evidence for the purposes of determining the appellant’s credit. [10]

    8. Primary Judgment at [37]-[40].

    9. Primary Judgment at [42].

    10. Primary Judgment at [46]-[47].

18. The primary Judge concluded[11] that the appellant’s credit was such that he could not accept her evidence as reliable, especially as to the extent of her injuries and disabilities, unless the evidence was corroborated.

    11. Primary Judgment at [47].

19. The primary Judge considered that the evidence of the appellant’s husband was of concern in a number of respects. In particular, his apparent memory lapses and his erroneous evidence as to his wife’s pre-accident working hours cast doubt on his evidence. [12] In his Honour’s view, the son’s evidence was also unreliable. [13]

    12. Primary Judgment at [144]-[146].

    13. Primary Judgment at [153].

The Appellant’s Pre-Accident Health

20. The primary Judge addressed in some detail the state of the appellant’s mental health in the period leading up to the accident. The appellant acknowledged in her evidence that she was “very unhappy” in May 2007 when she had been admitted to hospital. [14] She maintained that she was “feeling good” in the period immediately before the accident. However, this claim was contradicted by a “K10” self-assessment form that the appellant had completed in May 2009, approximately five months before the accident. Her score of 39 out of 50, so the primary Judge found, suggested that the appellant was experiencing serious depressive symptoms at the time. This was reflected in the appellant recording on the self-assessment form that she felt hopeless, depressed and worthless for most of the time during the preceding four weeks. [15]

    14. Primary Judgment at [49].

    15. Primary Judgment at [50].

21. On the basis of this and other evidence the primary Judge was satisfied[16] that the appellant had:

“a long-term significant psychiatric history involving, inter alia, self harm and long bouts of recurrent and very serious depression for which she continually took medication”.

Nonetheless, his Honour accepted that the appellant had been able to work part time during the 15 month period leading up to the accident. She had recovered “fairly well” from the acute episode in 2007 which had been triggered by her mother’s illness and subsequent death. [17]

16. Primary Judgment at [54].

17. Primary Judgment at [55].

The Medical Evidence

22. The primary Judge recorded[18] that the respondent did not dispute that the appellant developed a “complex regional pain syndrome in her left hand” as a consequence of the accident. The respondent also accepted[19] that the appellant’s psychiatric admission to hospital between mid-November and early December 2009, the first of six post-accident hospitalisations, was causally related to the accident. However, the respondent disputed that the accident was responsible for any of the appellant’s five subsequent psychiatric admissions that took place between March 2010 and May 2013.

    18. Primary Judgment at [62].

    19. Primary Judgment at [65].

23. His Honour thought it surprising that none of the medical practitioners who had treated the appellant and none of the medico-legal experts who had been asked by the appellant’s solicitors to prepare reports had seen the surveillance footage. [20] This omission had been rectified during the trial.

    20. Primary Judgment at [77].

24. Dr Bodel, an orthopaedic surgeon, prepared a report in October 2011 stating that the appellant had developed symptoms of complex regional pain syndrome. He prepared a supplementary report after seeing the surveillance footage. Dr Bodel thought that the appellant’s use at times of her arm in a fairly normal fashion was not inconsistent with her clinical presentation. [21]

    21. Primary Judgment at [80].

25. Dr Klug, a psychiatrist, first saw the appellant in November 2011. His view was that the appellant was suffering from a severe and unremitting complex regional pain syndrome. From a psychiatric perspective, Dr Klug acknowledged that the appellant had received a pre-existing diagnosis of a recurrent major depressive disorder. On Dr Klug’s understanding, she had been “very well” at the time of the accident, but had developed severe recurrent depressive episodes thereafter. In his opinion, the accident had profoundly destabilised her mental state. [22]

    22. Primary Judgment at [82].

26. In his final report dated 5 May 2014, the same day as he gave evidence, Dr Klug commented on the surveillance footage. He adhered to his opinion that the appellant suffered from “a severe unremitting complex regional pain syndrome involving her left arm” and that she also had a severe and chronic major depressive disorder. He considered that both of these conditions were related to the accident. Dr Klug took into account that for about two years prior to the accident the appellant had been “psychiatrically very well”.

27. The primary Judge noted that in contrast to the appellant’s experts, the medico-legal specialists who assessed the appellant on behalf of the respondent had all seen the surveillance footage. His Honour said that it was:[23]

“fair to say that those whom had seen the [appellant] prior to seeing that material largely accepted her and expressed opinions supportive of the [appellant’s] case but when they later saw such material, they essentially reversed their opinions.”

23. Primary Judgment at [92].

28. The primary Judge recounted at length the evidence of the respondent’s medical experts. In particular, he carefully examined the psychiatric reports prepared by Dr Brown in March 2011, June 2011, August 2011, September 2011 and October 2013.

29. In her first report of March 2011, Dr Brown’s provisional opinion was that the appellant had probably experienced a mild exacerbation of her pre-existing chronic depressive disorder and had developed a new onset chronic pain disorder as the result of the accident. However, Dr Brown said that the appellant “impressed as being unencumbered by any significant degree of abnormal illness behaviour at present”. [24] At this stage, Dr Brown had not seen any surveillance footage.

    24. Primary Judgment at [105], referring to Dr Brown’s report of 28 March 2011.

30. By the time Dr Brown prepared her report of September 2011, she had seen the surveillance footage taken in October 2010 and August 2011. Dr Brown’s view was that the surveillance footage “raised the possibility of malingered behaviour”. She also noted that if the appellant did not have the types of restrictions she had previously reported: [25]

“whatever the cause of [the appellant’s] arm pain symptoms and restricted movements, her post-accident report of various psychological symptoms cannot be confidently aetiologically limited to the [accident]”.

25. Primary Judgment at [111], referring to Dr Brown’s report of 28 September 2011.

31. The primary Judge pointed out[26] that Dr Brown in her final report of 31 October 2013 questioned Dr Klug’s view that the appellant did not suffer from a pre-existing borderline personality disorder. Dr Brown also emphasised the significance of the surveillance footage to Dr Klug’s opinion that the appellant’s prognosis was linked to her physical condition. Dr Brown had concluded that if the appellant’s arm function was adequate to undertake daily living activities there was a much less substantial basis for considering that she was significantly incapacitated from a psychiatric viewpoint as a result of the accident.

    26. Primary Judgment at [112].

32. The primary Judgement returned[27] to Dr Roldan’s evidence that the tests he had administered indicated that the appellant was feigning cognitive incompetence. [28] Dr Roldan had reached this conclusion partly because the tests administered to the appellant were so simple that even severely disturbed psychiatric inpatients produced much better scores. His Honour found Dr Roldan’s explanation as to the working of the test quite clear and he was satisfied[29] that the appellant’s results showed “a very significant degree of exaggeration”.

    27. Primary Judgment at [120].

    28. Primary Judgment at [121].

    29. Primary Judgment at [122].

The Primary Judge’s Reasoning

33. The primary Judge stated that the question of causation was governed by s 5D of the Civil Liability Act 2002 (NSW) (CL Act). As there was no issue concerning “scope of liability”,[30] the only issue concerned factual causation – that is, whether the appellant would not have suffered the particular harm but for the respondent’s negligence. [31]

    30. CL Act s 5D(1)(b).

    31. Primary Judgment at [157].

34. After recounting the respondent’s unfortunate history of mental health problems, the primary Judge found that the appellant was:[32]

“very psychiatrically vulnerable at the time of the subject accident due to her long-standing depressive condition and associated selfharming behaviour”.

32. Primary Judgment at [158].

35. His Honour accepted[33] that the accident was frightening and left the appellant in considerable shock and caused injury to her left hand. She had developed a complex regional pain syndrome in her left hand and wrist as a result of the accident, which caused her psychiatric condition to seriously destabilise. However, the primary Judge was satisfied[34] that by October 2010 the appellant was significantly misrepresenting the level of her symptomology to most of the treating doctors and continued to do so thereafter.

    33. Primary Judgment at [160].

    34. Primary Judgment at [161]. See also at [68].

35. His Honour found[35] that by October 2011, the respondent was no longer suffering from complex regional pain syndrome or any other physical condition that would render her unfit for her pre-accident employment or otherwise affect her pre-accident earning capacity. His Honour further found that any aggravation of the appellant’s pre-accident psychiatric condition had ceased by October 2011. The psychiatric problems from which she suffered after that date were the consequence of and caused by her pre-existing condition.

    35. Primary Judgment at [162].

36. It was common ground at the trial that the appellant was not entitled to damages for non-economic loss as she did not satisfy the statutory threshold. [36] The primary Judge assessed damages at $85,566, made up as follows:

    36. Motor Accidents Compensation Act 1999 (NSW), s 131.

Past Economic Loss	$20,000
Fox v Wood	$1,500
Superannuation Loss	$2,200
Past Personal and Domestic Assistance	$16,200
Past Out-of-Pocket Expenses	$45,666
TOTAL AWARDED	$85,566

Submissions

38. The oral submissions made on the appellant’s behalf were somewhat more confined than the written submissions. Mr Sheldon SC, who appeared with Ms Welsh for the appellant, did not challenge the findings made by the primary Judge that:

• the evidence given by the appellant and the members of her family was not reliable;

• by October 2011, the appellant was no longer suffering from complex regional pain syndrome or from any significant physical injuries attributable to the accident; and

• Dr Klug’s opinion that the appellant’s continuing psychiatric problems were causally related to the accident was undercut by the finding that any physical injuries attributable to the accident had resolved by October 2011. [37]

  37. Dr Klug’s opinion was undercut because it was based on the proposition that the cause of the appellant’s continuing psychiatric complaints was her physical problems associated with the accident: see Primary Judgment at [164].

39. Mr Sheldon’s principal submission was that the primary Judge erred in failing to disentangle the non-compensable causes of the appellant’s continuing psychiatric disabilities from the compensable causes. Once it was accepted that there was a causal connection between the accident and the appellant’s subsequent psychiatric disabilities, at least for some time, it was the respondent who was required to exclude the accident as a contributing cause of her post-accident condition. The primary Judge had simply applied s 5D of the CL Act and had overlooked the principle established by cases such as Watts v Rake. [38]

    38. [1960] HCA 58; 108 CLR 158.

40. Mr Sheldon submitted that even discounting Dr Klug’s opinion and accepting that the physical consequences of the accident had resolved by 2011, there was affirmative evidence linking the appellant’s continuing psychiatric disabilities to the accident. The starting point was the respondent’s concession that the appellant’s psychiatric hospitalisation in late 2009 was attributable to the accident and the finding that the appellant suffered complex regional pain syndrome for some time after the accident. The undisputed fact that the appellant had been hospitalised on five occasions after 2009 supported her claim that her continuing psychiatric disabilities were causally related to the accident.

41. In these circumstances, so Mr Sheldon argued, the respondent had failed to adduce evidence satisfying the requirement of Watts v Rake. The evidence relied on by the respondent was equivocal and left the relationship between the accident and the appellant’s psychiatric condition uncertain. Specifically, the respondent’s reliance on the evidence of Dr Brown was misplaced because she had never ruled out the causal association suggested by the evidence adduced on behalf of the appellant.

42. Mr Sheldon further submitted that the primary Judge’s finding that the appellant’s reporting of symptoms was unreliable overlooked that her complaints to doctors had been variable before the surveillance footage was taken. This, so it was argued, minimised the significance of the apparent inconsistences between the appellant’s presentation to the medical practitioners and the freedom of movement she displayed in the films taken by the investigators.

Reasoning

The Nature of the Onus

43. In Watts v Rake, the defendant contended that part of the plaintiff’s condition at trial was traceable to causes other than the accident and that even if there had been no accident he would have become prematurely incapacitated by reason of a pre-existing arthritic condition. Dixon CJ said that there is a presumption in the plaintiff’s favour that the defendant must overcome:[39]

“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”

39. [1960] HCA 58; 108 CLR 158 at 160.

44. Menzies J stated the principle as follows:[40]

“Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.”

40. [1960] HCA 58; 108 CLR 158 at 163-164. Windeyer J agreed with both judgments.

45. The language used by Dixon CJ and Menzies J perhaps suggests that in the situation they describe, the burden of persuading the trier of fact shifts to the defendant. In Purkess v Crittenden,[41] however, the High Court made it clear that Watts v Rake should not be interpreted in this way. The joint judgment explained the correct position as follows:[42]

“where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.”

41. [1965] HCA 34; 114 CLR 164.

42. [1965] HCA 34; 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ).

46. Windeyer J, who had concurred in Watts v Rake without further reasons, observed in Purkess v Crittenden that the earlier decision had been “misunderstood”:[43]

“This has occurred from a failure to distinguish between the two main senses in which the term ‘burden of proof’ is commonly, but perhaps confusingly, used by lawyers …

In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant’s conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. …

The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant.”

43. [1965] HCA 34; 114 CLR 164 at 170.

47. In summary, the position can be stated as follows:[44]

“Where the plaintiff establishes a prima facie case that the incapacity has resulted from the injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example by reason of a pre-existing degenerative condition: … However, the burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff: …”

In certain cases it is necessary to take account of the principle that, in assessing damages, the law takes account of hypothetical situations in the past and the chance of future events occurring. [45] However, neither party suggested that the present is such a case.

44. Ridolfi v Hammond [2012] NSWCA 3 at [86] (Sackville AJA, Beazley P and Campbell JA agreeing).

45. Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [103] (Ipp JA, Mason P agreeing).

Does the Principle Apply in this Case?

48. Mr Rewell SC, who appeared with Ms Kumar for the respondent, submitted that the principle stated in Purkess v Crittenden does not apply to the circumstances of the present case. He pointed out that in both Watts v Rake and Purkess v Crittenden, the issue was whether the plaintiff’s pre-existing degenerative condition would have led to incapacity in due course even if the accident had not occurred. Mr Rewell contended that the present case is distinguishable because it does not involve any supervening incapacity. The issue is whether the appellant’s continuing incapacity is attributable to the accident or, as the primary Judge found, is no longer causally related to the accident.

49. In my view, notwithstanding the factual difference identified by Mr Rewell, the principle stated in Purkess v Crittenden applies to the present case. There was no dispute at the trial or on the appeal that the accident had caused the appellant to sustain some physical and psychiatric injuries. It was also not in dispute that the appellant continued to suffer from serious psychological disabilities at the date of the trial. In principle, it is difficult to see why the respondent should not have borne the burden of adducing evidence to rebut what Dixon CJ in Watts v Rake referred to as the presumption that the appellant’s continuing disabilities were causally related to the accident. To adapt the language in Purkess v Crittenden, once the appellant made out a prima facie case that her continuing psychiatric disabilities resulted from the respondent’s negligence, the onus of adducing evidence showing that the disabilities were wholly the consequence of the appellant’s pre-existing condition fell on the respondent.

50. This conclusion is supported by the facts of Watts v Rake. It is true that one issue in that case was whether the plaintiff would have become incapacitated in due course even if the accident had not occurred. But another issue was whether part of the plaintiff’s “present condition [was] traceable to causes other than the accident”. [46] The Court said that the defendant bore the onus of adducing evidence in relation to both issues.

    46. Identified by Dixon CJ as the “second” issue: Watts v Rake (1960) 108 CLR 158 at 160.

51. It follows that Mr Sheldon is correct to submit that the respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities remained on the appellant.

Did the Respondent Satisfy the Onus of Adducing Evidence?

52. The appellant’s submissions at times appeared to come close to suggesting that the respondent bore the onus of proving on the balance of probabilities that the appellant’s continuing psychiatric disabilities were not causally related to the accident. For the reasons I have given, if that submission was advanced it was not correct. However, the appellant’s principal submission is that the respondent did not adduce affirmative evidence tending to prove that the causal relationship between the appellant’s psychiatric injuries and the accident had ceased long before the trial.

53. Both Mr Sheldon and Mr Rewell approached this submission on the basis that the primary Judge’s rejection of Dr Klug’s opinion meant that the critical evidence consisted of Dr Brown’s reports. Mr Sheldon contended that Dr Brown’s evidence was equivocal on the issue of causation, while Mr Rewell submitted that Dr Brown’s later reports provided clear and strong evidence in support of the respondent’s position. It is therefore necessary to consider how Dr Brown’s opinions evolved as more information became available to her.

54. Mr Sheldon correctly pointed out that in Dr Brown’s first report of 28 March 2011, she accepted that there was likely to be a causal relationship between the accident and the appellant’s continuing psychiatric disabilities. Dr Brown recorded that the appellant had suffered from serious psychiatric disorders before the accident. These included long-term chronic depressive symptoms suggestive of Dysthymic Disorder, punctuated by episodes of major depression. Dr Bannan, the appellant’s treating psychiatrist, had diagnosed her as suffering from borderline personality disorder, which Dr Brown considered to be either an alternative diagnosis or an additional diagnosis, founded on the appellant’s long-term history of intermittent self-harming behaviour and mood instability.

55. On the basis of the information available to her at that time, Dr Brown’s view was that the appellant had:

“probably experienced an exacerbation of her chronic Depressive Disorder, whether it represents part of an underlying Bipolar Disorder, comorbid features of Borderline Personality Disorder or a long-standing Dysthymic Disorder”

In addition, Dr Brown thought that the appellant had probably developed a chronic pain disorder “in which psychological factors [had] been relevant in the aetiology and maintenance of her left hand complaints”.

56. Under the heading “Causation”, Dr Brown expressed the following opinion:

“[The appellant’s] exacerbated depressive disorder and new onset Pain Disorder have arisen on the basis of multiple factors associated with her involvement in the October 2009 MVA. She described an early onset of unrelenting pain in her left arm and which from misuse has become non functional. Even though not [the appellant’s] dominant hand, loss of functioning in a hand is a moderately severe chronic life stressor, given its effect on limiting involvement in normal daily activities. A combination of unremitting pain and reduced physical capacities are likely to have contributed to [the appellant’s] exacerbated depression. A perception that the accident was deliberately perpetrated, whether accurate or not, is a further factor which is likely to have fuelled [the appellant’s] anger and preoccupation with her predicament.”

Dr Brown qualified this opinion by noting that the appellant would have continued to experience mild ongoing depressive complaints, punctuated by more severe episodes of depression and possible hypomania as part of her underlying mood disorder even if the accident had not occurred.

57. By the time she prepared her second report of 10 June 2011, Dr Brown had seen the surveillance footage of 5 October 2010. Dr Brown observed that interpretation of the footage was limited by its quality and distance between the camera and the subject. Nonetheless, Dr Brown considered that if the footage was indicative of the appellant having more movement in her hand than she had indicated to Dr Chen (who had examined the appellant on the same day as the surveillance footage had been taken), “some alterations to the previously offered opinion would be provided”. Dr Brown continued as follows:

“Although these findings would not disqualify [the appellant] from still having developed a Chronic Pain Disorder, whether physiologically or psychologically based, they raise the possibility that she did not provide an accurate history. Regardless of whether there may have been any conscious deception in this regard, the significance of [the appellant] having more movement in her hand than she acknowledged is that her reported associated restrictions would be more limited and therefore would not suggest such a poor prognosis. In particular, [the appellant] does have the capacity for movement of her left hand, further improvements in this regard may be possible.”

58. Before preparing her third report of 8 August 2011, Dr Brown saw the surveillance footage of the appellant taken on 2 June 2011. [47] Dr Brown noted Dr Chen’s comment that the DVD footage suggested that there was “an unlikely physiological basis for the symptoms to change from time to time”. Dr Brown expressed the following opinion:

“Given that my opinion of [the appellant] having developed an exacerbation of her pre-existing psychiatric disorder was based on her report that she was distressed both by pain and the limitations on the use of her left arm, both this diagnosis and a causation linked to her left arm symptoms are not able to be sustained and raise the possibility of malingered behaviour. Unless the discrepancy between [the appellant’s] reported pain and physical disabilities and the surveillance footage indicating a capacity to use her arm in normal activities is able to be reconciled, I would withhold any confident opinion being provided both regarding diagnosis and causation of her psychiatric state since the October 2009 accident.”

47. It is not clear why at this stage Dr Brown seems not also to have been shown the footage taken on 9 June 2011.

59. Mr Sheldon correctly submitted that Dr Brown’s third report, while expressing scepticism about the link between the accident and her psychiatric state, did not unequivocally rule out any such link. But in her fourth report of 28 September 2011, Dr Brown reassessed the position. Her reassessment was based, among other things, on a 55 minute interview with the appellant, a review of the surveillance footage taken between June and August 2011 and consideration of a report prepared by Dr Chen after she had seen the surveillance footage taken on 9 June 2011.

60. Dr Brown reported that the interview with the appellant indicated that she was not suffering from Post Traumatic Stress Disorder and did not have a specific phobia of a travel type, both of which had been suggested by some earlier medico-legal reports. Dr Brown continued as follows:

“Although it remains possible that [the appellant] is suffering from a Pain Disorder in which psychological factors have been important in contribution, it is now not possible to confirm a diagnosis of this type having arisen as a result of the MVA with any degree of confidence. Individuals who develop abnormal illness behaviour are not consciously aware that their invalided behaviour arises because of a connection between their psychological state and their physical symptoms, to which they often respond with avoidance of normal activities. However, from having reviewed several surveillance DVDs complied between June to August 2011, this footage raises an alternative conceptualisation, in terms of a possible development of symptom exaggeration or fabrication. On the basis of [the appellant] being observed in the surveillance footage of her left hand in a natural fashion in a variety of activities, which is also noted by Dr Chen in her 18 August 2011 report, the possibility of malingered behaviour is raised for consideration.

…

The weight of evidence in the surveillance footage which reveals a preserved capacity to use her left arm normally, and which [the appellant] claimed she would be aware of, strongly raises the possibility of malingered behaviour. An ultimate decision as to the veracity of [the appellant’s] account of events cannot be determined by a psychiatrist and will be a matter of legal consideration.” (Emphasis added.)

61. Dr Brown expressed her “current opinion” in unequivocal terms:

“[the appellant] is not suffering from a psychiatric condition secondary to the October 2009 MVA and therefore would receive a psychological [Whole Person Impairment] rating of 0%”. (Emphasis added.)

62. Dr Brown elaborated on her opinion:

“At the time of the initial assessment report, a number of features of the MVA, as described by [the appellant], were considered to have contributed to her development of psychological sequelae. Although the new information which has become available would not preclude [the appellant] from having been distressed by the accident or the associated injury to her arm, it is now not possible [to] support [the appellant] as having developed an exacerbated chronic depression and associated travel symptoms as arising on this basis … If she does not have the type of restrictions she has reported in both assessments of her and is able to make free use of her arm, as displayed in the surveillance footage, it is my opinion that whatever the cause of [the appellant’s] arm pain symptoms and restricted movements, her post-accident report of various psychological symptoms cannot be confidently aetiologically linked to the MVA.” (Emphasis added.)

63. In Dr Brown’s final report of 31 October 2013, she presented detailed reasons for rejecting Dr Klug’s opinion that the appellant’s psychiatric condition since October 2009 was largely attributable to accident-related sequelae. Among other matters, Dr Brown pointed out that Dr Klug had not had the opportunity to review the surveillance footage. Dr Brown concluded her report as follows:

“If [the appellant’s] injured arm function is adequate for her to undertake activities of daily living, even if she reports subjective arm pain, there is a much less substantial basis for considering that she is significantly incapacitated from a psychiatric point of view, as a result of the accident of 10 October 2009.”

64. Dr Brown’s reports show that she reassessed her opinion as to the relationship between the accident and the appellant’s psychiatric disabilities as more information became available to her. The information included, but was not limited to the surveillance footage. In her fourth report of 28 September 2011, Dr Brown was careful not to express a concluded view as to whether the appellant was malingering, although she thought this was a strong possibility. It is quite clear, however, that if the appellant’s account of her physical constraints and other symptoms in and after 2010 was untrue (as the primary Judge found), Dr Brown’s opinion was that the appellant was not suffering from an aggravation of her pre-accident condition or any other psychiatric disabilities as a consequence of the accident. Dr Brown’s reports therefore provided probative evidence that any causal relationship between the accident and the appellant’s psychiatric disabilities had ceased at least by October 2011. This was the primary Judge’s finding.

65. Dr Brown’s reports were not the only evidence affirmatively supporting the respondent’s case on causation. Dr Roldan’s evidence was vigorously challenged at the trial, but it was accepted by the primary Judge. In his detailed report of 5 December 2013, Dr Roldan stated his conclusions as follows:

“on five objective psychometric measures of symptom validity (including the Test of Memory Malingering, the Rey 15-Item Memory Test, the Words and Faces subtests of the Warrington Recognition Memory Test and the Abbreviated-Hiscock Forced Choice Procedure), [the appellant] scored well within the range that has been found to be diagnostic of fabricated and/or exaggerated cognitive/psychological disability. These findings might also be said to have implications for the validity of her report regarding physical symptoms.

With regard to [the appellant’s] psychological functioning, I note that she appears to have a long-standing history of psychological/personality disturbance. Consistent with what others have opined, I am not convinced that [the appellant] necessarily attracts a diagnosis of Bipolar Disorder. However, on the basis of the information currently available to me, I believe that it is highly likely that [the appellant] attracts a diagnosis of Borderline Personality Disorder with associated recurrent episodes of major depression. These conditions are unrelated to the subject accident and have their origins in inherited and/or early traumatic psychosocial factors.

In my opinion, there is no objective evidence that [the appellant’s] pre-existing psychological/personality disturbance has been exacerbated by the subject accident.

Also, in my opinion, on the basis of the currently available evidence, there is no objective evidence that the subject accident gave rise to a ‘new’ psychological disturbance.”

66. If follows that the respondent discharged its onus of adducing evidence probative of the fact that any causal relationship between the accident and the appellant’s psychiatric disabilities had ceased well before the trial.

67. I think it also follows from the primary Judge’s analysis of the evidence that his Honour was well aware that the respondent bore the onus of adducing evidence on this issue. His Honour did not expressly refer to Watts v Rake or Purkess v Crittenden, but he was referred to those cases. His careful approach to the evidence demonstrates, in my opinion, that he appreciated the differing evidentiary burdens borne by each of the parties. Thus the respondent has not established that the primary Judge erred in his approach.

The Post-Accident Hospitalisations

68. As I have noted, Mr Sheldon submitted that the appellant’s five periods of hospitalisation after 2009 showed that she continued to suffer psychiatric incapacity as a consequence of this accident. The submissions repeated a contention put on the appellant’s behalf to the primary Judge.

69. There was no dispute at the trial that the appellant suffered from severe psychiatric disorders prior to the accident, although there was a dispute as to how far her condition had improved in the period leading up to the accident. Dr Bannan, the appellant’s treating psychiatrist, diagnosed her in 2007 as suffering from borderline personality disorder. He repeated this diagnosis in a report dated 18 May 2011. Dr Bannan prepared that report after having seen the appellant on numerous occasions between her hospitalisation in November 2009 and March 2011.

70. Dr Klug’s preferred diagnosis was not borderline personality disorder, although he appeared to accept in his oral evidence that it was a defensible diagnosis. Dr Klug also accepted that a person suffering from a longstanding borderline personality disorder is apt to experience very severe episodes of depressive symptoms, perhaps including self-harm, and that such episodes are unpredictable in their timing. Dr Klug agreed that a person with such a long term condition may experience the severe episodes in clusters or at intervals, yet be capable at other times of performing reasonably well in daily life and at work.

71. The primary Judge referred to the appellant’s six post-accident admissions to psychiatric institutions, the first of which the respondent conceded was attributable to the accident. In all cases, except for one manic episode, the admissions were for recurrent major depressive episodes. His Honour did not regard the five admissions after 2009 as inconsistent with his finding as to causation.

72. The evidence given by Dr Klug as to the characterisation of the borderline personality disorder support the primary Judge’s view, as does the appellant’s pre-accident psychiatric history. In addition, Dr Brown in her final report of 31 October 2013 reviewed the records of the appellant’s admission to hospital in March 2013. The records revealed that the hospitalisation followed particular stresses unrelated to the consequences of the accident, leading Dr Brown to criticise Dr Klug for not considering that the appellant’s ongoing presentation might be related to “personality dysfunction rather than having arisen secondary to the accident”.

73. The appellant has not shown that the primary Judge overlooked the post-2009 hospitalisation, nor that his Honour erred in finding that the appellant’s ongoing disabilities were not connected with the accident.

74. I add for completeness that the evidence given by the appellant’s son concerning an incident that occurred after the third day of the trial had ended does not carry the matter further. The appellant’s written submissions characterised the incident as the appellant endeavouring to throw herself from the family car when being driven home. The evidence of the incident came from the son, who was regarded as an unreliable witness. In any event, his description of the incident fell far short of demonstrating that the appellant acted in the self-destructive way attributed to her.

Inconsistency in Presentation

75. Mr Sheldon submitted that the primary Judge paid insufficient attention to evidence that the appellant’s presentation to doctors prior to her learning of the surveillance footage was inconsistent. This submission seems to have been intended to answer the primary Judge’s preference for the evidence of Dr Dalton over that of Dr Bodel. His Honour discounted Dr Bodel’s opinion that the appellant suffered in October 2011 from complex regional pain syndrome. His Honour discounted Dr Bodel’s view in part because Dr Bodel did not see the appellant present herself as essentially one-armed, “probably because [the appellant] had seen the surveillance material shortly before her attendance”.

76. The primary Judge did not say that the appellant presented in a uniform way to all doctors prior to her learning towards the end of 2011 that she had been filmed. His findings were influenced by the disparity between the appellant’s presentation to doctors and the freedom she displayed in the surveillance footage. On some occasions, as the primary Judge pointed out, surveillance and the consultations took place on the same day. That there may have been some variability in the appellant’s presentation prior to late 2011 is hardly inconsistent with a finding that she was grossly exaggerating her symptoms.

Orders

77. The appeal must be dismissed, with costs.

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Endnotes

Decision last updated: 09 July 2015