Herreen v Ciftci
[2010] SASCFC 33
•24 September 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HERREEN v CIFTCI
[2010] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
24 September 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - GENERAL PRINCIPLES - PERSONAL INJURY OR DEATH CASES
The respondent was injured in a motor vehicle accident caused by the negligence of the appellant - the respondent claimed to have suffered ongoing injuries and incapacity as a result of the accident, and was awarded damages in the District Court. The appellant appealed the award on the basis that the Judge's acceptance of the plaintiff's evidence was inconsistent with incontrovertible facts and was glaringly improbable.
Held: appeal allowed - despite the advantages of the trial Judge in assessing the witnesses, the findings were erroneous - the Judge should have found that the respondent had exaggerated his symptoms and his incapacity - the award of damages should be reduced.
Evidence Act 1929 (SA) s 34C; Wrongs Act 1939 s 35A, referred to.
Glavinas v Holden's Motor Company Limited [1991] SASC 2089, discussed.
Ciftci v Herreen [2010] SADC 7; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Wilson v Peisley (1976) 50 ALJR 207; Purkess v Crittenden (1965) 114 CLR 164; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.
HERREEN v CIFTCI
[2010] SASCFC 33Full Court: Doyle CJ, Bleby and White JJ
DOYLE CJ: I agree with the orders proposed by White J, and with his reasons. There is nothing that I wish to add.
BLEBY J: For the reasons given by White J I agree that the appeal should be allowed and that the respondent’s damages should be reduced in the manner and to the extent proposed by White J.
WHITE J: On 11 April 2002, a car driven by the appellant (the defendant) collided with the rear of the car in which the respondent (the plaintiff) was the front seat passenger as it was driving along Port Road at Cheltenham. It was a violent collision, pushing the plaintiff’s car forward a considerable distance until it came to rest part-way over a railway crossing.
Shortly afterwards, the plaintiff complained of pain in his right hand and wrist, right shoulder and in his neck and back. He has continued to complain of pain in these areas, particularly in the right hand, wrist and shoulder since that time. The plaintiff claimed damges for those injuries.
The defendant admitted his negligence. A District Court Judge awarded the plaintiff damages of $279,707.50,[1] comprised as follows:
[1] Ciftci v Herreen [2010] SADC 7 at [394].
Non economic loss
$25,650.00
Past economic loss
$96,000.00
Past superannuation
$8,000.00
Future economic loss
$100,000.00
Future superannuation
$11,000.00
Future travelling/medical expenses
$3,000.00
Voluntary/gratuitous services
$3,000.00
Future personal care
$2,000.00
Household maintenance/gardening
$2,000.00
Special damages
$11,057.50
Interest
$18,000.00
Total
$279,707.50
The defendant appeals against that judgment.
At the trial, the defendant disputed that the collision had caused the plaintiff any injury at all, but he did not persist with that submission on the appeal. Instead, the defendant contended that the Judge should have found that any injury which the plaintiff did sustain in the collision did not produce the claimed symptoms. In the alternative, the defendant contended that any continuing disabling effects which the plaintiff has should have been found to be the result of an injury which he sustained to his right wrist as a child, rather than as the result of the collision.
The trial in the District Court, which lasted some 24 days, involved a major challenge by the defendant to the plaintiff’s credibility. The centrepiece of the challenge was the extensive video footage of the plaintiff’s activities taken by investigators retained by the defendant’s insurer. Ultimately, however, the Judge accepted that the plaintiff’s evidence was reliable. She also accepted as reliable the opinion evidence of the plaintiff’s treating surgeon, Mr Morrison. The trial Judge’s assessment reflected that acceptance.
On the appeal therefore, the defendant must satisfy this Court that it is appropriate to overturn findings of fact based on the trial judge’s assessment of the plaintiff’s credibility. In my opinion, the defendant has made good that challenge, and the damages awarded by the Judge should be reduced. My reasons for that conclusion follow.
Background
The plaintiff was born in 1966 in a rural part of Turkey and grew up on a farm. He had eleven years of schooling, describing himself as a bright student. When he left school he completed a one year course of training as a teacher and then worked as a primary school teacher for about two years. In 1993 and 1994 he completed 19 months of compulsory National Service in the Turkish Army and, on his discharge, began a business buying and selling pistachio nuts. He continued in that business until about 1998 when, for political reasons, he left Turkey.
Eventually the plaintiff came to Australia and was held in a Detention Centre at Port Hedland for most of 1999. At the end of that year he was granted permanent residence in Australia, and has remained here ever since.
Initially the plaintiff spent three months in Perth attending a school to improve his English. He then went to Sydney where he undertook a further course in English and completed a three month course in security guard work for which he obtained a certificate. While undertaking these courses, the plaintiff obtained part-time work in a Turkish Pizza Bar. He worked at this job for about seven hours each week for a period of about nine months.
In March 2002 the plaintiff came to live in Adelaide. At the beginning of April 2002 he commenced full-time work at a yiros shop at Tea Tree Plaza. This was on a trial basis and the plaintiff worked four days. The owner, Mr Durmaz was satisfied with his work and offered him a job on a permanent basis. However, the collision on 11 April 2002 intervened and the plaintiff was unable to continue. Mr Durmaz paid the plaintiff $480 for his four days work and said that he expected to pay “$500-$550” per week if the plaintiff had become a permanent employee.
The Collision
On 11 April 2002 the plaintiff was a front seat passenger in a car travelling at about 60 kph on Port Road at Cheltenham. While travelling in this manner, it was struck from behind by the defendant’s car. The Police Report described the defendant as having been “travelling at speed”. The defendant did not stop after impact and he was apprehended later.
The plaintiff was wearing a seat belt but the force of the impact wrenched his body. He put out his right hand to the dashboard to restrain himself and appears thereby to have sustained a spraining injury to his right wrist. In addition the plaintiff suffered soft tissue injuries to his right shoulder, neck and back.
Medical Treatment
The plaintiff was taken by ambulance to the Queen Elizabeth Hospital (QEH) but, after waiting more than three hours, he left the Emergency Department without seeing a doctor. However, he continued to be in pain and consulted a general practitioner, Dr Siaw, on 13 April 2002. Dr Siaw noted that the plaintiff’s right forearm was swollen and the movements of his right wrist were limited. He also noted that the plaintiff had tenderness over the lumbar spine and that his neck rotation was restricted.
Dr Siaw referred the plaintiff to the Orthopaedic Outpatients’ Department at the QEH. An x-ray of his right wrist showed an old un-united fracture of the ulnar styloid and of the right distal radius, with some development of arthritic changes. The plaintiff was not aware of any previous injury but, on checking with his mother, was reminded that he had injured his right wrist as a child. Mr Morrison, an orthopaedic surgeon, recommended an operation to remove a fragment of the right ulnar styloid, and this was performed at the QEH on 28 February 2003. However, even after the operation the plaintiff continued to complain of weakness and pain in the right wrist.
Apart from his frequent attendances at the QEH Orthopaedic Outpatients’ Department, the plaintiff also consulted Dr Siaw regularly during the latter part of 2002 and the first half of 2003.
The plaintiff’s wife and children joined him in Adelaide in June 2002.
Post-Collision Employment
In about the middle of 2003, the plaintiff and his family moved to live in Mildura. The plaintiff’s evidence was that he had not been able to return to work at all after 11 April 2002 before moving to Mildura. A letter written by his former solicitors to Dr Siaw, in December 2002, suggested that the plaintiff had resumed working in September 2002 as a food preparer and assistant store manager on six days each week. However, in his evidence, the plaintiff denied that this was correct and suggested that the former solicitors had, because of difficulties with the interpreter, misunderstood his instructions. Instead, he said that he had simply been filling in time at the takeaway shop run by a friend, using predominantly his left hand to lend such assistance as he could. Although he was often there from 6.30 am to 5.30 pm most days, he had not been paid, other than in kind by gifts of food and cigarettes.
The plaintiff continued to live in Mildura until about July 2005 when he and his family returned to Adelaide.
In his evidence-in-chief, the plaintiff said that he had tried working in Turkish restaurants in Mildura but, because of the condition of his right wrist, had been unable to continue. He had then participated in multiple “work trials” of vineyard work, including harvesting of grapes, vine training and vine pruning. The plaintiff said that he had been unable to do that work because of his inability to use his right hand. It meant that after working for periods of up to one hour he had to stop.
In his cross-examination, the plaintiff said that he participated in the work trials with a contractor named Suleyman Erdogan at various places in the vicinity of Mildura, including Canley, Marciana, Treviso and at Menindee. He had attempted work trials “many, many times” (later clarified to be four or five times)[2] but had had to stop because the pain in his right hand became too great.
[2] T302.
On his return to Adelaide, the plaintiff initially sought work in a yiros shop at Edwardstown. He was unsuccessful. He said that he then commenced working at Mega Snack Bar at the Greenacres Shopping Centre. He obtained the work because the owner, Mr Ali, was a friend. The job entailed one hour’s work each day on four days each week for which he was paid $40 per week. He would open up the shop at 7.00 am and switch on the coffee machine, heaters and other electrical appliances.
In October 2006, another friend, Mr Shackal, bought the Mega Snack Bar. The plaintiff said that he continued working in the shop on the same basis, until Mr Shackal sold it in October 2007.
In his cross-examination, the plaintiff said that each morning he would also put out the light aluminium chairs and tables serve customers and brew coffee. Sometimes he would stay on after 8.00 am, for something to do, even though he was not being paid. Sometimes he would return to the Mega Snack Bar during the day, again just to occupy his time. He was able to manage the work in the shop by taking pain killers but the effect of these would wear off after an hour or so.
In late 2007 or early 2008, the plaintiff and his family returned to live in Mildura where they have remained. The plaintiff said that he had not obtained any employment in Mildura, mainly because of the difficulties with his right hand and wrist.
Plaintiff’s Case at Trial
The plaintiff said that his right wrist caused him significant pain and he described gross restrictions of movement. When asked in the witness box to demonstrate the available movement of his right hand and arm, the plaintiff used his left hand to support the right arm as he extended it in front of him. He said that he had had to support the right arm in that way since the collision on 11 April 2002, indicating thereby the restricted range of movement open to him. The plaintiff said that he was able to carry only light objects, usually using his left hand for this purpose. He said that on some days the pain was so bad that he was unable even to sign his name.
The plaintiff said that although before the collision he had been able to engage in cooking, cleaning, washing, gardening and odd jobs around the house, he could no longer do those things. The plaintiff also demonstrated significant restriction in the range of movement of his right shoulder.
In summary, both the plaintiff’s evidence-in-chief and his manner of presentation suggested that his right arm was affected by a substantial disability.
Plaintiff’s Evidence at Trial
In support of his claim, the plaintiff called evidence from his wife, Mr Shackal, Mr Durmaz, Ms Aytuwar (an employee in Mr Durmaz’s shop at Tea Tree Plaza in April 2002 who had observed the plaintiff’s pre-collision manner of working) and Ms Yuceturk (who had observed the plaintiff on one occasion before the collision, and who, in her occupation as a translator, attended as an interpreter at many of the plaintiff’s medical consultations and medico-legal examinations).
The plaintiff led medical evidence from Dr Siaw, Mr Morrison, Dr Mills (a specialist occupational physician), Dr Bowater (a general practitioner at Port Hedland who examined the plaintiff in relation to his application for permanent residence) and from three other general practitioners whom he had consulted: Dr Mehta (in Adelaide) and Drs Singh and Pour (in Mildura). In addition, the plaintiff was permitted to tender the report of a Dr Papps under s 34C of the Evidence Act 1929 (SA) without calling him to give oral evidence, and to tender reports written by the late Mr G Lewis, a surgeon, who assessed the plaintiff for medico-legal purposes at the request of the defendant’s insurer.
At the commencement of the trial, counsel for the plaintiff was granted permission to amend the plaintiff’s statement of claim to include an allegation that the plaintiff also suffered from a “conversion disorder and chronic pain disorder”. This was in addition to the condition of “severe depressive disorder and/or adjustment disorder with a depressed mood” which had already been pleaded. Counsel for the plaintiff opened his case by indicating that some of the plaintiff’s symptoms and presentation were attributable to a conversion reaction:
The expertise that we will be relying on for the plaintiff suffering a conversion disorder is in the evidence of Dr Galletly who is a psychiatrist and her diagnosis was a conversion disorder rather than a pain disorder which was raised by one of the other psychiatrists for the defence, but she diagnosed and she was quite convinced that he was not consciously exaggerating symptoms, but there was an unconscious exaggeration which she says is attributable to a conversion disorder and she will go through all of the criteria which one needs to fulfil for a doctor to arrive at a diagnosis of conversion disorder. She will give evidence that he should continue to have rehabilitation and ongoing psychiatric assistance.[3]
[3] T17-18.
The perceived importance of Dr Galletly’s evidence to the plaintiff’s case was also made apparent by the submission of the plaintiff’s counsel part-way through that part of the plaintiff’s cross-examination relating to his activities as shown on the surveillance videos. Counsel said:
Can I suggest that the key to this whole case really lies in the evidence of Dr Galletly and the evidence of the plaintiff suffering a conversion disorder.[4]
However, after Dr Galletly was shown (out of Court) the defendant’s surveillance footage of the plaintiff, counsel for the plaintiff told the trial Judge “I have instructions not to call Dr Galletly” and he was given permission to withdraw her written report from the tendered book of medical reports.
[4] T359.
The plaintiff did not then adduce any evidence at all from a psychiatrist nor any other evidence to support a diagnosis of conversion reaction. However, both Drs Mehta and Pour gave evidence concerning the plaintiff’s depression.
In the opening, counsel also said that the plaintiff would adduce evidence from Ross Tippett, a physiotherapist:
We then have evidence from Ross Tippett, who is a [physiotherapist], who carried out a functional capacity evaluation and activities of daily living evaluation and came to the conclusion that because of the serious injuries the plaintiff received in the motor vehicle accident he will need certain assistance and care and various services and he goes into some detail …. It’s mainly related to personal care, equipment and ongoing care that he will require into the future.[5]
However, after Mr Tippett saw (out of Court) the defendant’s surveillance footage, he changed his opinion. He described the plaintiff’s clinical presentation to him in August 2007 as having been “significantly different” from his capacity as shown on the surveillance video. Mr Tippett concluded:
In my opinion, there is sufficient evidence contained within the surveillance video to indicate that [the plaintiff] has sustained minimal, if any, functional limitation or incapacity of his right forearm and right hand as a result of the subject accident. It is also my opinion that there are minimal, if any, functional limitations arising from [the plaintiff’s] reported right shoulder and low back injuries.[6]
Subsequently, Mr Tippett was called to give evidence in the trial by the defendant.
[5] T18.
[6] Exhib B13.
Defendant’s Evidence at Trial
In addition to Mr Tippett, the defendant led evidence from Dr Haynes (a consultant occupational physician) and from two psychiatrists, Drs Begg and Dorrington.
Dr Haynes accepted that the plaintiff may have some residual discomfort but thought that he did not have any significant restriction of movement. He thought that the plaintiff should be able to perform Snack Bar work of the kind in which he had engaged before the collision on 11 April 2002. He considered that the plaintiff’s physical presentation was not explicable by any known organic condition and that the plaintiff was exaggerating his symptoms. Although Dr Haynes did not see the whole of the surveillance footage, he was confirmed in his views by those portions which he did see.
At one time, Dr Dorrington did consider that the plaintiff suffered from a conversion disorder or a pain disorder. However, having viewed the surveillance footage, she considered it “most likely” that the plaintiff was “intentionally producing or feigning the symptoms”. She considered that the plaintiff was malingering and accordingly that a psychiatric diagnosis was inappropriate.
Before seeing the surveillance footage, Dr Begg considered that the plaintiff did suffer from a chronic pain disorder, and was willing to acquiesce in Dr Galletly’s diagnosis of a conversion disorder. However, after seeing the surveillance footage, Dr Begg revised his opinion. He considered that the plaintiff was intentionally feigning the symptoms.
The defendant also led evidence from four employees of the Mega Snack Bar who had worked with the plaintiff in that shop. None of those employees observed any restriction of movement in the plaintiff’s right hand or arm.
Finally, the defendant called the investigation agents who had made observations of the plaintiff and who had taken the surveillance footage.
The Decision of the Judge
As noted, the defendant’s case at trial was a major challenge to the plaintiff’s credibility and reliability. Despite the challenge, the Judge accepted that the plaintiff was “an honest witness who was endeavouring to answer questions as best he could”.[7] The Judge concluded:
…In my view, his statements in court and his demonstrations in court as to the level of his pain and the extent of his disability were honest. I am satisfied that he did not intentionally mislead any medical practitioner or Mr Tippett whom he consulted in connection with this accident.[8]
[7] Ciftci v Herreen [2010] SADC 7 at [311].
[8] Ibid.
These were important findings as the Judge considered that even in the absence of supporting medical evidence, it was open to her to act upon her own assessment of the plaintiff’s honesty and to award damages on the basis that he did truly suffer the pain and restriction of movement which he reported. In this respect the Judge referred to the approach of Bollen J in Glavinas v Holden’s Motor Company Limited:[9]
The plaintiff has in the physical sense recovered from his injuries. He should be fit to work with no more than some minor aches and pains. He has no psychiatric illness. Is he pretending? Is he malingering? Mr Beard thinks so. He is not a psychiatrist but he is experienced in examining claimants with nebulous complaints. I think his views are consistent with those of Mr Fry.
As so often happens much, perhaps all, depends on the truthfulness of the plaintiff. In addition to the starkly expressed opinion of Mr Beard there is certainly much to call in aid of the suggestion of feigned pain and of malingering. And people should be able to cast aside false beliefs once given adequate information proving the falsity. People should be able to control anger. But what if they cannot do these things? If there be no precise psychiatric condition and if there be complete physical recovery does the claimant fail despite genuineness of his symptoms. By genuineness I mean pain and incapacity truly felt and experienced by the particular plaintiff despite the inability to define the cause by physical or psychiatric definition. I do not think that a genuine claimant should suffer through lack of label. The mind, temperament and character of a man or woman does not move and have its being only in elements or areas capable of strict categorisation as physical or psychiatric. If there be something about the victim of a tort which truly makes him feel pain and thereby be incapacitated he or she is, in my opinion, entitled to adequate damages in compensation for the effects of that tort even though the symptoms cannot be defined by any conventional label.[10]
As can be seen, Glavinas was a case in which the Court awarded damages for the pain and suffering and restriction of movement reported by a plaintiff who was assessed by the Court to be honest, even though the medical evidence could not provide an explanation for his symptoms.
[9] (1991) SASC 3089.
[10] Ibid at [45]-[46].
However, in the present case the Judge also considered that there was medical evidence supporting the plaintiff’s complaints. This was the evidence of Mr Morrison and Dr Mehta, whose evidence she accepted. In this respect the Judge said:
I have carefully considered and weighed up all of the medical evidence. I found Dr Morrison to be a most impressive witness. He was the plaintiff’s treating orthopaedic surgeon. I bear in mind that Dr Pour was the only medical witness who was able to assess and treat the plaintiff by communicating with him in his own language. I prefer the evidence of Dr Morrison to that of Dr Haynes who accepted that he did not view the original x-rays and is not an orthopaedic surgeon.
I consider Dr Morrison’s evidence to be important. He expressed the view that there was an ongoing cause of pain, namely arthritis which had become symptomatic as a result of the accident. Although it may have become symptomatic absent the accident, it is significant that there was indeed an organic source of at least some ongoing pain. I prefer the evidence of Dr Morrison to that of any of the defendant’s medical witnesses where there may be a conflict. I bear in mind that the medical witnesses did not have the opportunity to learn of or hear the plaintiff’s explanations for his activities that they observed on the video before expressing their views. For example, Dr Dorrington and Dr Begg both said that they considered that it was unnecessary to hear any explanation from the plaintiff before forming the opinion that he was malingering. It is plain that Dr Dorrington formed an unfavourable view of the plaintiff from the outset. Having heard the plaintiff’s explanations, I accept them. I am satisfied that he is not malingering. I am satisfied that he genuinely experienced pain and disability in the manner that he described and continues to do so. I accept the plaintiff’s evidence that following medical advice, he determined to try and work or to be as active as possible. He had “good days and bad days”. He took medication to assist him to cope with pain. He endeavoured to give the appearance that he was ‘normal’ and he worked or conducted himself despite being in pain whilst doing so. I accept the evidence of Dr Mehta that in his view, the plaintiff was motivated to work and prepared to take a risk and work with pain.[11] (Emphasis added)
[11] Ibid at [312]-[313].
The Judge accepted that the evidence of Mr Shackal and of the plaintiff’s wife was honest and reliable.
The Judge rejected the evidence of the four former co-workers in the Mega Snack Bar, considering that the evidence of each was influenced by her dislike of the plaintiff. In relation to the plaintiff’s activities at the Mega Snack Bar, the Judge said:
I find that where there is conflict between the evidence of the plaintiff and Mr Shackal, and the defendant’s witnesses, I prefer the evidence of the plaintiff. I am satisfied that the plaintiff was at the Mega Snack Bar for extended periods, and that he performed various tasks including serving customers, on a voluntary basis within the limitations of his injury. Even though he experienced pain, he was endeavouring to ‘kill time’ and to give himself an outlet. I accept the plaintiff’s explanations in relation to his role and the tasks he undertook at the Mega Snack Bar.[12]
On the basis of this assessment of the evidence the Judge concluded:
I am satisfied that the plaintiff’s evidence was honest and reliable in relation to both his past and current experience of pain and his disabilities.
I am satisfied that he genuinely experienced pain and disability in the manner described and continues to do so.[13]
[12] Ibid at [32].
[13] Ibid at [323]-[324].
The Judge then said that she was satisfied that the plaintiff’s right wrist had been asymptomatic prior to the collision on 11 April 2002. The spraining injury sustained in the collision caused the underlying condition in the right wrist to become symptomatic, and was in turn the cause of the surgery performed by Mr Morrison on 28 February 2003.[14] On this basis, the Judge considered the collision of 13 April 2002 to be the significant cause of the plaintiff’s ongoing experience of pain and restriction of movement.[15]
[14] Ibid at [331], [334].
[15] Ibid at [335].
The Judge expressed her conclusions about the nature and extent of the plaintiff’s disability in the following passages:
…I am satisfied that the plaintiff continues to experience pain in his wrist and arm. I am satisfied that he is not consciously exaggerating his experience of pain or his symptoms.
I am satisfied that although the plaintiff continues to experience shoulder and back pain, these injuries do not contribute significantly to his pain and suffering.
I am satisfied that before the accident, the plaintiff was in good physical health. He assisted his wife with cooking, washing and cleaning the house. I am satisfied that his injured wrist was asymptomatic.
I am satisfied that the plaintiff suffered pain and discomfort to the right wrist, back, and right shoulder following the 2002 accident. Although the extent of the physical basis for his pain is now limited, I am satisfied that the plaintiff’s experience of pain is genuine and his consequent disabilities associated with his experience of pain, are real to him. I find that he suffered and continues to suffer a significant disability in relation to his right wrist and arm. I accept the evidence of the plaintiff and of his wife in relation to the impact of the plaintiff’s disability upon his daily life and functioning. I am satisfied that the plaintiff continues to suffer from clinical depression.[16] (Emphasis added)
[16] Ibid at [347]-[350].
The Assessment for Pain and Suffering
The Judge considered it appropriate in the plaintiff’s case to assign the number 15 on the scale fixed by s 35A(1) of the Wrongs Act 1936 (SA). This resulted in an award of $25,650 for the plaintiff’s non-economic loss.[17]
[17] Ibid at [353].
Past Economic Loss
The Judge considered that the plaintiff was wholly incapacitated for work as a kitchen hand until at least mid 2005. Thereafter, the Judge considered that the plaintiff had a 50 per cent loss of earning capacity.[18] The Judge was satisfied that, but for the collision, the plaintiff would have been employed by Mr Durmaz in his Tea Tree Plaza shop for eight hour per day for five days a week, earning between $500 and $550 gross each week. She considered that this meant that the plaintiff would have had earnings of between $18,200 and $20,000 each year after tax.[19] On this basis, the Judge awarded the plaintiff damages for past economic loss in respect of the period from April 2002 to June 2005 of $60,000.
[18] Ibid at [365].
[19] Ibid at [369].
In respect of the period from June 2005 to judgment in January 2010 the Judge assessed the plaintiff’s loss of between $36,000 and $40,000. It is not entirely clear how the Judge made this assessment. I think it probable that, having assessed the annual net loss in respect of the period before June 2005 at $18,200 to $20,000 net per annum, the Judge halved those figures, and then multiplied the result by 4.5 (for the number of years from June 2005 to the time of judgment), reducing the sum so derived by a small amount for adverse contingencies.
In any event, after deducting the sum of $4,640 which the plaintiff acknowledged earning in the Mega Snack Bar between mid 2005 and October 2007, the Judge awarded $96,000 for past economic loss.[20]
[20] Ibid at [365].
Future Economic Loss
The Judge considered that the plaintiff would continue to suffer a significant ongoing incapacity for work as a result of the collision caused injuries. In making her assessment, the Judge proceeded on the basis that the plaintiff had a loss of earning capacity of 50 per cent. Accordingly, she halved the range of $18,200 - $20,000 per year and applied an actuarial multiplier calculated by reference to the date upon which the plaintiff would turn 65. After making a reduction of 20 per cent for adverse contingencies, and rounding off, the Judge awarded the plaintiff the sum of $100,000 for future economic loss.[21]
[21] Ibid at [371]-[376].
The Approach on the Appeal
The defendant’s appeal involves challenges to the Judge’s factual findings. These findings were, as indicated above, based very much upon the Judge’s assessment of the credibility and reliability of the respective witnesses.
The principles to be applied on an appeal from such a decision, and the appellate restraint which is appropriate, are well established. This Court must be conscious that the trial Judge had the considerable advantage, not available to this Court, of seeing and hearing all the witnesses. In relation to the plaintiff, that is a very significant consideration. His evidence extended over some 13 sitting days. In part this was because his evidence was given through an interpreter, in part because of the lengthy cross-examination based on the surveillance film, and in part because numerous witnesses were interposed during his evidence. The very length of time that the plaintiff was in the witness box, together with the fact that the Judge had the advantage of being able to assess his evidence almost contemporaneously with that of many others, gave the trial Judge a considerable advantage.
Nevertheless, this Court is obliged to conduct a real review of the evidence. The approach required of this Court is that stated in the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy:[22]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
…
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.[23] (Citations omitted)
[22] [2003] HCA 22; (2003) 214 CLR 118,127.
[23] Ibid at [25], [27]-[29]. The trilogy of cases to which the Court referred in [27] is Jones v Hyde (1989) 63 ALJR 349 at 351-2; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 482-3.
In summary, this Court is required to conduct a real review of the evidence at trial and of the trial Judge’s reasons. Proper allowance must be made for the advantage which the Judge had of being able to see and hear the witnesses and to assess the “feel” of the trial. However, if this Court considers that the Judge’s conclusions are inconsistent with facts incontrovertibly established, or with uncontested testimony, or are glaringly improbable, this Court is empowered to, and indeed should, intervene.
Inconsistencies in the Plaintiff’s Presentations
The defendant contended that the Judge’s conclusion that the plaintiff was an honest witness who had described and demonstrated truly the level of his pain and the extent of his disability was inconsistent with the facts incontrovertibly established by the surveillance film. Similarly, the defendant submitted that the Judge’s conclusion that the plaintiff had not intentionally misled any medical practitioner or Mr Tippett was plainly inconsistent with the observations made of him before and after his attendances at several medical appointments.
In addition, the defendant submitted that several of the Judge’s conclusions were against the weight of the evidence. I understood this to be a submission that the Judge’s findings were “glaringly improbable”.
There is substance in these submissions.
July 2007 Surveillance
Investigators retained by the defendant’s insurer took a substantial amount of surveillance video of the plaintiff at times when he was unaware that he was being observed. The footage commenced in February 2005 at Mildura, showing the plaintiff at a family picnic and later working in a vineyard. Other footage related to the plaintiff arriving at, or departing from, medical appointments. There is extensive footage of the plaintiff’s activities at the Mega Snack Bar.
It is not necessary to refer in detail to all of the surveillance film. That is because, for present purposes, the surveillance film taken of the plaintiff at the time of three medico-legal examinations in late July 2007 illustrates starkly the inconsistency between the plaintiff’s presentation to examining doctors, and his account in Court of his daily activities, on the one hand, and his actual activities and capacity, on the other.
The defendant’s insurers arranged medico-legal examinations with Dr Haynes on 24 July 2007 at 1.00 pm; with Dr Begg on 25 July 2007 at 12 noon; and with Mr Lewis on 26 July 2007 at 8.30 am. Each of Drs Haynes and Begg and Mr Lewis had consulting rooms at 18 North Terrace, Adelaide. The plaintiff kept each of those appointments.
The defendant commenced a period of surveillance of the plaintiff on Thursday, 19 July 2007. The plaintiff was observed working in the Mega Snack Bar on that day from 7.30 am until 9.00 am (when the investigator ceased observations). His activities included serving customers, making coffee, and preparing food, in each case using both arms and hands. Some, but not all, of his activities were filmed.
Surveillance was undertaken again on the following day (20 July). When the investigator (Mr I Cadd) arrived at 7.00 am the Mega Snack Bar had already opened, but the plaintiff was not present. He arrived in his car at 7.26 am. Mr Cadd observed the plaintiff for the whole of the day, filming his activities at various times. The plaintiff remained in the Snack Bar until just after 4.50 pm and was filmed engaging in food preparation and serving customers, again, in each case using both hands and arms. His activities involved the plaintiff flexing, extending, pronating and rotating his right wrist. As on the other days upon which the plaintiff was observed at the Mega Snack Bar, he was wearing the Snack Bar’s uniform. At 4.55 pm the plaintiff drove his car to his home.
Mr Cadd attended again at the Mega Snack Bar on Saturday, 21 July 2007 at 9.00 am. He saw the plaintiff’s car in the carpark and the plaintiff in the Snack Bar carrying containers with food from a refrigerator to a table. Mr Cadd watched the plaintiff in the Snack Bar until 11.00 am, and then went to the carpark. When Mr Cadd left the Shopping Centre at 12 noon, the plaintiff’s car was still in the carpark.
A different investigator, Ms A Cadd, undertook surveillance of the plaintiff on Monday, 23 July 2007 and Tuesday, 24 July 2007. Ms Cadd went to the Mega Snack Bar at 7.15 am on 23 July and noted that the plaintiff was there already. She kept him under observation in the Snack Bar until 4.44 pm when he went to his car to go home. During the day Ms Cadd observed the plaintiff serving customers, preparing food or drink and engaging in cleaning activities in the Snack Bar. At various times she took surveillance film of the plaintiff’s activities. The film shows the plaintiff using a utensil in his right hand at one stage to scoop ice cream from a container. This activity seemed to require the use of some force.
Ms Cadd attended at the Greenacres Shopping Centre at 7.00 am on Tuesday, 24 July 2007. She saw the plaintiff arrive in his car at 7.41 am and enter the Snack Bar. He worked preparing food and drinks and serving customers. At about 12.30 pm he left the Snack Bar and drove in his car to 18 North Terrace, Adelaide for his consultation with Mr Haynes.
At the completion of the consultation the plaintiff drove back to the Mega Snack Bar, arriving at 1.40 pm. He remained there until 4.25 pm. From about 3.30 pm, the plaintiff participated in the cleaning up of the Snack Bar. Ms Cadd took film of the plaintiff at various times during the day, showing him serving customers, carrying out food and drink preparation, cleaning, and engaging in ancillary activities in the Snack Bar, all without any indication of pain or apparent restriction of movement.
On 25 July 2007, Mr Cadd resumed observations of the plaintiff. He went to the Mega Snack Bar at 7.00 am. The plaintiff was not then present but arrived in his car at 7.26 am. The plaintiff remained in the Snack Bar until 11.21 am, at which stage he went to his car, and removed his t-shirt (the Snack Bar uniform) by pulling it over his head. The plaintiff then drove to Dr Begg’s rooms. At the conclusion of the examination, the plaintiff drove back to the Mega Snack Bar. He then put back on the Snack Bar uniform t-shirt. The plaintiff remained at the Snack Bar until 4.42 pm. At about 4.00 pm, Mr Cadd saw the plaintiff commence packing up the signs, chairs and tables and blinds associated with the Snack Bar. When the shop was closed, the plaintiff drove away from the shopping centre in his car. Mr Cadd then ceased his observations for the day.
Mr Cadd took only a small amount of film on 25 July, apparently because of the large amounts of film taken of the plaintiff working in the Snack Bar on the previous days. However, the film of 25 July 2007 showed the plaintiff’s arrivals at, and departures from, the Mega Snack Bar, the removal of his t-shirt, and his arrival at, and departure from, 18 North Terrace, Adelaide.
Ms A Cadd resumed the surveillance on Thursday, 26 July 2007. She went to the Greenacres Shopping Centre at 7.37 am. Shortly afterwards she saw the plaintiff leave the Mega Snack Bar and drive away to his appointment with Mr Lewis. After the consultation was completed, the plaintiff drove back to the Greenacres Shopping Centre, entering the Snack Bar at 9.20 am. He remained there until 2.53 pm. During the day Ms Cadd observed him at various times engaged in food preparation. At 2.53 pm the plaintiff drove into the City of Adelaide where Ms Cadd lost contact with him.
The investigators then ceased this period of surveillance of the plaintiff.
The plaintiff did not display any limitation of movement in the activities filmed by the investigators. It is not apparent that any of his right arm movements were accompanied by pain.
On the basis of the surveillance film taken between 19 July and 26 July 2007, an independent observer would not suspect, let alone conclude, that the plaintiff had any disability in his right arm or shoulder at all.
Contrast of the Surveillance Observations and the Presentation to the Doctors
The observations of the plaintiff from Thursday, 19 July to Thursday, 26 July 2007 contrast starkly with his presentations to Drs Haynes and Begg and to Mr Lewis. The plaintiff had the assistance of Ms Yuceturk during each consultation, and there was no suggestion of any misunderstanding or difficulty in communication.
The plaintiff did not mention his activities at the Mega Snack Bar to any of the medical practitioners and, before attending each examination, removed the t-shirt (the Snack Bar’s uniform). In cross-examination, the plaintiff said that this was because the t-shirt was smelly and he wished to present in a clean manner. Whether this be the correct explanation or not, the removal of the t-shirt deprived the doctors of a visual cue that the plaintiff may be engaged in snack bar work.
The plaintiff gave accounts to the doctors suggesting that he was disabled, was unemployed, was generally inactive, and that movement of his right hand and wrist was so painful that he avoided activities requiring such movements.
On 24 July the plaintiff told Dr Haynes that he continued to be unemployed and that he had not been working since last examined by Dr Haynes on 10 March 2005. He described his current situation to Dr Haynes as follows:
Mr Ciftci reports ongoing pain around the right wrist, with pain radiating to the right forearm and to the shoulder, neck and upper back. He described numbness over the dorsum of the right hand.
He said that he is able to drive. He is able to dress himself. At home he undertakes minimal work. He does not have a garden and, therefore, does not work in the garden or mow the lawn.
When questioned in regard to his day-to-day activities, he said that he is not doing much. He remains at home. Occasionally he visits friends. He takes his children to school on a daily basis.
When asked to demonstrate his range of wrist movements, the plaintiff indicated to Dr Haynes that he had virtually no active movement in the right wrist, contrasting this with the normal range of movement in the left wrist. He also claimed to have restriction of movement in the right shoulder.
Dr Begg recorded the following history:
Mr Ciftci said that life was no longer normal and he was continuing to struggle with the constant pain in his right wrist. He said his hand effectively does not work at all. There is constant numbness. After describing the feelings associated with this he described being unhappy and having an empty life.
His wife lives at home undertaking home duties. She can become angry at his lack of ability but is generally supportive. … He is saddened when the children comment on his lack of ability due to hand pain. He socialises with friends but not a lot. …
When distressed by his circumstances he will sometimes take himself apart from the family, go in to a quiet park and thinking about his situation.
Dr Begg did not examine the plaintiff’s right hand but observed that the plaintiff protected it when he was walking by holding the hand close to his side. Dr Begg did not see any wrist movement during the interview.
Mr Lewis recorded the following account from the plaintiff as to his activities:
Mr Ciftci is currently not working. He said that he takes his children to school and spends the remainder of his time sitting around or walking around. At one stage he was working an hour a day in a friend’s Snack Bar but he could not continue with this because of pain in his right arm.[24]
In relation to his current symptoms and disabilities, the plaintiff reported to Mr Lewis as follows:
Mr Ciftci reports that his main ongoing problem is with respect to his right arm. He has persistent pain centred at the back of the right wrist which radiates into his hand and up his arm into the right side of his neck. He said that the whole of his right arm feels paralysed and often swells. His hand is often purplish in colour. The pain is present all the time and it’s made worse by an attempt at activity. He said that he picks up objects with his left hand. He cannot do up buttons with his right hand or to hold a cigarette and does not hold eating utensils with his right hand. He said that because of the problem with his right arm he does very little around the home at all and his wife performs all the household tasks.[25]
On physical examination of the right hand, Mr Lewis noted:
On normal examination wrist and finger movements appeared 75% of normal but very weak. Power of grip in his right hand was extremely weak. He was observed to pick up objects of various sizes and he appeared unable to pick up virtually anything at all with his right hand. He said that this was because of increased pain with this type of activity.[26]
[24] Exhib P31, report 31 July 2007, at p2.
[25] Ibid.
[26] Ibid at p3.
It was not suggested that any of the doctors had recorded inaccurately what they were told by the plaintiff, or that their observations of him during their respective examinations were erroneous. That the plaintiff did tell the doctors the matters outlined above and did display to them the limitation of movement which they recorded can be taken to have been established incontrovertibly.
The surveillance film also established some facts incontrovertibly. The plaintiff admitted that he was the person shown in the surveillance film and also admitted engaging in some activities in the Mega Snack Bar.
During the period 19 July to 26 July 2007 the plaintiff had the appearance of being a full-time employee at the Snack Bar, arriving at about 7.30 am and leaving at about 4.00 pm. The film indicates that, while engaged at the Snack Bar, the plaintiff did not have any of the claimed restriction of movement which he reported to the doctors and which he described to the Court. Even after several hours of work the plaintiff did not display any of the restriction of movement which he described to the doctors and in his evidence at trial.
The surveillance film and the investigators’ observations indicate that the plaintiff’s statements to the doctors were untrue and that he was present and actively engaged at the Snack Bar much more extensively than he acknowledged in his evidence. The plaintiff’s failure to tell the doctors of his activities at the Mega Snack Bar is particularly striking given that on each of 24, 25 and 26 July 2007, he had left the Snack Bar to attend the medical appointment. It is not possible to reconcile either the plaintiff’s history or presentation to Dr Haynes, Dr Begg or Mr Lewis on 24, 25 and 26 July 2007, nor his evidence in Court, with his activities as shown in the surveillance film taken in the period from 19 to 26 July 2007.
It is true that surveillance film was not taken of the plaintiff for the whole time during which he was observed at the Mega Snack Bar between 19 and 26 July 2007. However, extensive footage was taken, sufficient to indicate the nature and extent of the plaintiff’s activities.
It was suggested to Ms Cadd in her cross-examination that she may have mistaken the plaintiff for another male who also worked in the Mega Snack Bar. Ms Cadd denied that that had occurred. I consider the suggestion highly improbable. The other male shown in the surveillance film is of distinctly different appearance, being older, greyer, shorter and slimmer than the plaintiff. There is no difficulty in distinguishing the plaintiff from the other man in the surveillance film.
On appeal, senior counsel for the plaintiff accepted that it was incontrovertible that the plaintiff had not told the truth to the doctors. However, he submitted that the inconsistencies may be explicable by “cultural factors” or “cultural issues”. The exact nature of these factors or issues was not explained. Counsel did, however, refer to Mr Morrison’s observation that some ethnic groups appear to believe that it is necessary to demonstrate to a doctor more symptoms in order to emphasise the seriousness of their complaints.
The Judge did not advert to this issue. In my opinion, whether the identified “cultural issue” or some other factor be the explanation for the plaintiff’s untruths to the doctors does not matter. It is plain that the plaintiff lied to the doctors and, even if the identified cultural issue be the reason, that he did so in order to deceive them.
Plaintiff Misleads Other Practitioners
The surveillance film indicates that the plaintiff misled not only the medical practitioners retained by the defendant’s insurer, but also his treating doctors and those retained by his solicitors in relation to the litigation.
Dr Mehta provided four reports to the plaintiff’s solicitors. It is the two reports dated 5 July 2007 and 10 August 2007[27] which are relevant presently. The first of those reports was written just after Dr Mehta saw the plaintiff on an unidentified date in July 2007. In that report Dr Mehta said:
[27] Exhib P5A-4.
[7]Mr Ciftci hasn’t worked since the accident and is unlikely to be able to carry out the work he was doing prior to the accident. He could perhaps do some light supervisory work, which should not involve manual handling.
[8]Yes, I agree he will [be] totally and permanently incapacitated from carrying out labouring work.
[9]Since the accident Mr Ciftci has [been] unable to carry out the normal household work that he was doing prior to the accident. He also hasn’t done any work either in the garden or things like vacuuming or washing up.
Dr Mehta reviewed the plaintiff on 8 August 2007 and then reported to the plaintiff’s solicitors:
I confirm that since his motor vehicle accident he has been unable to engage in any kind of manual labouring work including kitchen hand or security guard.
This is consistent with the injuries he sustained in the accident to his wrist (R) shoulder, neck and lower back.
In his cross-examination, Dr Mehta said that he had been unaware of the plaintiff’s work at the Mega Snack Bar, indicating that the plaintiff had also kept it from him.
On 29 August 2007, Mr Tippett, the physiotherapist, carried out a “functional capacity evaluation” of the plaintiff at the request of his solicitors. Mr Tippett noted that the plaintiff held his right arm in a protective position, initiating minimum active movement and frequently using his left hand to assist right hand and elbow movements. Although right-handed, the plaintiff used his left hand to write. Mr Tippett noted that the plaintiff was unable to grip or grasp or lift any of the test weights with his right hand (but could with the left hand) and that his right hand grip and pinch strengths were severely reduced. He considered that the capacity of the plaintiff to work was limited to use of the left hand. Mr Tippett concluded that the plaintiff had a “secondary learned non-use or avoidance of right hand activity” as a result of his wrist injury.
The plaintiff did not tell Mr Tippett of his work at the Mega Snack Bar. As noted earlier, Mr Tippett revised his opinion after he had viewed the surveillance film and, when called by the defendant at the trial, said that he considered that the plaintiff had minimal, if any, functional limitations in his right arm.
Dr Dorrington assessed the plaintiff on 28 August 2007 at the request of his solicitors. The plaintiff had the assistance of a Turkish interpreter during the consultation. Dr Dorrington asked the plaintiff how he spent his days and reported his responses as follows:
… He told me that sometimes he walks his children to school and he may then go to a Chinese supermarket and then go home and lie down. Sometimes he takes his youngest child to the park. He may watch daytime television but denied that he had any favourite TV shows. He told me that he didn’t have many friends and that he only occasionally went to coffee with them. He sometimes goes to watch his sons play soccer. When I asked what activities he and his wife did together he answered “Not much” and said that sometimes they go for a walk together. Mr Ciftci told me that he owns a motor vehicle and that he sometimes drives to the supermarket or takes his family on outings to the beach etc. Mr Ciftci told me that he had no particular hobbies or interests and that he did not housework and no gardening. When I asked him if he was getting bored he answered “Sometimes”.
Dr Dorrington described the plaintiff as walking with “an exaggerated slow gait with his right arm hanging flaccid at his side”.
The plaintiff did not tell Dr Dorrington at all about his activities at the Mega Snack Bar.
The plaintiff was examined by Dr Mills on 3 September 2007 at the request of his solicitors. He told Dr Mills that he had not worked since the accident although he had attempted a resumption of work on a farm, in a restaurant and doing cleaning work but had been unable to continue with any of these attempts because of a painful, swollen right wrist and low back pain. He described unremitting right wrist pain. Again, the plaintiff did not tell Dr Mills at all of his activities in the Mega Snack Bar.
The plaintiff did mention his work at the Mega Snack Bar in the affidavit of loss sworn by him pursuant to the District Court Rules (1992) r 46.15. However, he described his work as being one hour per day from 7.00 am to 8.00 am four days a week, and said that all that he was required to do was to open up the shop in the morning, switch on some appliances and then wait until the employer arrived before going home.[28] This was not a truthful account.
[28] Exhib P30.
Other Surveillance
Although it is not necessary to refer to the remaining surveillance film in detail, I note that both the extent and nature of the plaintiff’s activities in the period from 19 July to 26 July 2007, and the periods during which they were performed, are very similar to those activities of the plaintiff at the Mega Snack Bar observed and filmed by investigators in the period from 11 November 2005 to 18 November 2005 and from 5 September 2006 to 22 September 2006 (both dates inclusive). However, in the latter period, the investigators did not maintain continuous observations of the plaintiff, instead attending only for a short period at a different time each day. On each occasion the investigators confirmed (and filmed) the plaintiff’s presence and his participation in activities within the Snack Bar.
Judge’s Finding of Plaintiff’s Honesty Unsound
In her reasons, the Judge did refer to the surveillance film, to Mr Morrison’s evidence concerning the effect of the film, and to the defendant’s submissions that the videoed observations of the plaintiff undermined his credibility fatally. The Judge did not, however, attempt any reconciliation of the plaintiff’s presentation in the surveillance film with his presentation to the medical practitioners or with his evidence and presentation in Court.
In my opinion, the Judge’s conclusion that the plaintiff did not intentionally mislead any medical practitioner or Mr Tippett is inexplicable. The conclusion is inconsistent with facts “incontrovertibly established”, ie, the true extent of the plaintiff’s activities in the Mega Snack Bar and his undoubted failure to inform medical practitioners of his work. The plaintiff’s misleading of the medical practitioners and of the Court cannot be attributed to oversight, faulty memory, misunderstanding, communication difficulties, psychiatric condition, the plaintiff having “good days and bad days”, or the plaintiff having taken painkilling medication.
The plaintiff did intentionally mislead several of the doctors as well as Mr Tippett, and the Judge should have found that that was so. The Judge should also have found that the plaintiff’s demonstrated dishonesty brought into question the reliability of his evidence more generally.
As previously noted, the Judge’s assessment of the plaintiff’s honesty was important to her assessment. Accordingly, I am satisfied that the defendant has established a proper basis upon which this Court may intervene.
Assessment by Reference to Evidence of Mr Morrison and Dr Mehta
The plaintiff submitted that even if the Judge’s conclusion that he was an honest witness who had not set out to mislead any doctor was unsound, this Court nevertheless should not interfere with her award. He referred to the Judge’s acceptance of Mr Morrison’s evidence, emphasising that not only was Mr Morrison the treating surgeon, he was the only surgeon who gave oral evidence at the trial. In addition, the plaintiff referred to “objective” features of the evidence which demonstrated that he did have some genuine underlying pathology. He submitted that the Judge’s award, viewed objectively, was modest and emphasised that the appeal was against the award, and not the Judge’s reasons.
Mr Morrison’s Opinions
Mr Morrison first saw the plaintiff at the QEH on 30 July 2002. He noted the old un-united fracture of the ulnar styloid and the distal radius together with a detached fragment of the ulnar styloid. X-rays also suggested the early development of arthritic changes at the fracture site.
Mr Morrison considered that it was the un-united fracture which was the principal cause of the plaintiff’s pain. He considered that the plaintiff’s symptoms could be ameliorated, but not ended, by removal of the fragment, and accordingly recommended the surgery. Unfortunately the operation on 28 February 2003 did not have the desired effect and, indeed, after the operation the plaintiff reported a worsening of his pain.
Before seeing the surveillance film, Mr Morrison accepted the plaintiff’s report of his symptoms as genuine (after making some allowance for the prospect of some exaggeration in the reporting of them as part of the plaintiff’s attempt to convince him of their severity). On the basis of the plaintiff’s account, Mr Morrison considered that the underlying condition in the right wrist which had been asymptomatic had been made symptomatic by the spraining injury in the collision. He considered that, but for the injury caused by the collision, the plaintiff would not have required the surgery which he performed on 28 February 2003.
The plaintiff’s right wrist was the principal focus of Mr Morrison’s attendances on him. However, he considered that the plaintiff had also suffered soft tissue strains to his right shoulder, neck and lower back, which accounted for the plaintiff’s complaints of pain in those areas.
Before seeing the surveillance film, Mr Morrison considered that the plaintiff was incapacitated from manual work, including work as a security guard or as a kitchen hand, and that he would have difficulty with many of the tasks in ordinary everyday living. This was primarily because of the condition of the right wrist, but also because of his right shoulder, back and neck injuries.
Mr Morrison assessed a residual impairment of 30 per cent in the plaintiff’s right lower arm, 25 per cent in the right upper arm, 15 per cent in the neck and 15 per cent in the lower back. At one stage he wondered whether the plaintiff also had a condition described as a regional pain syndrome, but even before the trial, had excluded it as a possible diagnosis. Mr Morrison also considered that the plaintiff had a non-organic aspect to his presentation, noting the diagnosis of conversion reaction made by Dr Galletly. As noted earlier, there was no psychiatric evidence to support a diagnosis of a conversion reaction. Mr Morrison did not consider that the plaintiff was deliberately and voluntarily feigning impairment. He considered the plaintiff to be totally incapacitated for unskilled manual work.
Mr Morrison accepted that the surveillance film indicated that the plaintiff had much greater capacity than he had demonstrated clinically. He said that having viewed the surveillance film he now had doubts that the plaintiff had the restriction of movement which he had reported during his clinical examinations.[29] He admitted having considerable doubts about the plaintiff’s complaints of pain and symptoms in the right hand and arm since seeing the surveillance footage and considered that the plaintiff’s residual impairments were much less than he had though previously.[30] Given the extent of the plaintiff’s activities as shown on the surveillance film, Mr Morrison thought it very difficult to make any quantification of the plaintiff’s impairment. Nevertheless, he considered that on the basis of the undoubted underlying pathology it was likely that the plaintiff would have some symptoms which would impair his capacity for heavy manual work.
[29] T539.
[30] T540-1.
On the basis of the plaintiff’s activities as shown in the surveillance film, Mr Morrison thought it unlikely that the plaintiff had any impairment at all in his cervical or lumbar spines, nor in his right shoulder.
Dr Mehta was not shown all of the surveillance film. He accepted, however, that not all of the plaintiff’s presentation could be attributed to an organic condition of the right arm. At the time he gave his evidence, he acquiesced in the opinion of Dr Galletly about a conversion reaction, although he acknowledged that he would defer to her expertise as a specialist psychiatrist in that respect.
On the basis of the limited surveillance footage which he did see, Dr Mehta still thought that the plaintiff was incapacitated for heavy manual work. He did not regard the Snack Bar work seen in the surveillance video as being of that nature.
Did the Collision Cause the Plaintiff’s Right Wrist Condition to Become Symptomatic?
The defendant challenged first the Judge’s conclusion that the collision had made the plaintiff’s right wrist symptomatic and had necessitated the surgery performed by Mr Morrison. He submitted that once it was accepted that the plaintiff had been untruthful in significant respects, the veracity of his claim that his wrist had been symptom free before April 2002 was also in question, and that the plaintiff had not proved that the collision had had any long-lasting effect.
In my opinion, this submission should not be accepted. The available evidence supported the plaintiff’s claim that his condition had been asymptomatic before April 2002. Dr Bowater had not detected any disability in the right wrist in his examination on 18 November 1999 at Port Hedland; the case notes of a general practitioner whom the plaintiff had consulted in Sydney did not reveal any complaint by the plaintiff about his right wrist; Dr Siaw observed the plaintiff’s forearm to be swollen with poor wrist movement when he first saw the plaintiff on 13 April 2002; and the plaintiff’s record of medical attendances after 11 April 2002 (and before he became involved in the medico-legal process) contrasts markedly with his pre-collision record of attendances. In addition, Mr Morrison considered that the X-rays indicated only the early stages of arthritic change, which was consistent with the plaintiff’s symptoms being asymptomatic.
In my opinion, the Judge’s acceptance of Mr Morrison’s opinion that the collision made symptomatic the previously asymptomatic underlying condition of the plaintiff’s right wrist has not been shown to be wrong. On the contrary, as I have indicated, it is supported by a number of other features in the evidence. The defendant did not discharge the evidential onus of establishing that the plaintiff’s symptoms resulted only from his pre-existing condition.[31]
[31] Purkess v Crittenden (1965) 114 CLR 164 at 168.
Of course, the assessment had to take account of the fact that the plaintiff’s underlying condition may, in the absence of injury, nevertheless have progressed to a disabling extent and that some other event may have caused the condition to become symptomatic. This was the point made by Barwick CJ in Wilson v Peisley:[32]
The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, while the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of unusual or of unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened. The Judge included this possibility in the vicissitudes of life which he was bound to bring to account in connection with the assessment of economic loss.[33]
[32] (1976) 50 ALJR 207.
[33] Ibid at 209.
Mr Morrison considered that, had it not been for the injuries sustained in the collision, the plaintiff would have been able to continue functioning at a reasonable level, but not indefinitely. He declined to offer an opinion as to when the underlying condition may have progressed to a stage at which, by itself, it may have limited the plaintiff’s activities, saying that that was “unpredictable”. Mr Morrison was not asked to elaborate on this answer. I understand it to mean that it may have taken many years for the underlying condition to develop to the stage of limiting the plaintiff’s activities but, equally, that it may have occurred over a much shorter time span.
A Revised Assessment
In my opinion, the evidence of Mr Morrison in particular, which was accepted by the Judge, suggested that the plaintiff’s damages should have been assessed on the following basis. The plaintiff had an underlying asymptomatic condition which was made symptomatic by the spraining injury suffered in the collision. The effect of the injury was to incapacitate the plaintiff for heavy labouring work and for the heavier and more vigorous forms of security guard work. The plaintiff remained able to perform many forms of manual work including the Snack Bar work, shop work, and driving work (such as courier work or driving a taxi). The injury is likely to have interfered with the plaintiff’s ability to do heavy vine pruning work or grape-harvesting work, but not work such as vine training. Such symptoms as the plaintiff has experienced are of a relatively low level kind and are likely to have interfered in only a minor way with his performance of the usual tasks associated with everyday living.
Given the plaintiff’s recent arrival in Australia, the absence of any tertiary qualifications recognised in Australia, and his language skills, it is likely that the plaintiff would, absent the collision, have exercised his earning capacity in some manual occupation. The effect of the collision-caused injury therefore was to limit the range of occupations and activities available to him, as he is now not suited for heavier or more strenuous work.
The assessment had to take account of the prospect that the plaintiff’s wrist condition may have progressed in any event to produce the effects described above and that some other event may also have occurred, producing similar symptoms.
The Judge did find that the plaintiff suffered from clinical depression. However, there was no evidence from a psychiatrist to support that conclusion. The general practitioners, Drs Pour and Mehta, thought that the plaintiff did suffer from depression and each had prescribed anti-depressant medication. The plaintiff’s misleading of his doctors, including his treating doctors, as outlined above, makes doubtful the basis for their respective diagnoses. In the light of the plaintiff’s activities as shown on the surveillance film, it cannot be said that any depression from which he does suffer adds materially to his pain and suffering, or to his incapacity. The condition is, in any event, amenable to treatment which is readily available to the plaintiff.
On this basis for the assessment, the Judge’s fixation of the number 15 on the scale prescribed by s 35A(1) of the Wrongs Act was generous. I would substitute the number 12, resulting in an award for non-economic loss of $20,520.
As to the past economic loss, it would have been appropriate, in my opinion, for the Judge to treat the plaintiff as totally incapacitated for work for a period after the accident. Perhaps erring in favour of the plaintiff, that period would have concluded by the end of 2003, rather than mid 2005 as the Judge found. That is because Mr Morrison said that he expected the plaintiff to have recovered from the surgery within three to 12 months. Thereafter, the plaintiff has had the partial loss of earning capacity described above.
It was not suggested that the Judge’s starting point of net annual earnings of $18,200-$20,000 per annum was inappropriate. I will take the higher figure as the Judge did not otherwise make any allowance for the increase in wages generally which has occurred since 2002. On this basis, the starting point for assessment of the net loss to the end of 2003 is of the order of $33,000. This is before any adjustment for contingencies.
Since the end of 2003, a range of occupations has been available to the plaintiff. Nevertheless, he is now precluded from some employments. If the sum of $33,000 just identified is deducted from the sum of $96,000 allowed by the Judge for past economic loss, that leaves $63,000. That is an allowance of approximately $10,000 per annum which, on one view, is not excessive. Allowance must also be made for the prospect that it may now be less easy for the plaintiff to obtain a job which is within his capabilities, and to retain such a job if he does successfully obtain employment.
On the other hand, there are a number of adverse contingencies affecting the assessment for each of these two periods. I have already mentioned some. In addition, even if the plaintiff had been able to take up the job with Mr Durmaz, it is unclear how long it would have continued to be available. Mr Durmaz sold his shop in 2003 and the plaintiff’s employment may therefore have come to an end in any event. It is also to be remembered that in the period of over two years after the plaintiff was granted permanent residency and before 11 April 2002, he had had only two jobs: a part-time job working seven hours per week and the four-day job at Mr Durmaz’s yiros shop.
Further, the vineyard work which the plaintiff has sought in and about Mildura is seasonal in nature and its availability may have been affected by the drought, water restrictions and over supply of grapes which has affected grape-growing activities generally. The mechanical harvesting of grapes and pruning of grapevines which is now commonplace is also likely to have limited the amount of the heavy harvesting or pruning work available to the plaintiff.
Further again, the plaintiff’s dishonesty means that the Court should be slow to accept at face value his evidence that his vineyard work was in the nature of “work trials” for which he received no payment. This is particularly so given the many “work trials” in which the plaintiff participated. On one occasion he went with Mr Suleyman Erdogan to the Northern Territory where the latter was apparently supplying contract labour. It seems inherently unlikely that he would have done so for an unpaid “work trial”. It also seems implausible that the plaintiff’s earnings from the Mega Snack Bar were only $4,640.00.
In all these circumstances, I consider that an appropriate award for the plaintiff’s past economic loss should not have exceeded $60,000.
Similar features affect the assessment of the plaintiff’s future economic loss.
The contingency that the plaintiff’s underlying condition may have progressed to an incapacitating state, or be made symptomatic by some other traumatic event assumes greater significance in the assessment of the future economic loss.
Mathematical precision is not possible. The Judge reached her award of $100,000 by applying an actuarial multiplier of 681.3 to an assumed weekly loss of $175.00-$192.50 net per week, and then deducting 20 per cent for adverse contingencies. Bearing in mind, that the plaintiff has a greater working capacity than the Judge assessed, I consider that her starting point was too high. I also consider that a greater reduction for adverse contingencies should be made. On this basis, I consider that the award for future economic loss should not exceed $60,000.
Some consequential adjustment should be made to the awards for past and future superannuation. I propose that the awards for these items should be $5,000 and $6,600 respectively.
Given that the plaintiff’s capacity is much greater than the Judge’s assessment assumed, the awards for voluntary services and household maintenance and gardening should be reduced by $1,500 and $1,000 respectively, and there should be no award for future personal care. The award for future travelling and medical expenses should be reduced to $2,000. The defendant did not suggest that the award for special damages should be reduced.
The award for interest should be reduced to $15,000.
The effect of the adjustments which I would make is to reduce the Judge’s award by $97,030.
In summary, I propose an award as follows:
$
Non-economic loss
20,520.00
Past economic loss
60,000.00
Future economic loss
60,000.00
Past superannuation
5,000.00
Future superannuation
6,600.00
Future travelling/medical expenses
2,000.00
Voluntary services
1,500.00
Future personal care
-
Household maintenance/gardening
1,000.00
Special damages
11,057.50
Interest
15,000.00
_________
Total
182,677.50
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Conclusion
For the reasons given above, I would allow the appeal; I would set aside the order of the Judge and enter judgment for the plaintiff in the sum of $182,677.50. I would hear the parties as to costs.
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