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
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- AGLC
- Herreen v Ciftci [2010] SASCFC 33
- Case
- [2010] SASCFC 33
- Decision Date
CaseChat Overview and Summary
Herreen v Ciftci concerned an appeal by the defendant against a damages award made by a trial judge to the plaintiff, who had suffered injuries in a motor vehicle collision. The plaintiff, a permanent resident of Australia who had arrived from Turkey, was a passenger in a vehicle that was struck from behind by the defendant's car. The plaintiff claimed to have sustained soft tissue injuries to his right wrist, shoulder, neck, and back, and later alleged he suffered from a conversion disorder and chronic pain disorder, in addition to depressive and adjustment disorders. The defendant's case at trial heavily challenged the plaintiff's credibility and the extent of his injuries.
The central legal issues before the appellate court were whether the trial judge erred in her assessment of the plaintiff's credibility and, consequently, whether the damages awarded were excessive. Specifically, the defendant sought to overturn the trial judge's findings of fact, which were based significantly on her assessment of the plaintiff's honesty and the genuineness of his reported pain and disability, even in the absence of definitive medical corroboration for all his symptoms.
The appellate court, comprising Doyle CJ, Bleby and White JJ, considered whether the defendant had discharged the onus of satisfying the court that it was appropriate to overturn the trial judge's findings of fact. The court noted that the trial judge had found the plaintiff to be an honest witness who was endeavouring to answer questions to the best of his ability, and that his statements and demonstrations of pain and disability in court were honest and not intentionally misleading. The trial judge had relied on the principle established in *Glavinas v Holden’s Motor Company Limited*, which allows for damages to be awarded for pain and suffering and incapacity genuinely felt and experienced by a plaintiff, even if the cause cannot be precisely defined by conventional physical or psychiatric labels, provided the plaintiff is assessed as being truthful. However, the defendant argued that the plaintiff's credibility had been successfully challenged.
The appellate court concluded that the defendant had made good its challenge to the trial judge's findings of fact regarding the plaintiff's credibility. Consequently, the court determined that the damages awarded by the trial judge should be reduced. The reasons for this conclusion were that the defendant had satisfied the court that it was appropriate to overturn the factual findings made by the trial judge concerning the plaintiff's honesty and the extent of his claimed disability.
The central legal issues before the appellate court were whether the trial judge erred in her assessment of the plaintiff's credibility and, consequently, whether the damages awarded were excessive. Specifically, the defendant sought to overturn the trial judge's findings of fact, which were based significantly on her assessment of the plaintiff's honesty and the genuineness of his reported pain and disability, even in the absence of definitive medical corroboration for all his symptoms.
The appellate court, comprising Doyle CJ, Bleby and White JJ, considered whether the defendant had discharged the onus of satisfying the court that it was appropriate to overturn the trial judge's findings of fact. The court noted that the trial judge had found the plaintiff to be an honest witness who was endeavouring to answer questions to the best of his ability, and that his statements and demonstrations of pain and disability in court were honest and not intentionally misleading. The trial judge had relied on the principle established in *Glavinas v Holden’s Motor Company Limited*, which allows for damages to be awarded for pain and suffering and incapacity genuinely felt and experienced by a plaintiff, even if the cause cannot be precisely defined by conventional physical or psychiatric labels, provided the plaintiff is assessed as being truthful. However, the defendant argued that the plaintiff's credibility had been successfully challenged.
The appellate court concluded that the defendant had made good its challenge to the trial judge's findings of fact regarding the plaintiff's credibility. Consequently, the court determined that the damages awarded by the trial judge should be reduced. The reasons for this conclusion were that the defendant had satisfied the court that it was appropriate to overturn the factual findings made by the trial judge concerning the plaintiff's honesty and the extent of his claimed disability.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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].
Ratio Decidendi
Legal Principle Established
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