KASUMOVIC v BLANCO
[2007] SASC 267
•19 July 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KASUMOVIC v BLANCO
[2007] SASC 267
Judgment of The Honourable Justice Layton
19 July 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - GENERALLY
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - OTHER CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY
Appeal against decision of a magistrate who dismissed the appellant's (plaintiff's) claim for damages arising from a motor vehicle accident allegedly caused by the negligence of the respondent (defendant) - the Magistrate was satisfied that the plaintiff suffered from a severe psychiatric disorder and a back injury but not persuaded that those injuries were causually connected to the accident - whether Magistrate failed to provide adequate reasons and make appropriate findings of fact - whether Magistrate failed to properly assess the evidence, in particular corroborative evidence of the plaintiff's wife and the medical evidence - whether Magistrate erred in drawing adverse conclusions from the plaintiff's failure to call relevant witnesses and inconsistencies in his evidence.
Held: - the Magistrate's reasons were inadequate and amounted to an appealable error - the Magistrate failed to properly differentiate between narrative, submissions of counsel and findings of fact - the Magistrate failed to properly address and assess the evidence, in particular the evidence of the plaintiff's wife and the medical evidence - as a consequence the Magistrate failed to make adequate findings of fact on primary issues - the Magistrate erred in drawing adverse conclusions against the plaintiff in the circumstances - appeal allowed - dismissal of the plaintiff's claim set aside - re-trial ordered.
Magistrates Court Act 1991 s 40; Supreme Court Civil Rules 2006 Rule 292, referred to.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, applied.
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Ex parte Powter, Re Powter (1945) 46 SR (NSW) 1; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1; Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1; Mifsud v Campbell (1991) 21 NSWLR 725; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Rana v SkyCity Adelaide Pty Ltd [2007] SASC 46; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.
KASUMOVIC v BLANCO
[2007] SASC 267Magistrates Appeal: Civil
LAYTON J:
Introduction
This is an appeal against a decision of a magistrate who dismissed the plaintiff's claim for damages for injuries sustained as a result of alleged negligence of the respondent. For convenience, I will refer to the appellant as “the plaintiff” and the respondent as “the defendant”.
The accident which gave rise to the action for damages occurred on 11 July 2001 on Port Wakefield Road near Virginia. The plaintiff, who was an employee of the defendant, was a passenger in an armoured security van driven by another employee of the defendant. The vehicle lost control travelling at 110 kilometres per hour when it was approaching an 80 kilometres per hour zone, which coincided with a bend and a decline in the road. The vehicle tipped onto its right side and slid for a number of metres until it was stopped by trees. The plaintiff alleged he suffered injuries to his back and neck, as well as psychological and psychiatric sequelae.
The essence of the appeal concerns whether the learned Magistrate erred in concluding that whilst he was satisfied that “the plaintiff suffers a significant psychiatric disorder and that he has injured his back”, he was “not persuaded … that those injuries were caused by the accident”. It was contended that in so finding, the Magistrate erred in four major areas:
First, the overarching argument is that the Magistrate failed to make appropriate findings of fact and failed to give any or adequate reasons in relation to rejection of evidence.
Second, that the Magistrate failed to make any assessment of the plaintiff's wife who gave evidence and in particular, wrongly found that there was a “lack of corroboration” of the plaintiff’s evidence.
Third, that the Magistrate failed to make any proper assessment of the medical evidence, particularly as there was some divergence of medical opinion.
Fourth, that the Magistrate erred in drawing an adverse conclusion from the plaintiff’s failure to call his parents and workmates as witnesses.
Background
The trial
The defendant admitted liability for the accident, but denied the plaintiff's allegations of injury, loss and damage. In the alternative, the defendant stated that if there was such injury, the plaintiff had sufficiently recovered and suffered no effect from any injury which may have been sustained in the accident.
The trial took place in March 2006 and occupied some five days. The documentary evidence, particularly in the form of medical reports, was significant. Unfortunately, most of them were bundled together as Exhibit P5 and not separately numbered or identified. It is concerning as to whether by the time the matter reached this Court, all of the medical reports have been included in the exhibit. I checked this with counsel at the hearing before me and I satisfied myself that all reports were present.
The following reports were tendered:
Doctor’s name
Date of consultation
Date of report
Dr Marko Zuvela
25 October 2002
12 June 2003
Mr Paul Kassapidis
6 March 2003
16 July 2003
Mr Adrian Munyard
21 March 2003
16 July 2003
Mr Robert Hall
12 March 2003
18 March 2003
Dr Ivan Siklich
12 August 2003, 3 September 2003 and 1 October 2003
27 October 2003
Dr Inglis Synnott
24 March 2004
30 March 2004
Dr Peter Lugg
7 April 2004
4 May 2004
Mr Adrian Munyard
5 July 2004
8 July 2004
Dr John Meegan
25 October 2004
25 October 2004
Dr Gary Champion
21 February 2005
21 February 2005
Dr Inglis Synnott
22 February 2005
2 March 2005
Dr Inglis Synnott
6 October 2005
13 October 2005
The plaintiff gave evidence himself and called Dr Zuvela; Mr Redzif Nasup; Dr Siklich; Ms Arnesa Pleao, his estranged wife; Mr Paul Kassipidis and Mr Dino Ligato. The defendant called Dr Champion; Dr Synnott and Mr Lopez.
Relevant legal principles
Appeal by review
An appeal to this Court from the Magistrates Court is by way of rehearing.[1] This Court is therefore obliged to conduct a real review of the trial and of the Magistrate's reasons.[2] As Kirby J (with whom Gleeson CJ agreed) said in CSR Ltd v Della Maddalena:[3]
... the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'. [Footnotes omitted]
[1] Magistrates Court Act 1991 (SA) s 40; Supreme Court Civil Rules 2006 r 292(1).
[2] Fox v Percy (2003) 214 CLR 118, 126-127 [25].
[3] (2006) 80 ALJR 458 [16].
Appeals concerning credibility of witnesses
This appeal questions the Magistrate’s findings as to the credibility of witnesses. In Devries v Australian National Railways Commission[4] the High Court reminded appellate courts of the approach to be taken to findings of fact that depend to a substantial degree on the credibility of witnesses and of the limited basis upon which the appellate courts are entitled to interfere with such findings:
More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". [Footnotes omitted]
[4] (1993) 177 CLR 472, 479.
That principle was reaffirmed in Fox v Percy,[5] although at the same time, the High Court stated that that principle must be read against the obligation of courts of appeal to perform their appellate functions.
[5] (2003) 214 CLR 118, 127-129, [27] to [29] per Gleeson CJ, Gummow and Kirby JJ.
The requirement for reasons
This appeal primarily concerns the adequacy of the Magistrate’s reasons. I note the following principles in relation to the requirement to give reasons:
·The giving of reasons is a normal (albeit not universal) incident of the judicial process.[6]
·Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment.[7]
·The requirement also furthers judicial accountability.[8]
·Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case.
·Reasons need not be lengthy and elaborate,[9] nor do they need to refer to all the evidence led in the proceedings.[10] However, relevant evidence should be referred to, albeit not necessarily in detail.
·Detail may be required in circumstances where evidence is important or critical to the proper determination of the matter and if it is not referred to by the trial Judge an appellate court may infer that the trial Judge overlooked the evidence or failed to give it consideration.[11]
·Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.[12]
·A judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached.[13] However, a judge may not be required to make explicit findings on each disputed piece of evidence if the inference as to what is found is appropriately clear.[14]
·Where one set of significant evidence is preferred over another, the trial judge should set out sufficient findings to explain why.[15]
·Similarly, where a dispute involves a form of “intellectual exchange, with reasons and analysis advanced on either side”, the judge “must enter into the issues canvassed before him and explain why he or she prefers one case over the other”.[16]
[6] Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269‑270, 278; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 441.
[7] Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1, 31.
[8] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279), per McHugh JA; and Bealev Government Insurance Office (NSW) (1997) 48 NSWLR 430, 442, per Meagher JA.
[9] Ex parte Powter, Re Powter (1945) 46 SR (NSW) 1, 5; Bealev Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443
[10] Mifsud v Campbell (1991) 21 NSWLR 725, 728.
[11] North Sydney Council v Ligon302 Pty Ltd (1995) 87 LGERA 435.
[12] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 382.
Reasons and appealable error
There are varying court decisions as to whether a failure to provide reasons or a failure to provide adequate reasons constitutes an error of law. As Meagher JA noted in Beale v Government Insurance Office (NSW),[17] many courts appear to have assumed the error to be one of law, but all are united in that it may be an appealable error, depending on the particular circumstances. Recently, the Supreme Court of South Australia has indicated that failure to give reasons did not amount to an error of law.[18] This statement should be considered in the context of the circumstances of that case, including that it was an appeal related to an interlocutory judgment on costs.
[17] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[18] Rana v SkyCity Adelaide Pty Ltd [2007] SASC 46.
Whether it amounts to an error of law or not, it is common ground that a failure to give reasons or a failure to give adequate reasons may, in the circumstances of a case, amount to an appealable error.
Further, even if there is an appealable error, a Court will only intervene when the failure or the inadequacy is such as to give rise to a miscarriage of justice.[19] Moreover, an appealable error arising from inadequate reasons does not necessarily result in a new trial. The appeal court is entitled to consider the matter afresh and decide the matter, if it can do so where, for example, only one conclusion is reasonably open on the available evidence.[20]
Approach by the Magistrate - reasons
[19] Bealev Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[20] Ibid.
In this case, the Magistrate did not fail to give reasons. My concern is with the adequacy of his reasons. Before I discuss the particular grounds of appeal, I make the general observation that the Magistrate appears to have failed to differentiate between findings of fact and narrative. There are exceptions to this observation, but generally speaking this failure applies to the evidence of witnesses. There appears to be a lack of assessment and findings of fact, and instead a mere recitation of evidence. This observation is also generally applicable to the Magistrate’s treatment of counsels’ submissions. The Magistrate seems to recite the substance of arguments without specifically adopting or rejecting them. Furthermore, it appears that the Magistrate failed to clearly articulate his specific conclusions or findings.
An example of the Magistrate’s blurring of narrative and findings is contained under the relatively uncontentious issue of the “Circumstances of the Accident” in paragraphs [4] to [7] of his reasons. At first blush these appear to be findings of fact, without necessarily so stating. However, included in this recitation are references to the narrative in the third person. For example, in paragraph [5] when dealing with the plaintiff's circumstances, the Magistrate states “[the plaintiff] said that he thought he would be blinded”, and then in paragraph [7]:
The plaintiff said that he was physically and mentally tired. He said that the accident completely dominated his thoughts and in his mind he constantly re‑lived the accident.
There is therefore some doubt as to whether the matters in paragraphs [4] to [7] are findings of fact, or whether they are simply narration of the plaintiff's evidence.
Further, under the heading of “Alleged Consequences of the Accident” in paragraph [8], the first portion sets out the plaintiff’s various complaints, given in evidence, but then blurs into sentences such as:
[8]He now suffers from depression and is irritable, angry and short tempered. He has been diagnosed as suffering a psychotic disorder, possibly schizophrenia with delusions and hallucinations. He also has a depressive disorder … More specifically his psychiatric condition has been characterised by one psychiatrist as a post traumatic stress disorder. His injuries have affected his relationship with his wife with the result they are now estranged and according to the plaintiff’s wife the marriage has ended and she is looking to move on with her life.
While these sentences appear to be conclusions, bearing in mind the final dismissal of the plaintiff’s claim, their status is ambiguous. There is fusion of allegations, potential findings, and a summary of the effect of medical evidence.
The next major heading in the Magistrate’s reasons concerns the plaintiff's credit. This was clearly a significant issue which is indicated from the following remarks in the Magistrate’s reasons:
[9]The defendant warns that I should take a cautious approach to the evidence provided by the plaintiff and produced many reasons why I should be sceptical about the credit of the plaintiff.
Thereafter the Magistrate develops the defendant’s arguments as to why the plaintiff’s credibility should be disputed. I will refer to these in greater detail later in these reasons.
Paragraphs [9] to [21] are largely a summary of the defendant’s submissions, with some references to the Magistrate’s own observations (see paragraphs [13] to [14]) but without any specific conclusions or findings of fact. For example, in paragraph [20] when referring to the plaintiff’s evidence, the Magistrate raises what he describes as “interesting questions”.
[20]… For instance, was this a lie aimed at improving his job prospects or is it the truth? If the plaintiff was prepared to lie in the job application then what consequences does that have for his credit? Should I accept that the lie proves the truth of his claim that he suffered injuries in the accident or does the lie cast doubt upon his creditability [sic] generally?
It is evident from these paragraphs that the Magistrate largely set out the defendant’s case, instead of setting out the plaintiff's overall case, and then considering and assessing the plaintiff's credibility in a context. The references to the plaintiff's evidence is a reference to specific evidence which the defendant challenged.
Under the next heading “Medical Evidence”, (paragraphs [22] to [30]), the Magistrate deals in some detail with the evidence of the doctors who were called, with little or no additional reference to the tendered medical reports. These paragraphs contain no real analysis and assessment of the varying medical diagnoses. Paragraphs [31] to [36] under the heading “Discussion” provide only limited analysis and findings. I will deal with certain passages of this later in these reasons. It is not until paragraph [36] that the Magistrate determines:
[36]… The defendant has produced sufficient evidence to create a serious doubt about the plaintiff's veracity. I am satisfied that the plaintiff suffers a significant psychiatric disorder and that he has injured his back. I am not persuaded however that those injuries were caused by the accident.
The Magistrate makes no findings as to the nature of the injury to the plaintiff’s back, nor any specific findings as to when this back injury occurred, that is whether the injury pre-dated or post-dated the accident. However, he finds that that injury was not caused by the accident. This lack of identification of critical matters related to the back injury in the overall situation of the issues in this case is highly unsatisfactory.
Similarly, the Magistrate finds that the plaintiff suffers “a significant psychiatric disorder” yet there is no reference as to the type or nature of the psychiatric disorder, or when it arose, nor the symptoms attributable to the disorder. Again, in the situation of this case, that is unsatisfactory.
Nowhere in his reasons does the Magistrate consider the plaintiff’s case as a whole. The Magistrate does not address the history of symptoms complained of by the plaintiff coupled with the evidence given by his estranged wife, which supported the fact that the plaintiff suffered symptoms commencing from the date of the accident. There is also no consideration of the history of symptoms taken in conjunction with the diagnoses of the various medical experts. I will refer to all this evidence in more detail later.
This overall deficiency in the reasoning process appears to lead to a failure by the Magistrate to make findings of fact on primary issues.
Having indicated these matters in a general sense, I will now address the precise grounds of appeal, commencing with the second ground.
Ground 2: Assessment of the evidence of the plaintiff's wife
The essence of the plaintiff's arguments in relation to the evidence of the plaintiff's wife is that the Magistrate failed to make any finding as to his acceptance or rejection of her evidence, except for the limited topic of cohabitation. Further, it is submitted that if the Magistrate had accepted the evidence of the plaintiff's wife, he failed to have regard to the fact that it was corroborative evidence as to the plaintiff’s symptoms, the injuries sustained, and whether or not they were probably caused by the accident. It is argued that, instead, the Magistrate made an adverse finding of the plaintiff’s credit based on a lack of corroboration by relevant witnesses.
Alternatively, it is submitted that if the Magistrate had rejected the evidence of the plaintiff's wife as lacking credit, he did not state that and failed to give any reasons for such rejection. In essence, counsel for the plaintiff submitted that the Magistrate did not make any relevant findings one way or the other as to the evidence of the plaintiff’s wife with regard to symptoms complained of by the plaintiff after the accident.
The plaintiff’s wife, Ms Arnesa Pleao, gave the following evidence:
Q. Have you any recollection of him arriving home after the accident how he looked.
A.Yes, I saw him I never really forgot, I never forget, you know, that night he was really pale in the face, visibly shaken. His eyes really red and his eyes movement really strange. He couldn’t move his elbow later on.
Q.Which elbow.
A.I think right hand. I think but it was really long ago so I can’t tell you exactly. What else – he wanted to sit down I just put him on the bed relax a bit. He was, he just kept quiet really like shaken. Really, really strange. He wasn’t himself.
…
Q.Do you recall the next morning.
A.Next morning he got up in pain again.
OBJECTION: MR WARD OBJECTS
Q.What observations did you make of your husband the next morning.
A.Nothing he was still in the bed it was day, you know, time to get up and he was still in the bed, lying in the bed. I went to his door to check how is he and then he told me he is in pain. I could see the same from last night not improvement at all. I suggest for him to go to the doctor but he refused that.
Q.Do you recall whether he went to work, or not.
A.He went to work. He went to work. I can’t remember was it that day or tomorrow but he went to work straightaway from the accident, yes.
Q.You mentioned pain did that improve over a period.
A.Well he worked. He worked but every time he came back from work he just complain strong headaches, back pain and neck pain. And every day he comes from work he used to take two Panadeine Forte and Panadols and different pain reliefs for the pain and that put him to sleep for couple of hours. He was complaining all the time. You know, he wasn’t the same person really.
Q.Did you do anything to assist him during that period.
A.Well, yes, you know, I saw something really happening, something going on. I gave him – I tried different creams for massage to relax his muscles and joints but nothing really helped a lot and that was a physical pain and not after long – not long after that I notice some psychological changes as well.
Q.What psychological changes did you notice.
A.He started to be very isolated. Probably he’s that type of person when he’s in pain he never talk about that. He express himself different ways like being aggressive going out of control easily, being upset with little things. When he comes back from work always quiet, lying down. He withdraw from – we had the family friends he didn’t want to go to see anybody, no-one come to our house any more. You know, step by step I should tell you million things what happened but gradually, you know, he become really ill.
Q.You said he was playing soccer –
A.We had arguments all the time. I couldn’t cope. I tried to help him as much as I could. I tried, I really tried so hard.
Q.What would you do. How would you try.
A.I mean I tried to be patient. You know, I thought this is temporary and he will go out of this by himself. That’s what he told me. Everyone time I suggested ‘Why don’t you go and seek help?’ He said ‘I will be better. I will be better’, that’s it. No more talking, no more explanation why he is doing that like and he wasn’t really ready. He wasn’t – he wasn’t able – he couldn’t care for the child any more. Every time I pass him the child to hold or cuddle a bit he refused that as well.
Q.Could you tell me the dates of birth of the two children.
A.You want to know dates?
Q.Yes.
A.31 of August 2002 and another child 27 August 2005.
Q.You said that after the first child was born you would pass him the child.
A.Yes, I was going really through the emotions myself, you know, being pregnant, alone all the time and not having too much help from him. And passing through the emotions I couldn’t cope any more with him because he refused seek – he refused to go to the doctor and seek help and I couldn’t just handle any more. I couldn’t – I was really I don’t know.
Q.Seek help for what.
A.Well his pain. Especially for psychological, you know, thing.
Q.Did you make a decision in regard to the relationship.
A.Yes.
Q.What was that decision.
A.I decided to leave because for me life with him was just impossible. It was really hard for me so I left with the child.
Q.When was that.
A.December 2002 when my son was about four months.
Q.I don’t mean this in any condescending way but was it a major decision for you to decide to leave the marriage.
A.Of course, of course it wasn’t easy at all. Especially I’m living in such a community and, you know, how can I say – it’s not easy for me that big step wasn’t really easy but I tried so hard and I knew if I stayed even longer it would just be even worse for me. I as a woman couldn’t cope with Elmedin any more. I couldn’t be with him because it was really nothing between me and him as a man and wife. He was just sick person. He had serious problem, that’s what I think.
Q.What were those serious problems he had as you saw it.
A.As I told you he wasn’t himself any more, life become just so bad for him. He was so withdrawn from society and he doesn’t want to care, he didn’t want to care about me, about child any more. What a dramatical change no-one believed really not my parents and people who know us. Everybody ask me ‘What’s going on with Elemedin?’ You know, ‘Are you okay?’ You know, different questions. But I couldn’t give them an answer. I was really embarrassed, you know, in the beginning, I didn’t know what to say. I just left, yes.
Q.Why were you embarrassed.
A.Well embarrassed about my husband, you know, what he’s doing to himself to his family to everybody. He wasn’t like that just to me to everybody. He become like not normal you know what I mean? I mean he got upset very easily. He started – during the night for example, he started he woke up in a cold sweat screaming having nightmares about accident. Killing people, yes, he told me about killing people so many times. I said ‘Why you want to kill someone?’ Especially when he was driving it was easy for him like to attack someone or kill but he wasn’t like that before, you know. And I got surprised as his wife how come such a man become this the really 100% change. Also one night I remember he woke up in the evening he wanted to go for work in the middle of night he got dressed he said ‘I’m late, I’m late for work’. I said ‘It’s 2 o’clock, it’s 2 o’clock in the night – in the morning it’s too early’. He said ‘No, no, I have to go to work’. He start his engine like crazy, you know, he didn’t know what he was doing. You know what I mean? ….
This evidence was not the subject of cross-examination. Instead, cross-examination was on specific peripheral issues of credit such as whether or not she and the plaintiff were cohabitating. It was suggested to Ms Plaeo in cross-examination that they were not in fact separated, but were claiming and receiving pensions as though they were. The Magistrate rejected this suggestion, being the only finding he makes with respect to Ms Plaeo’s credibility.
A further line of cross-examination concerned Ms Plaeo’s evidence about her husband having taken Panadeine Forte which was not prescribed, and that he used his parents’ Panadeine Forte. The plaintiff's parents were living in the house at the time.
The Magistrate made only three references to the evidence of the plaintiff's wife in the following paragraphs:
[8]His injuries have affected his relationship with his wife with the result that they are now estranged and according to the plaintiff’s wife the marriage has ended and she is looking to move on with her life.
…
[34]On his own evidence, the plaintiff performs tasks that are inconsistent with his back injury. Specifically, he said that he had moved furniture for his mother and that he had helped his wife to move house. He assisted his wife by obtaining a trailer into which he placed his wife’s furniture and then took the furniture to the new address and presumably then unloaded the trailer. It is interesting that he admitted to this himself but his wife denied that he’d ever done such a thing.
…
[35]The defendant says also that the defendants [sic] prolonged stays at his wife’s house are inconsistent with the plaintiff’s claim that he and his wife are estranged. The defendant suggests that there is no such failed marriage and points to the long periods when the plaintiff stays at the house and to the birth of the second child. These are perhaps legitimate grounds for doubt but the defendant has failed to satisfy me that the plaintiff and his wife are attempting to claim social security benefits that they would not be entitled to if they were not separated. I am not satisfied that they are cohabiting. [Emphasis added].
As I previously mentioned, there is no reference to Ms Plaeo’s evidence about the symptoms complained of by the plaintiff or to her observations of his conduct.
If the plaintiff's wife’s evidence had been accepted, then it would tend to corroborate symptoms which the plaintiff complained of. Her evidence is particularly relevant to the issue of why it was that the plaintiff did not immediately seek medical attention after the accident. This was a matter which was important to the Magistrate’s reasoning on the issue of the plaintiff’s credibility.
There are two peculiar features about the Magistrate’s limited reference to Ms Pleao’s evidence: First the Magistrate appears to accept that neither the plaintiff nor his wife were cohabiting. Therefore the wife’s evidence must have at least been accepted on that point.
Second, the plaintiff gave evidence that he assisted his wife to move furniture. This was an admission made against his interest because he was being criticised by the defendant on the basis that such acts were inconsistent with his alleged symptoms. On the other hand, Ms Pleao’s evidence was that the plaintiff did not move furniture, although he may have moved some baby equipment or painted a room. The Magistrate makes no finding on this contradictory evidence, but instead uses it adversely to the plaintiff's case.
In my view, the Magistrate failed to appropriately address and evaluate Ms Pleao’s evidence. Her evidence was important and critical to the determination of the issue of the symptoms complained of by the plaintiff, the plaintiff’s credibility, the nature of the injury, and whether it was caused by the accident. On that basis alone I consider that the appeal should be allowed.
Ground 3: Assessment of the medical evidence
The plaintiff submitted that the Magistrate failed to properly assess the medical evidence, or to give any analysis at all of that evidence. As I previously referred to in my general observations of the Magistrate’s reasons, the Magistrate at paragraph [36] makes a finding that he is satisfied that the plaintiff has “injured his back” and that he “suffers a significant psychiatric disorder”, but does not identify what the nature of the condition is in either case, nor the symptoms. The Magistrate then finds that he is not persuaded that “those injuries were caused by the accident”.
The level of specificity in these findings is entirely unsatisfactory. The only discussion in relation to the medical evidence is contained in paragraph [31]:
[31]A divergence of medical opinion is not uncommon. The opinions concerning the plaintiff’s physical injuries are about equally divided. As for the psychiatric symptoms, all medical experts are agreed that the plaintiff is suffering from a psychiatric disorder. There is disagreement as to whether it is attributable to the accident, although there are more doctors who make a causal link with the accident. Those who take the view that there is a causal link between the accident and the plaintiffs present psychiatric condition are the psychiatrist Dr Siklich, the psychologist Mr Kassapidis and the plaintiff’s general practitioner Dr Zuvela. Those who say there is no causal link are the psychiatrist Dr Synnott and the physician Dr Champion. There is more to this however than just numbers and in any event there are other inconsistencies which the plaintiff must address.
The plaintiff was seen by 10 medical experts, nine of whom provided reports which were tendered, and five of whom gave evidence. There was therefore a considerable volume of material requiring analysis and assessment. I acknowledge that in a case such as this, the task is not an easy one.
In my view, there are a number of deficiencies in the recording of the medical and psychological material which was before the Magistrate, quite apart from the lack of analysis. Although some detail is set out under the heading “Medical Evidence” (paragraphs [22] to [30]) the discussion of the medical opinion in paragraph [31] is incomplete. Firstly, there is no reference at all to the reports of Mr Hall, a Neurologist, dated 18 March 2003, nor the report of Dr John Meegan, an Occupational Physician, of 25 October 2004. The more important of those was Dr Meegan who diagnosed the plaintiff as having a soft tissue injury in the cervical, thoracic and lumbar areas of his back, and as suffering from a Post-traumatic Stress Disorder and depression following the accident. Mr Hall found that the plaintiff suffered multiple non-specific complaints, but no neurological injury. Mr Hall’s diagnosis was not inconsistent with that of other medical practitioners, who diagnosed soft tissue injury.
Secondly, although Dr Zuvela’s opinion is referred to, there was no mention of his diagnosis of Post-traumatic Stress Disorder and depression, which he considered was causally connected to the accident.
Thirdly, there is no reference to the diagnosis of depression contained in the psychological report of Mr Kassapidis, although there is reference to the diagnosis of Adjustment Disorder with anxiety features, which Mr Kassapidis considered was causally connected to the accident.
I now turn to the importance of analysis and assessment of the medical evidence in this case.
As I indicated earlier, the central issues in this case were whether the plaintiff suffered injury in the accident and, if so, whether he had sufficiently recovered such that he no longer suffered the effect of such injury. In order to decide these issues it was necessary to consider the following:
·Whether the plaintiff complained of any symptoms following the accident and thereafter.
·If so, whether those complaints were corroborated by his wife’s evidence, and were consistent with the symptoms of which he complained to the various medical practitioners.
·What did the medical examination of the medical experts reveal.
·What were the varying diagnoses made by medical experts as to any:
1. physical injury, or
2. psychological injury?
·What findings are made on the balance of probabilities as to whether the plaintiff suffered injury, and whether there was a causal connection between that injury and the accident.
·If the answer is yes to the previous point, whether his symptomology and/or injury changed over the period of time up until the date of the hearing. In particular as at the date, what was the plaintiff's current condition, and what was its relationship, if any, with the injury or the accident.
It appears from the Magistrate’s findings at paragraph [36] of his reasons that there is a confusion as to his finding of injury and its timing. In relation to the “significant psychiatric disorder”, the Magistrate has expressed that in the present tense as “suffers”, but in relation to the back injury it is expressed in the past tense as “has injured his back”. There is therefore no context by which one can understand what the Magistrate is in fact conveying in this finding.
Furthermore, one of the significant issues in this case was what appears to be an earlier psychological condition which had either developed into, or had been triggered, or superimposed by a psychotic condition by the time of the hearing. In addition, there was an issue as to whether or not that latter condition was in any way causally connected to the accident. There is no analysis of these issues in the Magistrate’s reasons.
Moreover, in my view the Magistrate erred in his assessment that “the [medical] opinions concerning the plaintiff's physical conditions are about equally divided”. That is not correct, as all of the relevant medical practitioners - Dr Zuvela, Mr Munyard, Dr Peter Lugg and Dr Meegan - accepted that the plaintiff suffered a soft tissue injury to his back and neck. As to whether the plaintiff has suffered a psychological reaction to the injury, there is significant medical evidence which supports the suffering of a Post-Traumatic Stress Disorder and depression, specifically the evidence of Dr Zuvela, Mr Kassapidis (as to depression, his differential diagnosis was an adjustment disorder), Dr Siklich and Dr Meegan. Other medical practitioners who were not psychiatrists, were also prepared to find that there were psychological symptoms overlaying the soft tissue injury, namely Mr Munyard, Dr Lugg and Dr Synnott.
The one medical practitioner who seemed in all respects to have a differing view was Dr Champion. However, it is apparent from his evidence, that he refrained from making any diagnosis as to psychological aspects. Further, in so finding, Dr Champion was unable to substantiate any injury, and expressed concern about the plaintiff's long delay in complaining of symptoms from the accident.
In my view, none of these matters were appropriately analysed and assessed by the Magistrate. He failed to note that almost immediately after the accident the plaintiff consistently complained of symptoms to his back and neck, as well as headaches. The plaintiff also suffered from disturbed sleep, nightmares, irritability and, later, more psychotically-based symptoms. These matters should have been appropriately assessed.
In my view this deficiency also amounts to an appealable error.
Ground 4: Making adverse findings against the plaintiff
In making findings adverse to the plaintiff and as to why he is not persuaded that the injuries found were caused by the accident, the Magistrate refers to three factors (paragraph [36]): First being the plaintiff's failure to seek medical attention in relation to his physical injuries. In relation to this factor, I consider that the failure to seek medical attention by itself may not be the real issue. If the evidence of the plaintiff’s wife is accepted, then the plaintiff has complained of symptoms but has refused to go to the doctor. Her evidence about this was not controverted. Also in looking at the plaintiff’s refusal to go to the doctor, there is a need to have regard to any psychological response to injury. Dr Synnott agreed in cross-examination that this would have an impact. Finally, there is the plaintiff’s explanation for his failure to seek medical attention. This explanation was criticised on the basis that after March 2002, when the plaintiff was sacked from his job, his excuse of not wanting to put his permanent job in jeopardy could no longer, apply as there was still a further period of seven months before he saw Dr Zuvela about his back pain. However, even if this excuse is rejected, the real relevance of a failure to report to the doctor is that it tends to suggest that the plaintiff has not suffered from the symptoms which he alleges. In this case there are complaints which appear to have been corroborated by his wife. In addition to her evidence, there is also the evidence of two lay witnesses, which suggests that the plaintiff does not like to complain.
In short, there is doubt as to whether the correct question was in fact asked. The correct question in this case should have been: even though the plaintiff did not go to the doctor, was he nonetheless suffering and continuing to suffer from symptoms which were contemporaneous following the injury?
The second argument the Magistrate uses for doubting the plaintiff’s veracity are the inconsistencies. There are undoubtedly a number of inconsistencies in the plaintiff’s evidence, which were valid matters of concern to the Magistrate. However, these inconsistencies need to be viewed in the context of considering the whole of the evidence, in particular the evidence related to the plaintiff's psychological condition.
The third and final argument used by the Magistrate is the plaintiff's failure to call his parents and workmates as witnesses. This is set out in paragraph [21] of the reasons:
[21]The defendant also questions the failure to call evidence from persons who are closely associated with the plaintiff and should therefore be able to corroborate the plaintiff’s version. In particular the defendant refers to the failure to call either of the plaintiff’s parents or work colleagues. The defendant says that such people would be best placed to give evidence about any changes in the plaintiff following the accident.
The Magistrate clearly notes the defendant’s criticism of the plaintiff's failure to call either his parents or work colleagues. The Magistrate also notes the defendant’s argument that his parents and work colleagues would be “best placed” to give evidence about any changes in the plaintiff’s co-ordination following the accident. The plaintiff submitted that the person in the best position to give evidence on this topic was the plaintiff’s estranged wife. The plaintiff’s wife was able to give information about the plaintiff’s conduct because of the intimacy of their relationship.
The Magistrate appears to have formed the view that in the absence of the plaintiff calling his parents or workmates, there was no corroboration of the plaintiff’s case. In my view, there was no lack of corroborative evidence, and the Magistrate was wrong on that point. In these circumstances I consider no adverse conclusion should have been drawn by the plaintiff's failure to call his parents or workmates.
Conclusion
For the aforementioned reasons I consider that there are appealable errors in the Magistrate’s approach to the evidence, the inadequate reasoning given on fundamental issues in the case, as well as the apparent lack of appropriate findings. I consider that Ground 1 is also made out when all grounds of appeal are considered collectively.
In my view, these errors are such as to give rise to a miscarriage of justice and warrant the intervention of this Court. I have considered whether this intervention should be in the form of a new trial or whether this is a case in which only one conclusion is reasonably open on the evidence. Having considered this issue long and hard, I have reluctantly concluded that the complexity of matters to be determined, are not straightforward. Whilst I have formed the view that the plaintiff on the evidence so far adduced, is likely to succeed in relation to his claim for damages for both physical and psychological injuries, there are other complexities which need to be addressed. These include the ongoing nature of such injures, the cause and effect of the psychotic condition and the extent of compensable incapacity and damages.
Accordingly, I order as follows:
1. Appeal allowed.
2. The Magistrate’s dismissal of the plaintiff’s claim is set aside.
3. A new trial is ordered to proceed before a different magistrate.
I will hear the parties as to costs.
9
1