Keith v Gal
[2013] NSWCA 339
•15 October 2013
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Keith v Gal [2013] NSWCA 339 Hearing dates: 30 July 2013 Decision date: 15 October 2013 Before: Emmett JA at [1];
Gleeson JA at [6];
Simpson J at [156]Decision: 1. Appeal allowed.
2. Set aside the orders made by O'Toole DCJ on 4 May 2012.
3. Remit the matter to the District Court for a new trial on damages.
4. Costs of the first trial to abide the event of the second trial.
5. Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - grounds - failure to give adequate reasons - where limited cross-examination - where primary judge failed to resolve factual issues raised by lay and expert evidence - where primary judge's reasoning is seriously deficient - new trial required
DAMAGES - measure of damages - personal injuries - where liability admitted - whether pre-existing injuries were the cause of the appellants retirementLegislation Cited: Suitors' Fund Act 1951 Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186
Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130
Mifsud v Campbell (1991) 21 NSWLR 725
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Palmer v Clarke (1989) 19 NSWLR 158
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33Category: Principal judgment Parties: Clifford Keith (Appellant)
Adrian Gal (First Respondent)
Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs (Second Respondent)Representation: Counsel:
D Murr SC with M Fraser (Appellant)
J Turnbull with C Mulvey (Respondents)
Solicitors:
Brydens Compensation Lawyers (Appellant)
Curwoods Lawyers (Respondents)
File Number(s): 2012/161730 Decision under appeal
- Jurisdiction:
- 9101
- Citation:
- Clifford Keith v Adrian Gal and Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs
- Date of Decision:
- 2012-04-27 00:00:00
- Before:
- O'Toole DCJ
- File Number(s):
- 2008/316397
Judgment
EMMETT JA: On 25 July 2001, the appellant, Mr Clifford Keith, was injured when the vehicle he was driving collided with the rear of a tow truck that pulled abruptly into the traffic lane in which he was driving. The tow truck was being driven by the first respondent, Mr Adrian Gal. At that time, the tow truck was owned and operated by the second respondents, Carol and Darren Armstrong.
Mr Keith commenced proceedings in the District Court for recovery of damages for his injuries. For reasons published on 27 April 2012, nearly 18 months after the trial, the District Court found that Mr Keith's injuries had completely resolved by 28 October 2003 and that he could have remained in his then employment indefinitely. Accordingly, the District Court allowed only a small part of Mr Keith's claims, being part of his claim for lost wages and his claim for out-of-pocket expenses. A verdict and judgment was entered for Mr Keith in the sum of $3,148.70. Mr Keith appealed from those orders.
Mr Keith's notice of appeal raised some 17 grounds. Ground 17 was to the effect that the reasons of the trial judge failed to disclose a logical or adequate reasoning process. When the appeal was called on for hearing, the parties were invited to address the Court on the adequacy of the reasons of the District Court. Following the conclusion of argument on that ground, the Court indicated that it did not wish to hear the parties in relation to the other grounds of appeal.
I have read in draft form the proposed reasons of Gleeson JA. For the reasons given by his Honour, the reasons of the District Court are deficient insofar as they fail to analyse the evidence and explain why parts of it do, and others do not, lead to the ultimate conclusion reached by the District Court. For the reasons given by his Honour, the District Court's reasons do not reach the minimum acceptable level to constitute a proper exercise of judicial power.
Since there are credit issues involved in the resolution of the proceedings, this is not a case where the Court of Appeal would be in as good a position to decide the issues as the District Court. Accordingly, as Gleeson JA says, notwithstanding the great hardship on the parties and witnesses that might be occasioned by reason of a further trial in respect of an accident that occurred more than 13 years ago, the proceedings must be remitted for a new trial on damages. I agree, therefore, with the orders proposed by Gleeson JA.
GLEESON JA: This is an appeal against an assessment of damages for personal injuries in an action where liability was admitted.
The appellant was injured in a motor vehicle accident on 25 July 2001. The appellant suffered a whiplash injury. The appellant claimed that, over time, the symptoms of pain in his neck and right shoulder, arm and hand worsened. He also experienced problems with psychological changes and his left brachial artery. He left work in May 2004 to recuperate but never returned. The complicating factor for the appellant's damages claim was that he had suffered a number of other significant injuries prior to the 2001 accident.
After a five day trial commencing on 27 October 2010, O'Toole DCJ published reasons for judgment on 27 April 2012, almost 18 months after the trial. Her Honour found that the appellant's injuries were transitory and mild and had completely resolved by 28 October 2003. She also found that the appellant could have remained in his then employment indefinitely. As a consequence, her Honour allowed only a small part of the appellant's damages claim, being part of his claim for past wage loss and out of pocket expenses. The appellant's damages claim was otherwise rejected: Clifford Desmond Grant Keith v Adrian Gal & Pringle Road Smash Repairs (District Court of New South Wales, O'Toole DCJ, 27 April 2012, unreported).
On 4 May 2012, a verdict and judgment was entered for the appellant against the respondents in the sum of $3148.70.
The notice of appeal raised 17 grounds of appeal. These included that the trial miscarried. Ground 17 stated:
"17. The trial judge's reasons failed to disclose a logical or adequate reasoning process."
On the hearing of the appeal, the parties first addressed the Court on the adequacy of the primary judge's reasons. At the conclusion of oral submissions on this ground, the Court indicated its view that it was unnecessary to hear the parties in relation to the other grounds of appeal, as the appeal would be upheld on Ground 17. It is neither necessary nor desirable to examine the other grounds of appeal on which the appellant relies, or the numerous submissions advanced in support of them, or the respondents' response to them.
Since credit issues are involved, there is no alternative to ordering a new trial on damages. This is an unfortunate outcome as a retrial is a remedy that inflicts great hardship on the parties and witnesses. My reasons for upholding Ground 17 and ordering a new trial on damages are as follows.
The nature of the appellant's claim
In 2001, the appellant (then aged 46 years) held the position of Head Teacher, in the Painting and Decorating School at the TAFE Commission's Illawarra Institute. On the evening of 25 July 2001, when driving home from work on the Mt Ousley Road near Wollongong, a tow truck pulled into his lane abruptly and the appellant's vehicle collided with the rear of the truck. The tow truck was driven by the first respondent. It was owned and operated by the second respondent.
The appellant suffered a whiplash injury, experienced a sore neck and headache and weakness in his right side and arm following the accident. He believed he had hit his head on the steering wheel, but there was a significant factual dispute at the trial concerning whether he suffered a head injury.
The appellant returned to work the following day, but claimed that over time his condition deteriorated as his symptoms of pain and psychological changes worsened. On 4 May 2004, he took paid leave to recuperate. However his condition did not improve and he did not return to work. He was certified medically retired by TAFE in January 2005 and has not been in employment since.
The appellant had suffered a number of other injuries prior to the 2001 accident. These included a significant motorcycle accident in 1991, in which he suffered serious cervical spinal injuries. This required a surgical fusion. Whilst the operation was successful, the appellant had continuing problems with his neck brought on by activity. The appellant's other injuries included a severed brachial artery in his left arm when it went through a glass door in 1977. The appellant was also involved in a rear-end collision in 1997 and was off work for a couple of days.
The factual inquiry confronting the primary judge was the extent and significance of the appellant's pre-existing injuries and his 2001 injuries for his capacity for work since 2004, and apportioning those causal factors. The essential issue was whether the 2001 injuries were a cause of his retiring from work in 2004.
At the trial the appellant relied upon lay evidence given by himself, Mr Allan Miller, the appellant's supervisor at TAFE during the 1990s, Mr John Podmore, a colleague of the appellant at the Illawarra Institute, and Ms Evor Freilich, the appellant's partner from about 2002 or 2003. Each of those witnesses was cross-examined.
The cross-examination of the appellant included the showing of a surveillance film of activities undertaken by the appellant on 1 and 2 December 2005 at a house at Lower Beechmont in Queensland.
The appellant also relied on medical evidence, and tendered reports from 16 doctors and one psychologist, all without objection. Only Dr Max Ellis was cross-examined by counsel for the respondents. The cross-examination, which was brief, is discussed below.
The respondents tendered medical reports from 11 doctors, again without objection, except in respect of part of the evidence of Dr Lee, which was rejected. None of these medical practitioners were cross-examined by counsel for the appellant.
The primary judge was confronted with the difficult task of having to evaluate and assess competing medical evidence and choose between the experts without the benefit of cross-examination of at least the principal expert witnesses, except for one of them. Nonetheless, this required her Honour to analyse the evidence in the manner discussed below, in order to make findings on the issues to which the experts' evidence was directed. The appellant's primary contention is that the primary judge failed to do so and thus the reasons for judgment are inadequate.
Before turning to the primary judge's reasons, it is necessary to first examine the lay evidence of the appellant, Ms Freilich and Mr Podmore, and the nature of the principal medical evidence relevant to the appellant's claim.
Lay evidence
(a) The evidence of the appellant
The appellant gave evidence of his pre and post 2001 accident history. The following is intended as only a very brief recount of his evidence, as recorded by the primary judge. Where indicated below, reference is also made to some of his oral evidence at trial.
The appellant gave evidence of his employment with the TAFE Commission, covering the period from 1990 until he left work in May 2004. He commenced as a trainee teacher at the Painting and Decorating School at Granville College. His curriculum tutor at that time was Mr Allan Miller. He completed his training as a teacher of painting and decorating in September 1992, and became a permanent employee of the TAFE Commission.
The appellant applied successfully for promotion to the position of Head Teacher at the Painting and Decorating School in the TAFE Commission's Institute at Orange, and commenced duties in about January 2000. At his own request, he left Orange and later in 2000 took up the position of Head Teacher at the Illawarra Institute.
The appellant worked a 30-hour week at the Illawarra Institute, which included 13 hours of teaching part of the Painting and Decorating School's syllabus to students. As Head Teacher, the appellant taught sections of each module and selected, amongst others, Mr Podmore for "team teaching" other sections of the module.
The appellant gave evidence concerning the other injuries he suffered prior to the 2001 accident. The extent to which those earlier injuries affected the appellant's exercise program of swimming, running and cycling was a matter of particular focus. In 2001, the appellant developed neck pain and stiffness from time to time, brought on by activity such as swimming (20 laps), running (11-12 kilometres) and riding his bicycle (Black 27S-V). He explained that when he backed off completely and started to take it a lot easier he noticed a total improvement in his neck (Black 28J-N).
Shortly prior to the 2001 accident, the appellant attended the Campbelltown Medical Centre concerning neck pain and stiffness which developed following swimming, running and cycling. Dr Fahmy referred the appellant for radiological examination. Subsequently, the appellant was referred to Associate Professor Zagami (Dr Zagami). He consulted Dr Zagami on 10 July 2001, just prior to the accident on 25 July 2001.
The appellant gave evidence concerning the circumstances of the 2001 accident, including whether the impact with the tow truck caused him to strike his head on his steering wheel. This issue was the subject of dispute and an adverse finding by the primary judge: at [613].
The appellant attended work at the Illawarra Institute on 26 July 2001, being the day immediately following the accident.
The appellant described his recollection of the accident, as being thrown violently forward, he had a bad sore neck and a headache and noticed he felt weak in his right arm (Black 29F-M). The appellant said he did not feel very good the following day, that he had a headache and neck pain and that his right shoulder and arm felt very weak (Black 29S-Y). He gave evidence concerning various medical consultations and examinations which occurred after the 2001 accident, commencing on 30 July 2001 when he attended Campbelltown Medical Centre and was referred to Campbelltown Hospital's Emergency Centre.
Between 13 and 24 August 2001 and between 10 and 21 September 2001, the appellant utilised his long service leave to complete course work for the degree of Master of Education at the University of Technology, Sydney. He gave evidence that he had neck pain and bad headaches and his right arm was weak, and that he was starting to look at his work and panic (Black 30U-X). During this time, he was referred for various radiological examinations and to Dr Zagami for a second time on 28 August 2001, and for a third time on 11 September 2001.
The appellant resumed his duties as Head Teacher at the Illawarra Institute in the last week of September 2001. He gave evidence that his neck was not very good and that he noticed his right arm was weak and that he was losing sensation in it (Black 33W-34E). Towards the end of 2001, his neck was getting slightly worse. He described hot, burning sensations and a dull aching pain in his neck and his right arm, from the shoulder down, was weak and insensate (Black 34R-X).
The appellant gave evidence that during 2002 the pain in his neck was constant and he was sensing it was getting worse; that he was having difficulties at work performing his teaching duties. These difficulties included dropping things in demonstrations, having trouble paper hanging, painting and using both hands (Black 35L-R).
In May 2002, the appellant obtained a Master of Adult Education degree from the University of Technology, Sydney. In 2003, the appellant commenced course work for the degree of Doctor of Education at the University of Technology, Sydney. In October 2003, the appellant withdrew from the second semester of that year, citing an ever-increasing workload at the Illawarra Institute.
The appellant gave evidence that in 2003 his neck was getting worse, as was his right arm. He described a strange sensation he experienced after the 2001 accident running from his neck down through his body, like a cold anaesthetic. He said that in 2003, the sensations he was having from his neck down felt like his body was going to shutdown; and he felt that if he was driving on the road, he would have an accident. He said that he felt angry and frustrated that he previously had two good arms and all of a sudden he did not (Black 39P-40D).
The appellant gave evidence that in 2004 he felt he was deteriorating physically. He also said that emotionally he was not very well. He was feeling frustrated and angry with his condition (Black 41G-J).
In May 2004, the appellant felt he was not improving. He was feeling precarious when driving and he decided to take leave from work to recuperate (Black 42F-J). He never returned.
In January 2005, the TAFE Commission retired the appellant from its employment. This followed certification by the medical director of New South Wales HealthQuest, Dr A Casolin, who stated that:
"Mr Keith is suffering from a health condition that will, in all likelihood prove permanent. As a result he is unable to perform the inherent requirements and job demands of the position as a Head Teacher for the Illawarra Institute of Technology, and it is likely that this will continue for the foreseeable future."
The appellant commenced a relationship with Ms Freilich in about 2002 or 2003. He commenced living with her in 2004 at his home at Eschol Park. After about 3 months, Ms Freilich moved to Casula. Towards the end of 2004 she moved to the Gold Coast. At around this time, the appellant also moved to the Gold Coast to live with Ms Freilich. He purchased a unit at Nerang.
In the second half of 2005, the appellant and Ms Freilich purchased a house at Lower Beechmont in Queensland and they began renovating the house. The appellant was cross-examined in relation to his ability to undertake renovation works at the house at Lower Beechmont, particularly having regard to the investigation film obtained by MJA Investigations on 1 and 2 December 2005. This issue was also the subject of opinion in some of the medical reports.
(b) The evidence of Ms Freilich
Ms Freilich gave evidence of her observations of the appellant prior to the 2001 accident. She had first met the appellant in 1997 (Black 202Y). She said that he was very highly driven and very active before the 2001 accident (Black 203V), was a very high achiever and his disposition was that of a very happy man (Black 203X-204D).
Ms Freilich also gave evidence of the domestic assistance she provided to the appellant in 2004 when they lived together. She said that they were sharing the housework; the appellant was doing about 20 per cent and she was doing the rest because he was working. He did the garden on the weekend (Black 206). After she left the appellant's home at Eschol Park in April 2004 and moved to Casula for about nine months, Ms Freilich would visit the appellant's home on most days and on average, spent "probably two hours a day on housework, including cooking, cleaning and that sort of thing". She also gave evidence that whilst she had been living with the appellant earlier in 2004, she had spent about the same time each day on household activities (Black 207L-R).
Ms Freilich's evidence in relation to the domestic assistance she had provided to the appellant was undisturbed in cross-examination (Black 220P-Y).
Ms Freilich gave evidence concerning repairs to the house at Lower Beechmont carried out by the appellant in 2005. In the course of that evidence, the cross-examiner put to Ms Freilich that the appellant would mow the lawn from time to time. Ms Freilich answered "yes". This then led to the following exchange between the primary judge and Ms Freilich:
"HER HONOUR
Q. You are laughing ma'am what are you laughing at?
A. I'm laughing because he would really press so hard to get that mowing done and he would be in pain after it.
Q. Why do you find that amusing?
A. Because of the - I've never met a person that was so determined to do something and the consequences would be lying in bed for a day or two like totally out of it and pushing themselves-
Q. It amuses you does it.
A. It doesn't amuse me, it's just to me it's a very determined person and I also had friction with that with him to rest instead of - just doing a little bit at a time and then maybe lying down.
Q. I see sorry to have interrupted you. Yes." (Black 219D-L)
This exchange between the primary judge and Ms Freilich was the subject of an adverse comment by the primary judge that "Ms Freilich's explanation for her inappropriate silent mirth and audible laughter regarding [the appellant's] complaints of incapacitating pain was not persuasive": at [246].
(c) The evidence of Mr Podmore
Mr Podmore taught at the Illawarra Institute with the appellant from January 2001 until the appellant left work in May 2004. Mr Podmore shared teaching modules with the appellant in the Painting and Decorating School. The appellant did the first two days and Mr Podmore followed with a further two days to finish off each module (Black 175R-U). Mr Podmore gave evidence of his observations of the appellant prior to the 2001 accident, which included that:
(1) The appellant was very diligent with his paperwork, very neat and very tidy and everything was done very well (Black 176H-J).
(2) The appellant appeared to be a very accomplished and experienced teacher who kept to the topic (Black 177F-K).
(3) The appellant's attitude was always enthusiastic, he was probably a little bit hyperactive, but this was never a problem before the accident (Black 177R-V).
(4) Mr Podmore did not notice anything untoward in the appellant's stiffness or any restriction of movement (Black 178K-L).
Mr Podmore also gave evidence concerning changes in the appellant's behaviour and work performance at the Illawarra Institute after the 2001 accident. His evidence included the following observations relating to that period:
(1) The appellant did not tolerate the students as well as he did before the 2001 accident (Black 180M). There was a notable difference in the appellant's teaching in that he was arguing with students rather than teaching (Black 181G).
(2) The appellant's teaching gradually got worse and his whole teaching deteriorated (Black 181N and R).
(3) The appellant was falling behind a lot in what he was doing. This was affecting him because his office work, which had previously been good, was not being kept up because of the class work and he was having trouble balancing his office and class work (Black 181X-182C).
Medical evidence
The medical evidence relied upon by the parties is summarised at length by the primary judge from [259] to [610]. It covers the period 1991 to 2010. It is unnecessary to repeat that summary here. Parts of the medical evidence are also referred to or cited by the primary judge when analysing the appellant's case between [613] and [697].
The chief medical controversy at trial was the degree to which the 2001 accident aggravated and complicated the appellant's pre-existing condition, and the extent to which other old injuries interfered with the appellant's earning capacity.
The primary judge approached this issue by considering whether the particular disabilities alleged by the appellant were caused by the 2001 accident: at [612]. These were: (a) cerebral concussion, caused by a blow to his head or whiplash injury to his neck, resulting in brain damage; (b) exacerbation of his pre-existing cervical conditions; (c) an injury to his right shoulder, arm or hand; (d) progressive occlusion of his left brachial ulna and radial arteries; and (e) a psychiatric reaction to the 2001 accident.
The primary judge was confronted with reports from a total of 27 medical practitioners and one psychologist. In many instances the experts provided multiple reports, having examined the appellant on a number of occasions. The medical evidence was given by specialists in various fields, including neurology, surgery, psychiatry, psychology, as well as from an occupational physician and general practitioners.
On the primary issue of whether the 2001 accident aggravated and complicated the appellant's pre-existing cervical condition, the medical evidence is reasonably consistent that it did, except for the report of Dr Lim dated 7 September 2004. Dr Lim, an occupational physician, expressed the opinion that the 2001 accident was "minor and had no appreciable effect on the pre-existing condition of his neck. The effects of the subject accident have since ceased" (Blue 258).
The significant controversy posed by the medical evidence was whether the appellant's injuries were transitory and mild and ceased to have any real effect before the appellant left the Illawarra Institute in May 2004.
It is appropriate to refer briefly at this stage to some of the principal medical evidence which supported the appellant's case. This provides the context for the appellant's complaint that the primary judge failed to systematically evaluate the medical evidence, or provide adequate reasons for rejecting the body of evidence supporting the appellant's case. The following references to the medical evidence are not in any way exhaustive, nor intended to suggest that there was not a body of evidence which cast doubt on parts or all of the appellant's case.
Dr Zagami
Dr Zagami's evidence was significant because he examined the appellant both before and after the 2001 accident.
Dr Zagami, a consultant neurologist, first examined the appellant on 10 July 2001 regarding his "unusual sensation from the neck downward". His report of that date noted the appellant's history of the 1991 motorcycle accident, the cervical fusion and a couple of episodes in 2000 in the nature of "funny turns". The appellant described an "ugly feeling as if his veins have turned to metal". He also described "another unusual episode where when he turned his neck to the right he would develop a headache over his whole head and if he turned to the left he had then sensation of being knocked out as he put it". Dr Zagami did not detect any neurological abnormalities, and could not explain the "funny turns". He recommended the appellant should have a CT scan of his cervical spine, which he did before the July 2001 accident.
The appellant next consulted Dr Zagami on 28 August 2001. Dr Zagami recorded the appellant's history of "new symptoms" following the July 2001 accident. Significantly, the symptoms of which the appellant had previously complained, that he got a headache on turning to one side and felt presyncopal on turning his head to the other side, had now resolved. However, the appellant's other abnormal sensation, which he had previously described as "like blood in his veins turning to metal", was occurring more frequently and lasting longer.
Dr Zagami also reported that he observed a marked reduction in neck flexion. There also appeared to be reduced sensation in the appellant's C6 and probably C7 dermatomes on the right. He noted that the X-rays obtained prior to the July 2001 accident showed extensive changes as well as the post-operative changes at the C6/C7 level. He expressed the opinion that there was evidence of mild radiculopathy. He could not explain the other symptoms of abnormal sensations.
Dr Conrad
Dr Conrad, a surgeon, first examined the appellant on 28 October 2003. This date is significant because the primary judge found that the appellant's injuries from the 2001 accident had completely resolved by this date: at [636].
Dr Conrad recorded the appellant's history of symptoms of pain and stiffness in his neck; that before the accident he had a pain level of 1-2 and presently had a pain level of 6. He also recorded that the appellant's pain level had deteriorated considerably following the 2001 accident.
Dr Conrad expressed the following opinion:
"As a result, he aggravated a previously injured cervical spine and very substantially aggravated mainly his pain level and to a lesser
extent his stiffness. This has reflected in an increased difficulty in doing his work, such as computer work and painting demonstrating work and has also had adversely affected his activities of daily living. At this stage he has ongoing symptoms and needs to take pain-killing tablets. He is well motivated and continues to work as a head teacher at TAFE and is able to do this providing he is able
to stand or sit at will and if his computer work is restricted to mensurate symptoms. He also should try and stand or sit at will whilst doing painting demonstrating and not lift anything much more than 5kg in weight.
His prognosis is uncertain." (Blue 103S-X)
The primary judge recorded Dr Conrad's opinion (at [328]) as being that the appellant was capable of continuing to work as a Head Teacher at TAFE. In doing so, her Honour omitted to refer to the important qualifications attached to that opinion as set out above.
The appellant subsequently consulted Dr Conrad in July 2008 and July 2009. In his report of 30 July 2008, Dr Conrad noted that the pain and stiffness in the appellant's right shoulder and weakness in his right arm had gradually and progressively deteriorated since October 2003. He also noted that the appellant described reduced blood flow to his previously injured left brachial artery, which was injured as a result of an accident in the 1970s. Dr Conrad expressed the opinion that the appellant:
"... would have difficulty in continuing to do work on a fulltime basis as a TAFE Teacher, teaching and demonstrating painting, decorating and sign craft. He would have difficulty in lifting his right arm above shoulder level and lifting anything heavy such as anything over 2 kgs to 5 kgs in weight. He certainly should not lift anything above shoulder level. He would be handicapped in doing computer work and in particular, he may have difficulty using his right arm to do keyboard work and to use a mouse. He might be able to do 12 to 15 hours per week of light administrative work or very light teaching work, providing he does not have to do a lot of standing or sitting for long periods of time and not lift anything more than 2 kgs to 5 kgs in weight and not lift anything above shoulder level with his right arm. This should all be part of a structured rehabilitation programme." (Blue 108Q-U)
In a supplementary report dated 25 November 2008, Dr Conrad expressed the opinion that none of the activity on the surveillance video of 1 and 2 December 2005 (which included the appellant scraping wooden supports of a house under renovation), was inconsistent with the appellant's clinical presentation on 29 July 2008.
In his third report dated 14 July 2009, Dr Conrad expressed the following opinion concerning the appellant:
"He would have difficulty in continuing to work as a fullon TAFE teacher demonstrating and teaching, painting, decorating and sign craft. At most, he may be able to do some very light office work for twelve to fifteen hours per week or similar work in a position where he is able to stand or sit at will, not lift anything more than two to five kilograms in weight and not lift anything above should level with his right arm. This should all be part of a structured rehabilitation programme.
As he is struggling to his housework and home maintenance, he might need six hours per week of Home Care assistance.
His prognosis for recovery is poor." (sic) (Blue 117U-Y)
Dr Max Ellis
Dr Ellis, a general surgeon, diagnosed the appellant's symptoms in May 2004 as a musculo-ligamentous contusion, aggravating degenerative cervical change, with secondary effects of referred pain and intermittent neurological deficient in the right upper limb: at [355].
In his second report of 14 April 2008, Dr Ellis opined that the appellant's condition was worse, "particularly in relationship to [the] neck and right arm and mental state impairment": at [366].
Dr Ellis also reviewed the "surveillance video by MJA Investigation" taken of the appellant. In his supplementary report of 24 November 2008, Dr Ellis restated his diagnosis and opinion of the appellant that as a result of the 2001 accident he suffered injuries to his neck and secondary effects in his right arm and impaired mental status as a result of cerebral concussion: at [368].
In a further report dated 18 December 2009, Dr Ellis reiterated his earlier diagnoses and opinion and recommended that the appellant's solicitor arrange further neurological investigations. Dr Ellis opined that the appellant had "lost ... employment with TAFE medically retired ... as a result of the effects of cerebral concussion and contusion": at [377].
Cross-examination of Dr Ellis
Dr Ellis was cross-examined by counsel for the respondents. Cross-examination took place by telephone link as Dr Ellis was unable to attend court. The cross-examination was extremely brief. The cross-examiner attempted to establish that Dr Ellis' opinion was based on an inaccurate history concerning the appellant's history of neck problems. It was suggested to Dr Ellis that he understood that there had been a complete resolution of such problems before the 2001 accident. Dr Ellis disagreed and stated that this was not the history he had been given. He said that he understood the appellant had slight symptoms and problems after the earlier 1991 accident, but they did not interfere with his lifestyle. He added that the effects of the 2001 accident were much more severe and superimposed (Black 236W-237D).
It was next suggested to Dr Ellis that the appellant's neck pain after the 2001 accident had abated. Dr Ellis answered that the history he received was one of general deterioration from 2001 onwards (Black 237J). The cross-examiner then asked Dr Ellis if it would change his view if it was the case that there was evidence that in fact the appellant's neck pain was lessening after the 2001 accident. Dr Ellis answered:
"No, the neck pain and disability from a neck injury such as this with a previous fusion is likely to vary with activities of daily living and a temporary resolution of improvement is irrelevant. I mean, his pain and disability have reoccurred to the point where in 2004 he was medically retired unfit from his work" (Black 237N-P)
Dr Ellis explained that when referring to "temporary improvement" he was referring to "... symptoms and signs, pains and disability from the significant neck injury, will vary from day to day, month to month" (Black 237R). Dr Ellis also gave evidence that the appellant's symptoms varied like anyone else who has had a bad cervical spine injury. He said that there was nothing abnormal or suspicious in the history given by the appellant. There was no challenge to this evidence.
Dr Ellis was then cross-examined on his diagnosis that the appellant had a traumatic brain injury. Dr Ellis noted that he was not a neurologist, but was trained in assessment of mental status impairment and the nervous system for the purpose of the Motor Accident Authority and the Workcover Guidelines. He agreed that the appellant suffered a brain injury before the 2001 accident (being a reference to the 1991 accident), but said that he had recovered from that and was able to function normally and did not have any symptoms of mental status impairment prior to the 2001 injury (Black 238P-S). Although Dr Ellis was not aware of mental status impairment assessment of the appellant after the 1991 injury, he said that the appellant's cognitive ability was not significantly impaired by the 1991 injury, having regard to his clinical course and ability to work and study after that time.
Dr Ellis disagreed with the cross-examiner's suggestion that the appellant's injuries to his neck as a result of the 2001 accident were relatively mild in nature. He said that it does not take much to aggravate things, being a reference to the previous operation for a cervical fusion on the appellant's neck.
There was no direct challenge to the opinions of Dr Ellis concerning the extent to which the previous injury to the appellant's neck in 1991 had resolved prior to the 2001 accident; that his employment was jeopardised in May 2004 by the impairment and disabilities directly related to the 2001 accident; and that it was unlikely the appellant would achieve re-employment in any capacity and physical work was impossible with the pain and disability in his right arm.
Nor was there any challenge to the report of Dr Ellis of 24 November 2008, that having reviewed the investigation film taken on 1 and 2 December 2005, nothing in that film altered his assessment of the appellant as contained in his report of 28 May 2004.
Dr Paul Teychenne
Dr Teychenne, a consultant neurologist, provided various reports commencing in April 2005. The primary judge summarised these reports between [474] to [536].
In his April 2005 report, Dr Teychenne expressed the opinion that the appellant had evidence of a memory deficit, a deficit in concentration ability and an executive frontal lobe deficit as a result of a probable head injury. His prognosis in regard to the right arm was considered fair, but he was not suited for occupations which required heavy lifting. Nor was he suited for occupations which required excess movement of the neck or sudden sharp movements of the neck. He was not suited for occupations which required him to sit or stand in a constant position holding his neck in a constant flexed, extended or rotated position for a period of time.
In a further report dated 8 November 2005, Dr Teychenne recorded that as a result of the 2001 accident the appellant experienced numbness extending down the posterior aspect of his right upper arm into the dorsal aspect of the right lower arm and then down into all fingers of the right hand. He noted the history given to him that a week after the 2001 accident, the appellant noted weakness in the right arm. Dr Teychenne expressed the opinion that it did appear that the appellant disrupted the cervical spine as a result of the 2001 accident, resulting in an exacerbation of the right cervical radiculopathy.
The judgment below
Her Honour's reasons are very lengthy, comprising 729 paragraphs and occupying 126 pages. The structure and approach of those reasons were as follows. After some introductory material, the judgment commences with a summary of the facts from [15] to [226]. This summary is in the form of a narrative which records the appellant's prior injuries and numerous visits to medical practitioners in the course of what the appellant's counsel described was a "fairly long and not uncomplicated medical history". The judgment then refers to procedural matters including the course of the hearing, and sets out a summary of the evidence which is divided into lay and medical evidence.
The lay evidence is dealt with briefly over five pages from [236] to [258]. These paragraphs contain some findings by the primary judge. The summary of the medical evidence is extensive and dealt with over approximately 62 pages, from [259] to [610]. Commencing at [611] to [726], the primary judge analyses the appellant's case in relation to his alleged disabilities, makes a number of findings and reaches her conclusions.
In relation to the appellant's evidence, the primary judge observed that the appellant's "memory of tumultuous events, decades ago, was vague and impressionistic. Cross-examination exposed material inconsistencies and deficiencies in his evidence": at [236].
The primary judge found that part of the appellant's evidence was implausible: at [237]. So far as the reasons for judgment reveal, this was a reference to the appellant's evidence that:
(1) he struck his head on his steering wheel when his vehicle collided with the tow truck: at [237]-[238];
(2) his pain and difficulties with his memory and concentration, caused by the collision, distracted him from his administrative duties and the Illawarra Institute and from his course work for his Master of Education and prevented him completing a doctorate: at [239];
(3) after the collision he was incapable of housework and gardening because of the ensuing pain those activities caused him, whereas the appellant admitted that he may have used a vacuum cleaner and was capable of mowing his lawn: at [240]. In this regard, the primary judge referred to evidence of the appellant and Ms Freilich who were filmed at their house in Lower Beechmont in Queensland using a plane on vertical timber components for a balcony and manoeuvred and used a ladder "unremarkably": at [241], and his evidence that he mowed the lawn around the house in Lower Beechmont and at his home in Molendinar: at [242].
The primary judge considered Ms Freilich's evidence at [243] to [246]. Her Honour noted that Ms Freilich "only really got to know" the appellant when she "was living with him" in his house at Eschol Park in 2004: at [245].
As noted at [47] above, the primary judge adversely commented upon Ms Freilich's evidence regarding the appellant's complaints of incapacitating pain: at [246]. Her Honour described Ms Freilich's evidence concerning the domestic assistance given to the appellant as giving "various vague estimates of her housework for the appellant": at [246].
The primary judge's reasons ascribed very little significance to the evidence of Mr Miller: at [247]-[250].
The primary judge considered Mr Podmore's evidence at [251]-[257]. Her Honour observed that "understandably, Mr Podmore's memory of 'team teaching' 4-day Painting and Decorating modules with the appellant 'quite a few years' before June 2010, was vague and impressionistic": at [253]. The primary judge went on to record Mr Podmore's observation that the appellant seemed quite accomplished as a teacher, was very experienced in what he did but was always hyperactive: at [253].
The primary judge noted Mr Podmore's evidence that increasingly after the 2001 accident, the appellant failed to complete his sections of the Painting and Decorating modules and consequently Mr Podmore had to go back over things with the students: at [255].
The primary judge observed that Mr Podmore "speculated" that there was a change in the appellant's mannerism, three to six months after he heard of the appellant's 2001 accident. Her Honour also noted Mr Podmore's evidence that the appellant was getting a lot behind in what he was doing and this was affecting him because he was so good in his office work: at [257].
Key findings
The key findings or conclusions of the primary judge were as follows. First, that the injuries suffered by the appellant in the 2001 accident were transitory and mild, and had completely resolved by 28 October 2003. This finding is stated at [636] in the following terms:
"For my reasons above and following, I find that the disabling effects of the collision with the tow truck were transient. The collision caused a mild strain of Mr Keith's neck, resulting in a recurrence of his episodic neck pain, muscular stiffness, headache and intermittent right C5/6 and C6/7 radiculopathy, all of which were initiated by his motorcycle accident and fractured cervical vertebrae, ten years earlier. The minor soft tissue injury to Mr Keith's neck and all its consequences, resulting from the collision, resolved satisfactorily by 28 October 2003, at the latest. The collision did not alter Mr Keith's spinal structures or his capacity permanently. The collision did not contribute materially to his incapacity since 4 May 2004 (exhibits AA, 5,6,7,8,11)."
Secondly, that the appellant could have remained employed as Head Teacher at the Illawarra Institute and continued in that position indefinitely. This finding is stated at [701] in the following terms:
"The collision with the tow truck did not shorten Mr Keith's working life. If he had wished to remain in New South Wales, he could have retained his position at the Illawarra Institute indefinitely, performing his administrative duties with his usual
skill, arranging his own classes and delegating part of his teaching duties as he had done and was permitted to do. The Illawarra Institute was within commuting distance from his house at Eschol Park and was accessible by public transport. Whatever deficiencies there were in Mr Keith's team teaching did not jeopardise his position as Head Teacher of the Painting and Decorating school. He was not required to retire
from the TAFE Commission."
As to the first key finding (that the appellant's injuries had resolved by 28 October 2003), the reference by the primary judge at [636] to "my reasons above" appears to be a reference to [627]-[635], in which her Honour makes certain findings concerning the appellant's pre-existing cervical condition. The primary judge stated baldly that she was not satisfied of the following matters:
(1) That the appellant was fit to continue participating in sporting events, including City to Surf races after August 1994: at [628].
(2) That until 25 July 2001 the appellant was doing everything normally: at [630].
(3) That the 2001 accident incapacitated the appellant for much of his practical demonstration work and distracted him from his paperwork: at [631].
(4) That the appellant's retirement from the TAFE Commission in May 2004 was causally related to the collision with the tow truck: at [633].
(5) That the appellant's incapacity for fulltime employment in trades in which he is qualified is causally related to the 2001 accident: at [634].
(6) That any pain or headache suffered by the appellant after 28 October 2003 was causally related to the 2001 collision: at [635].
Insofar as the primary judge referred at [636] to "my reasons ... following", this was a reference to her Honour's analysis of some of the lay evidence concerning the appellant's physical condition prior to the 2001 accident, and some of the medical evidence concerning the effects of the 2001 accident: at [637]-[659].
The primary judge approached the medical evidence by accepting Dr Conrad's opinion that the 2001 accident aggravated stiffness, but mainly pain, in the appellant's previously injured cervical spine: at [649], but went on to find that by 28 October 2003 the appellant had regained his capacity for normal duties as Head Teacher of the Painting and Decorating School at the Illawarra Institute: at [651]. This conclusion was expressed to be based on an acceptance of Dr Conrad's opinion that the appellant was capable of continuing such duties: at [652]. However, as noted at [64] above, the primary judge misinterpreted Dr Conrad's opinion by failing to refer to the important qualifications noted in Dr Conrad's opinion.
The primary judge did not accept the opinion of Dr Max Ellis that the 2001 accident aggravated degenerative change in the appellant's cervical spine, causing referred pain and a neurological deficit in his right arm.
The primary judge was not satisfied that the 2001 accident injured the appellant's right shoulder, arm or hand: at [662]. In this regard, her Honour rejected the opinion of Dr Conrad that the 2001 accident strained the appellant's right shoulder and permanently impaired his right arm: at [664]. Her Honour accepted Dr Ryan's opinion that the condition of the appellant's wrist was unrelated to the 2001 accident: at [667].
The primary judge rejected the appellant's claim that the 2001 accident resulted in his incapacitating left brachial artery insufficiency, due to disuse of his left arm: at [671]. In this regard, her Honour accepted the opinion of Dr Ryan that the 2001 accident did not injure the appellant's left arm: at [676].
The primary judge also rejected the claim that the appellant had a psychiatric reaction to the 2001 accident resulting in his depression, anxiety, phobias, increased moodiness and irritability, post-traumatic stress disorder and suicidal thoughts: at [683]. In this regard, the primary judge did not accept the opinion of Dr Teychenne that the appellant's history of a "cold metal sensation" and a "blackout" feeling was "a positive Lhermitte sign" of spinal cord compression: at [691].
As to the second key finding (that the appellant could have remained employed as Head Teacher at the Illawarra Institute indefinitely), the primary judge reasoned that:
(1) The appellant could have continued to perform his administrative duties with his usual skill and delegated part of his teaching duties as he had done and was permitted to do. Further, any deficiencies in the appellant's team teaching did not jeopardise his position as Head Teacher: at [701].
(2) The Illawarra Institute was within commuting distance of the appellant's house at Eschol Park and was accessible by public transport: at [701]. This was an implicit rejection of the significance of the difficulties which the appellant said he experienced with driving.
(3) The appellant's hyperactivity and predisposition to anger and violence would have impaired his ability to communicate constructively with outspoken young students, irrespective of the 2001 accident: at [702].
(4) The surveillance video of the appellant in December 2005 is persuasive evidence of his earning capacity in employment resembling his "practical work" at the Illawarra Institute, in particular, renovating his unit in Nerang in Queensland and the house at Lower Beechmont was probably more strenuous than his normal duties as Head Teacher: at [704].
(5) Since May 2005, the appellant's earning capacity had decreased as a result of the progressive degeneration of his right wrist, and since March 2007, his earning capacity had decreased as a result of the permanent occlusion of his left brachial, ulnar and radial arteries, but none of those conditions is causally related to the 2001 accident: at [705].
Submissions
The appellant submitted that notwithstanding the "extraordinary" length of the judgment, the issues for determination were relatively simple, however the primary judge failed to provide adequate reasons for her findings. This complaint was made in relation to her Honour's assessment of both the lay and medical evidence.
First, as to the lay evidence, the appellant submitted that the primary judge's conclusions necessarily involved a rejection of the evidence of the appellant, Ms Freilich and Mr Podmore. The appellant complained that the reasoning process was not disclosed.
In oral submissions, the appellant highlighted a number of examples of this complaint, including:
(1) In relation to the appellant's evidence, which was relevant to his physical condition prior to the 2001 accident, the primary judge stated (at [628] and [630]), without providing reasons, "I am not satisfied" that the appellant was fit to continue participating in sporting events, including City to Surf races, after August 1994. However, the primary judge's finding recorded at [639], is that from about August 1994, the appellant's personal circumstances and the exigencies of his employment precluded his participation in marathons and sporting events, although the appellant continued exercising as his disposable time permitted. The significance of this qualification to the earlier finding (at [628]), was not considered by her Honour.
(2) In relation to Ms Freilich's evidence, which was relevant to the appellant's claim for domestic assistance, the primary judge found (at [715]) that her evidence did not support his claims. However, the six transcript references cited by the primary judge as implicit support for this finding, did not contradict the claim that Ms Freilich was providing domestic assistance in the order of 12.5 to 14 hours per week, or that the overall division of labour between her and the appellant was an 80/20 division.
(3) In relation to Mr Podmore's evidence, which was relevant to the appellant's work performance before and after the 2001 accident, the primary judge (at [253]) described his evidence as "vague and impressionistic". The appellant complained that the primary judge failed to understand that Mr Podmore's evidence was to the effect that the appellant's abilities and performance at work decreased significantly from a time shortly after the 2001 accident.
Further, in relation to Mr Podmore's evidence, the appellant contended that the primary judge erred when she referred to Mr Podmore's favourable evaluation of the appellant's "office work" as support for the finding that the effects of the 2001 accident had ceased by 28 October 2003. This was in the context of considering a report of Mr Anthony in November 2005, a clinical psychologist: at [548]. However, her Honour had misunderstood that Mr Podmore's evaluation related to the appellant's performance of office work before the 2001 accident. The same misunderstanding occurred in the context of the primary judge's consideration of Dr Max Ellis' opinion: at [357].
Secondly, as to the medical evidence, the appellant submitted that the primary judge failed to provide reasons why the opinion of certain doctors were preferred over others. The appellant characterised the primary judge's summary of the medical evidence as basically involving a close paraphrase of each and every medical report that was tendered. The appellant acknowledged that there is some commentary and some evaluation of parts of the medical evidence or statements made in the course of the reports. The appellant complained however, that there is no systematic evaluation of the reports and there are no conclusions stated by the primary judge about the overall reliability of the reports, or of the opinions that are expressed in them.
Counsel for the respondents properly accepted in oral argument that the judgment did not explain how the many cited references to evidence, for example at [715], supported the finding there stated, namely, that Ms Freilich's evidence did not support the appellant's claim for domestic assistance.
Counsel for the respondents did not attempt the significant task of seeking to demonstrate that there were adequate reasons provided in respect of each of the complaints identified by the appellant in respect of those paragraphs of the judgment which were expressed in similar terms of "I am not satisfied that ...": see [628], [630], [631], [633], [634] and [635] of the judgment. Nor did counsel for the respondents attempt to refute in any substantive way the other criticisms of the primary judge's treatment of the lay evidence highlighted in the appellant's oral submissions referred to above.
Requirements for proper reasons for judgment
The duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]:
"It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality."
A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be:
"forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression .... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. "
In Mitchell v Cullingral Pty Ltd, Campbell JA gave the lead judgment (with which Allsop P and McColl JA agreed) and stated the requirements for proper reasons for judgment in the following terms:
"116 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]."
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA (Ipp JA and Bryson AJA agreeing) referred to various observations in earlier authorities about the extent to which reasons should deal with the evidence. Her Honour noted (at [60]) that the test of adequacy is relative. The following principles articulated by McColl JA in Pollard at [56]-[66] are of relevance in the present case.
First, the general proposition as stated by Samuels JA in Mifsud v Campbell at 728:
"...[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634."
Secondly, a judge should refer to evidence which is important or critical to the proper determination of the matter. Whilst it is unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: Beale v Government Insurance Office of New South Wales at 443 per Meagher JA.
Thirdly, bald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]:
"It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates."
Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO at 443-444:
"Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."
Fourthly, where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's: Palmer v Clarke (1989) 19 NSWLR 158 at 170 per Kirby P (Samuels JA agreeing).
Further, as noted by McColl JA in Pollard v RRR Corporation Pty Ltd at [66]:
"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] - [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing)."
Consideration
The reasoning process in the judgment below is seriously deficient. In my view, the reasons given by her Honour, for the rejection of the body of evidence supporting the appellant's case, failed to comply with the minimum standard necessary to discharge the judicial obligation to give reasons.
Because of the need to order a new trial at which arguments similar to those advanced in this Court may have to be considered, it is unnecessary to deal with all of the appellant's arguments, or with the respondents' responses to them. It is sufficient to refer to the major respects in which the reasoning process would, in my view, have left the appellant with a significant sense of grievance. He would be not only disappointed in the result, but disturbed by it: see Mifsud v Campbell at 728.
As noted above, the factual inquiry confronting the primary judge concerned the causal relationship between the 2001 accident and the appellant's alleged disabilities, and whether the 2001 injuries were a cause of his retiring from work in 2004.
The primary judge recorded the appellant's alleged disabilities at [612] as follows:
"(a) cerebral concussion, caused by a blow to his head or a whip lash injury to his neck, resulting in brain damage;
(b) exacerbation of his pre-existing cervical condition;
(c) pain, weakness and numbness in his right shoulder, arm and hand;
(d) left brachial artery insufficiency; and
(e) a 'psychiatric reaction' to the collision."
The findings of the primary judge regarding these alleged disabilities are set out at [613] to [697].
Three global observations
Three global observations can be made in relation to this section of the primary judge's reasons. The first is that when analysing the appellant's case, the primary judge adopted an almost formulaic approach to her statement of reasons: at [613]-[697]. The deficiencies in the reasoning process flowing from this approach are examined below.
Secondly, many of the findings by the primary judge are expressed without reasons, but rather by simply citing extensive passages of the transcript, various exhibits or paragraphs of the parties' written submissions as implicit support for the findings. As a consequence, her Honour's reasons contain many bald conclusionary statements, and the process of fact-finding is otherwise obscured. The reason why evidence, which was accepted, was to be preferred to that of other witnesses is generally not explained.
Thirdly, in the absence of cross-examination, the primary judge was required to analyse the expert evidence in order to make findings on the issues to which the experts' evidence was directed. This may, and usually does, involve the acceptance of one expert or group of experts over another, not on the basis of a demeanour finding, which is unavailable when none of the experts are cross-examined, but on the cogency of the evidence, given the issues addressed: Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [132] per Beazley JA (as her Honour then was) (Basten and Macfarlan JA agreeing); HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 at [87] per Tobias JA (Mason P and Hodgson JA agreeing).
The obligations of a trial judge to undertake this task were reviewed by Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 at [60]-[68]. The trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed).
As observed by Beazley JA in Taupau at [135], where there has been no cross-examination:
"... there has to be a reasonable basis as to why some evidence is accepted and other evidence is not. In that regard, the evidence cannot be considered in isolation from other evidence. The cogency of the experts' evidence is dependent upon there being a basis established in the evidence for the views expressed."
Thus an unchallenged expert report may be rejected or subject to criticism or doubt; for example, if the report is ex facie, illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established: M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing).
It is apparent from the reasons for judgment that the primary judge failed in any meaningful way to deal with the unchallenged expert evidence in the manner required by the authorities.
Inadequate statement of reasons
As to the first observation referred to above, the primary judge's approach was to first make a finding in terms of "I am not satisfied ..." of a particular matter concerning the appellant's alleged disabilities. The particular matters are identified by reference to various paragraphs of the appellant's written submissions below. In the case of the alleged exacerbation of the appellant's pre-existing cervical condition, findings in these terms appear at [627] to [635].
Next, the primary judge stated her ultimate finding concerning each alleged disability in the following terms, "For my reasons above and following, I find that ...": at [636]. At the end of this paragraph various exhibits are cited, but without explanation of their relevance or significance to the finding.
There then follows a number of paragraphs from [637] to [659] which appear to be "reasons" for the earlier finding at [636], that the disabling effects of the 2001 accident were transient. At the end of each paragraph her Honour cites extensive passages of the transcript, various exhibits (again without identification of the relevant parts or explaining their significance), and on some occasions, also cites various paragraphs of the parties' submissions below.
The parties are left with the task of having to turn to each of the cited references to the transcript, the exhibits or the parties' submissions to attempt to glean the implicit basis for her Honour's findings. In many instances however, the cited references do not directly support the finding, and the exhibit references are to medical opinions which are competing. No reasons are given for accepting one body of medical evidence over the other.
The primary judge adopted a similar approach when expressing her reasons in relation to the appellant's other alleged disabilities: cerebral concussion and brain damage: at [613]-[614] and [615] ff; the right shoulder, arm and hand: at [660]-[661] and [662] ff; the left brachial artery insufficiency: at [670]-[672] and [673] ff; and a "psychiatric reaction": at [683]-[685] and [686] ff. These reasons contain the same deficiencies as referred to above.
Failure to analyse the medical evidence
As to the second and third observations referred to above, it is sufficient to refer to the primary judge's approach in her reasons to the principal medical evidence supporting the appellant's case.
First, the primary judge accepted Dr Conrad's opinion that the 2001 accident aggravated the appellant's previously injured cervical spine, but nonetheless found that the appellant was capable of continuing his duties by October 2003, citing Dr Conrad's opinion. In reaching this conclusion, the primary judge misinterpreted Dr Conrad's opinion, which is set out at [63] above.
Nor does the primary judge engage with the subsequent reports of Dr Conrad concerning the appellant's progressive deterioration since October 2003 and the impact on his ability for fulltime work.
Secondly, the primary judge dismisses the evidence of Dr Max Ellis, largely on the ground of an incorrect history. The primary judge considered that Dr Ellis assumed, erroneously, that until 25 July 2001, the appellant was capable of "heavy manual work in full employment capacity without difficulty" and could "compete in athletic performance": at [643]. However, this was not the case. First, the reference by Dr Ellis to "heavy manual work" performed by the appellant after the 1991 accident, related to the appellant demonstrating physically demanding aspects of the trades he taught (Blue 76U). Secondly, the appellant gave unchallenged evidence that he could and did compete in athletic events up until the late 1990s and otherwise continued to exercise as his disposal time permitted.
Dr Max Ellis was the only expert witness cross-examined. The cross-examination has been referred to above. At the end of the cross-examination, Dr Ellis' opinion was left largely unchallenged and undisturbed. But for reasons unexplained, the primary judge did not address the cross-examination, and proceeded to reject Dr Ellis' opinion that the 2001 accident aggravated degenerative change in the appellant's cervical spine, causing referred pain and a neurological deficit in the right arm.
Thirdly, the primary judge rejected Dr Conrad's opinion that the 2001 accident strained the appellant's right shoulder and permanently impaired his right arm: at [664]. In doing so, her Honour cited various passages of the transcript, two exhibits, and a paragraph of the respondents' submissions below as implicit support for this finding. However:
(1) None of the cited references to the transcript are relevant, except the appellant's evidence of occasional problems with his right hand since 1999 (Black 87D-Q).
(2) The references to the exhibits are those of Dr Conrad himself and a report of Dr Patel dated 16 August 1999 (Exhibit 5). Dr Patel's report concerned a bone scan performed on the appellant's body in 1999, which revealed severe arthritic change in the region of the right shoulder.
Insofar as the appellant had a pre-existing arthritic right shoulder and occasional problems with his right hand, the primary judge failed to engage with the evidence that the 2001 accident caused pain, weakness and numbness in the appellant's right shoulder and arm, or aggravated a pre-existing stiff right shoulder.
Fourthly, the primary judge accepted Dr Ghaly's diagnosis concerning the appellant's complaints of weakness, numbness and tingling sensation in his right arm between 22 October and 9 December 2004. Dr Ghaly's opinion was that the C5/C6 and C6/C7 disc lesions, which pre-existed the 2001 accident, had disabled the appellant permanently. Her Honour cited various exhibits and paragraphs of the respondents' submissions as support for this finding: at [656].
However, none of the references to this evidence appear to support this finding. In particular:
(1) Exhibit W, is an analysis of certain compensation payments. This was irrelevant;
(2) Exhibit Y, is a report of Dr A Casolin dated 23 December 2004, which is referred to at [40] above. It does not provide direct support for her Honour's finding;
(3) Exhibit Z, are the reports of Dr Ghaly which refer to the 2001 accident as resulting in a soft tissue injury in the neck and aggravating pre-existing problems in the neck. These reports do not directly support her Honour's finding; and
(4) Exhibit HH, is a report of Dr Saks dated 23 May 2001, which referred to the scanogram in May 2001 of the surgical fusion of the appellant's spine following the 1991 accident. No reasons are given for why this report supports her Honour's finding.
It is unnecessary to examine all of the appellant's complaints concerning the inadequate reasons given by the primary judge in relation to her dealing with the medical evidence. The matters examined above are sufficient to make out this complaint.
The deficiencies exposed in the reasoning process in respect of the appellant's alleged disabilities, were carried over into her Honour's assessment of the appellant's claims for future wage loss and domestic assistance, as these were predominantly based on the two key findings referred to above: that the appellant's disability caused by the 2001 accident ceased at the latest on 28 October 2003: at [698], and that the appellant could have remained employed at the Illawarra Institute indefinitely: at [701].
This makes it unnecessary to examine the appellant's detailed attack on the primary judge's reasons in relation to these aspects of the damages claim. The reasoning process generally suffers from the same difficulties in approach which have already been examined. Rather than evaluating and assessing the evidence and giving reasons for preferring one body of evidence over the other, her Honour's approach was generally limited to citing numerous passages of the transcript and exhibits as implicit support for particular findings, without further explanation.
Conclusion
It was not sufficient for the primary judge to simply set out the evidence and other material upon which her findings were based and then to state that she was not satisfied of particular matters in reaching her conclusions. The reasons are deficient in the present case because the primary judge did not analyse the evidence and explain why some parts of it do and others do not lead to the ultimate conclusion. The mere citing of passages of the transcripts and exhibits as implicit support for her Honour's findings does not equate to the provision of reasons. The primary judge failed to evaluate and assess the competing medical evidence (which was largely unchallenged) in any systematic fashion. Further, in accepting certain medical evidence as a basis for rejecting the appellant's alleged disabilities, other evidence supporting the appellant's case was generally ignored without explanation.
Making due allowance for the necessity to economise in order to provide coherent and tolerably workable reasons, in my view, the reasons for judgment in the present case do not reach the minimum acceptable level to constitute a proper exercise of judicial power.
New trial
Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale v GIO at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd at [67].
The respondents did not contend that this was a case where the evidence was, in effect, all one way so that the only conclusion open on the evidence was that which the primary judge reached.
In some cases of inadequate reasons, where there is no credit issue, the Appeal Court may be in as good a position to decide the matter as the primary judge: Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130; at [37] per Nettle JA; Pollard v RRR Corporation Pty Ltd at [67] per McColl JA (Ipp JA and Bryson AJA agreeing).
These proceedings are not such a case because credit issues are involved. The respondents accepted that for this reason, the proceedings must be remitted for a new trial on damages. Unfortunately, there is no alternative to this course, notwithstanding the great hardship on the parties and witnesses which will be occasioned in respect of an accident which occurred over 13 years ago.
Orders
I propose the following orders:
(1) Appeal allowed.
(2) Set aside the orders made by O'Toole DCJ on 4 May 2012.
(3) Remit the matter to the District Court for a new trial on damages.
(4) Costs of the first trial to abide the event of the second trial.
(5) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
SIMPSON J: I agree with the orders proposed by Gleeson JA for the reasons given by him.
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Decision last updated: 15 October 2013
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