Martin v Byrnes

[1999] NSWCA 144

CITATION:	Martin v Byrnes [1999] NSWCA 144
FILE NUMBER(S):	CA 40425/97
HEARING DATE(S):	2 March 1999
JUDGMENT DATE:	25 May 1999
PARTIES :	Jadwiga Anna Martin v Peter Byrnes
JUDGMENT OF:	Priestley JA at 1; Stein JA at 64; Sheppard AJA at 65

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	SC 20977/94
LOWER COURT JUDICIAL OFFICER:	Master Greenwood

COUNSEL:	P. Semmler QC/C. Locke/N. Mullany (Appellant) M.L. Williams/A. Casselden (Respondent)
SOLICITORS:	David Velleley (Appellant) Abbott Tout (Respondent)
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - claim for damages for psychiatric injuries - appellant's psychiatric history prior to accident - psychiatric deterioration after accident - causal connection between accident and subsequent psychiatric condition - unreliability of appellant's evidence - non-acceptance of corroborative witnesses evidence - expert psychiatric evidence
ACTS CITED:	n/a
CASES CITED:	State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Coghlan v Cumberland [1898] 1 Ch 704
DECISION:	Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40425/97
CLD 20977/94

PRIESTLEY JA
STEIN JA
SHEPPARD AJA

Tuesday, 25 May 1999

MARTIN v BYRNES

The appellant was injured when she was involved in a motor vehicle accident with the respondent’s car. Damages were claimed for physical and psychiatric injuries arising out of the respondent’s alleged negligence. Master Greenwood held the respondent to be guilty of negligence and the appellant was awarded damages for her physical injuries, but not for any psychiatric injuries.

On appeal, the appellant argued that:

1. In reaching the conclusion that the plaintiff’s evidence was on the whole vague, rambling and unreliable the Master palpably misused his advantage of seeing and hearing the plaintiff, and ignored the incontrovertibly established fact that the plaintiff was suffering from a well established psychiatric disorder at the time of the trial.

2. The Master’s conclusion that a nexus had not be established between the plaintiff’s motor vehicle accident and her subsequent deterioration:

(a) was inconsistent with facts incontrovertibly established by both lay and expert evidence; and/or

(b) was inconsistent with the observation made by the Master during the course of a judgment on costs handed down on 1 July 1997 that “The plaintiff’s condition, being what it is, I am not at all convinced that the plaintiff did not genuinely believe that her difficult position for which she was crying out for help was not caused by the motor vehicle accident”; and/or

(c) was, on the totality of the evidence, glaringly improbable.

3. The Master’s conclusion that any disability from which the plaintiff suffered at the time of the trial differed little from the disabilities from which she suffered prior to the motor vehicle accident suffered from the same errors as 2 above.

4. On the totality of the psychiatric evidence, and taking into account the plaintiff’s undoubted mental illness when she gave her evidence, the probabilities outweighed the conclusion reached by the Master concerning the nexus between the plaintiff’s disabilities and the motor vehicle accident.

5. In light of the Master’s acceptance that:

(a) the plaintiff genuinely believed that her condition had been caused by the motor vehicle accident; and/or

(b) the plaintiff was suffering from serious emotional difficulties his conclusion concerning the nexus between the plaintiff’s disabilities and the motor vehicle accident was contrary to the test for causation at common law in March v Stramare (1991) 171 CLR 508.

6. The Master erred in concluding that Dr Koziol was unaware of the plaintiff’s previous history in that the plaintiff had sought psychiatric assistance prior to the motor vehicle accident.

7. The Master erred in concluding that the plaintiff would not have had any prospect of obtaining employment with Genzyme Corporation, absent the motor vehicle accident.

8. The Master’s assessment of damages for economic and non-economic loss was inadequate.

On cross-appeal, it was argued that the Master erred in making no order for costs.

HELD:

1. Master Greenwood’s conclusion about the unreliability of the appellant’s evidence should not be disturbed.

2. The Master failed to give adequate weight to aspects of expert psychiatric opinions and this led to a basic flaw in the conclusion reached. There did exist a casual connection
between the appellant’s accident and her subsequent deterioration. The conclusion that
should have been reached at the trial was that whilst the appellant had a history of
psychiatric illness prior to the accident, the accident materially contributed to her
subsequent deterioration.

3. Dr Koziol was aware of the appellant’s previous psychiatric history prior to the motor vehicle accident.

ORDERS

1. The amount of the judgment of Master Greenwood be set aside.

2. A new trial, limited to damages, be ordered.

3. The respondent is to pay the appellant’s costs of the appeal.

4. Costs of the first trial and of the new trial to be determined by the judge hearing the new trial.

1 PRIESTLEY JA:

Main features of case.
2 The main features of this case are these. The appellant had had a troubled history before she was injured when her car collided with the respondent’s car on 15 December 1993. She brought proceedings against the respondent for damages on the footing that his negligence caused the collision. Her case was heard at first instance by Master Greenwood. The damages claimed fell broadly into two categories, for her physical injuries and their consequences, and for what was called in her statement of claim depression and anxiety, but which came to be called in the hearing of the litigation, psychiatric injury. Master Greenwood found the respondent guilty of negligence and awarded damages for the physical injuries but not for psychiatric injury.

3 The appellant’s case for damages for psychiatric injury, presented both through medical evidence and evidence of lay witnesses, was that she had been energetic and successful before the accident and had become psychiatrically disturbed after and because of the accident. The respondent put evidence before the court which, it was submitted, showed the appellant was quite a different person in a number of important respects, both before and after the accident, from the one claimed in her case. Master Greenwood held that “the nexus between the [appellant’s] accident and her deterioration was not established”. In the appeal it was submitted for the appellant that this conclusion of Master Greenwood was wrong and should be overturned.

Master Greenwood’s reasoning .

4 At the beginning of his reasons on damages, Master Greenwood said difficulties in the case were the appellant’s problem in recollecting some events in her life, and the lack of accord between assertions of lay witnesses and the medical evidence.
5 He first considered the appellant’s medical condition before the accident. At different times in her life she had been anorexic and bulimic and had relationship problems with her family. She had also had a number of accidents which left her with a bad back, following which symptoms of depressive illness appeared. In June and July 1993 she had consulted psychiatrists and was diagnosed as showing symptoms of insomnia, chronic depression, family problems, intermittent bulimia and inability to cope. She was having suicidal thoughts.
6 Master Greenwood then summarised the appellant’s employment and educational history. He found that she was less qualified than she from time to time claimed and that one employer had found her performance unsatisfactory in material respects, in particular lateness for work, and disappearances during working hours.
7 He next considered her medical and employment history after the accident. This showed, in his opinion, that in the accident she had experienced nothing more than a musculo-ligamentous strain, and that there was no objective evidence of anything more. Next he said that the appellant “presented as a woman who is quite dishevelled and remote”. He formed the view that her evidence was unreliable and that when in the witness box she “was very much over presenting”. He then dealt briefly with each of the corroborative lay witnesses, giving reasons why he did not accept that their evidence supported the appellant’s case. He then dealt with the expert psychiatric evidence and explained why none of that persuaded him that there was a causal link between the accident and the appellant’s later deterioration. One feature of the facts which Master Greenwood seems to have thought significant was that the appellant had not complained of any symptoms of psychiatric injury to any psychiatrist for a period of about two years after the accident. There was evidence suggesting that during that period the appellant was living in much the same way, and with the same problems, as before the accident. She was unemployed from March 1993 to June 1994 and was worried about her mother, who was dying of cancer. One of her witnesses said the appellant told her that her mother had said to her that she believed the cancer was caused by worry about the relationship the appellant had formed with a male friend the mother did not approve of. The mother died in August 1994.
8 Master Greenwood summarised his conclusions as follows:
“Any disability that the plaintiff is now suffering from differs little from the disabilities claimed by the plaintiff prior to the motor vehicle accident. As I have indicated earlier I can find nothing in the evidence which I am prepared to accept which will enable me to establish a nexus on balance between the plaintiff’s present condition and the motor vehicle accident. Indeed subsequent to the accident the plaintiff suffered the loss of her mother which obviously has been a blow to her.”
9 This was the basis on which Master Greenwood decided that the appellant’s damages award should include nothing for psychiatric injury. It was against this non award that the appellant’s appeal was directed.

The appeal .

10 In the appeal the appellant’s counsel submitted that Master Greenwood was so demonstrably wrong in his factual findings that the tests which an intermediate appellate court must use in deciding whether to interfere with factual findings made by a trial judge and depending on the assessment and credibility of witnesses, were all satisfied. Reliance was placed on State Rail Authority of New South Wales v Earthline Constructions Pty Limited, HCA 3, ((1999) 73 ALJR 306), the most recent example of such a situation being dealt with in the High Court.
11 Detailed written submissions for the appellant dissected Master Greenwood’s reasons for finding the facts as he did and referred the court to relevant passages in the evidence. The oral submissions for the appellant highlighted the main points in the appeal in support of the submission of plain error on the part of the Master.
12 Cases such as these can present this court with difficult problems. The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions all show that courts such as this court are duty bound to reverse conclusions based on trial judges’ views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. It is sometimes hard to decide whether a particular case falls into one category or the other. For the appellant it was contended that the present case clearly fell into the plainly wrong category.

The appellant’s attack on the findings at first instance, in more detail .

13 Although the appellant’s submissions were put in a more complex form, they consisted in substance of two main branches; first, criticism of Master Greenwood’s conclusion that the appellant was an unreliable witness and of his findings in regard to each of the witnesses upon whom the appellant had relied for her claim that her condition after the accident was much worse than it had been before and that this worsening was due to the accident; second, that even discounting the evidence in the way Master Greenwood had, there still remained expert opinion, which there could be no reason for not accepting, that the accident at least to some extent contributed to a deterioration in the appellant’s health by way of psychiatric injury.
14 To consider the merit, or otherwise, of the first branch of the submissions it is necessary to look at the evidence of each of the witnesses to see whether this court could properly say that the overall effect of the criticisms was of such weight as to show that Master Greenwood had clearly made such a major mistake or major mistakes in his fact finding that this court would be justified in upholding the appellant’s appeal.
15 The context in which Master Greenwood saw and heard the appellant’s witnesses. In considering the evidence of the appellant’s witnesses it is necessary to bear in mind that when they were giving evidence, Master Greenwood had before him evidence of psychiatric difficulties suffered by the appellant before the accident, which was not known or was only partially known by the witnesses, but about which they were cross-examined. The appellant’s case may well have suffered in Master Greenwood’s view from the feature that although reports from sixteen medical practitioners, two psychologists and one physiotherapist were tendered on her behalf, only two dated from before the accident. Of these two, one was from a prosthodontist who had examined the appellant’s problems associated with a fractured upper central incisor root and had advised her about the possibilities of treatment, in early 1990. The other was from a dental specialist who had carried out periodontal treatment on the appellant in early 1992. (This report said patient management was difficult - persistent lateness for appointments and a panic attack during treatment.) In the light of evidence obtained and tendered by the defendant, there can be no doubt that the appellant’s pre-accident history of psychiatric problems was relevant to her damages claim and Master Greenwood must have wondered why it was left to the respondent to put it before the court. (The appellant’s legal representatives must have become aware of this evidence only very shortly before the hearing, because Dr Koziol, one of her expert witnesses, was asked in his evidence in chief, to say what difference it made to his opinions. The primary case presented for the appellant still remained one of “good before the accident - mentally disturbed after it”).
16 In the respondent’s case reports dating from before the accident were tendered from ten medical practitioners and one massage therapist. Some of these were the outcome of earlier accidents the appellant had been involved in. Dr J. Evans saw her in late March or early April 1992 about the effects of a fall from a horse and an accident soon afterwards in November 1990 when she was struck by a falling neon sign. He recorded that she told him that in addition to backache pains of some severity, she slept poorly, was itchy and jumpy, light headed, sometimes dizzy and was suffering severe mood swings and headaches.
17 Another of the pre-accident reports tendered by the respondent was that of Dr Ross Mellick, who saw the appellant on 19 May 1993. She saw him also about the aftermath of the fall from the horse and the neon sign incident. In the report it was recorded that the appellant had a BSc and also an MSc in Immunology and Genetics and that she had no history of any psychological or psychiatric disorder. This doctor could find no organic basis for her complaints and concluded that she exhibited “features which suggest her now to have a chronic pain syndrome associated with other symptoms of psychosomatic origin”. The appellant did not have the university degrees which, inferentially, she reported, nor was it correct that she had had no previous psychiatric problems.
18 Particularly significant for present purposes is the fact that Dr A. Katelaris, a general practitioner, by referral dated 2 June 1993 sent the appellant to Dr Canaris, a psychiatrist. In the referral letter Dr Katelaris said that the appellant had presented with reactive depression, had multiple problems at present, including a controlling mother who was very disapproving of her current relationship, and that as well she had bulimia. In his report, dated 5 July 1993, Dr Canaris diagnosed the appellant as suffering major depression which might appropriately be referred to as dysthymic disorder because of the chronicity of her symptoms, these problems being set against a background of marked personality difficulties dating back to her adolescence. In his view she needed psychotherapy to deal with her relationship with her parents, her self image and self esteem.
19 The appellant’s witnesses. These fell into three categories, the plaintiff herself, the lay corroborative witnesses and the witnesses qualified to give opinions on medical and psychiatric matters.
20 The appellant answered cross-examination about psychiatric difficulties and treatment she had before the accident with statements of inability to remember. Master Greenwood said that these answers showed a lack of memory not exhibited in examination in chief. He also thought the appellant was over presenting in the witness box; he thought that she assumed an air of being unable to cope but when she felt she had lost control in cross-examination she displayed a different aspect, showing an intent and careful interest in the questions. These impressions, coupled with her claim of non recollection of her previous psychiatric consultations, the over statement of her qualifications and denial of her previous psychiatric condition convinced Master Greenwood that the appellant’s evidence could not be relied upon.
21 Having read the evidence for myself I think Master Greenwood’s conclusions about the unreliability of the appellant’s evidence can not and should not be disturbed in this court. Her evidence was unreliable and her case at trial was pitched too high. The case that in the beginning was sought to be made was that she was a woman who before the accident was vibrant, energetic, healthy, and after the accident, and because of it, severely damaged in a psychiatric sense. I can say at this point that I think the Master was justified in rejecting this case.
22 Nor do I think the criticisms made by the appellant of Master Greenwood’s views about the lay corroborative witnesses were made out. These witnesses were Dr Sally Pitman, a doctor of philosophy who was a research fellow in children’s cancer research, Ms Barbara Martin (the appellant’s sister), Mr Richard Seto, Mr Helman Rogas and Mr Craig Read.
23 The evidence in chief of the first four of these was all to the same general effect. They had known the appellant before the accident and she was vibrant, energetic and well in control of her life; after the accident she was not as exuberant, she was continually depressed, she could no longer cope with her problems and she could no longer bounce back from adversities. This evidence was given in generalities.
24 When, however, each of the witnesses was required to be particular in cross-examination, the effect of the evidence in chief favourable to the appellant was almost entirely undermined. None of the witnesses who gave evidence of the appellant as she was before the accident knew of the problems of depression and bulimia that she was experiencing in 1993. With the exception of her sister, none of them knew of her adolescent problems. To all of them she had clearly managed to convey a more favourable picture of her working capacity, qualifications and success than was the case. Her sister, although she had some knowledge of the problems suffered by the appellant during her adolescence and later, had only a very sketchy knowledge of what had happened to her in the years before her accident. Thus, the basis for the “before” side of the comparison between “before” and “after” upon which the appellant was relying heavily at the trial faded almost completely away.
25 The “after” side of the comparison was also shown by the cross-examination to have problems. In particular, none of the witnesses was clear about the dates they were referring to when they described the after-accident depressed and distressed state of the appellant. Notwithstanding the problems of 1993 before the accident, the appellant had apparently recovered, at least physically, from the effects of the accident during the first part of 1994 and then, in June 1994 had obtained employment with a company called Mentor which was (in Master Greenwood’s words) “extremely remunerative”. Then her mother died in August 1994 and shortly afterwards she began to attend a Pain Management Centre. She received treatment for pain steadily through 1995. In October 1995 Dr Koziol began to treat her for psychiatric disorder. She spent a month (from 17 October to 17 November 1995) in the St John of God Hospital under Dr Koziol’s care. After that he treated her throughout 1996 up to the time of the hearing before Master Greenwood in February 1997.
26 Having read the evidence of the lay witnesses with a view, amongst other things, to seeing whether any of them clearly located their impressions of the big changes in the appellant as having been noticeable during 1994 or the first half of 1995, I have not been able to find any. Three impressions are clear from the evidence of these witnesses. One is that they all believed the appellant had changed significantly after the accident and they wanted to make that clear to the court; another is that they had not seen the appellant with any frequency at all after the accident and the last is that to the extent they were able to say when it was they had noticed the change in the appellant it was within a year or eighteen months before their giving of evidence before Master Greenwood.
27 Counsel for the appellant criticised the reasons given by Master Greenwood for his non-acceptance of the corroborative witnesses as persuasive that the change in the appellant was caused, wholly or partly, by the accident. Some of the reasons he gave were sketchy. Having read the evidence, my view is that he could have stated stronger and more detailed reasons for his conclusion, but that there is nothing particularly to be criticised in the reasons he did give. He did not give any specific reasons in regard to the evidence of Mr Read. He had been the managing director of the company for which the appellant worked between February 1991 and March 1993. His evidence was that she had done a specialised job well in that time. In that time he had found her bubbly and easygoing, not introspective and never giving reason to doubt her honesty. In cross-examination Mr Read agreed that towards the end of her employment she had become less suited to sales work than previously and had been in quite a bit of pain. In re-examination it appeared that he had only seen her once after March 1993. Overall, the evidence of this witness can have been of little assistance to Master Greenwood in deciding whether the appellant had shown that she had suffered significant psychiatric deterioration after the accident, and if so whether it manifested itself within say two years of the accident, and whether the accident had materially contributed to any change he did find.
28 The two expert witnesses upon whom the appellant particularly relied were Doctors Grady and Koziol, both psychiatrists.
29 Dr Grady did not give oral evidence. A report from him dated 10 August 1995 was in evidence. His report mentioned the anorexia the appellant had developed in adolescence, but he was evidently not told of the psychiatric problems and examinations she had had during the year before the accident. He thought she suffered from chronic pain syndrome and depression which partly resulted from the trauma of the accident. Of his evidence Master Greenwood said “The history he took from the plaintiff was incorrect. His evidence must also be disregarded”. Had Dr Grady’s report been the only evidence upon which the appellant was relying for her psychiatric damage case, there could, in the circumstances of the case, be no quarrel with the decision to set it on one side.
30 Dr Koziol’s evidence was given after the appellant’s principal evidence, and that of Dr Pitman and Ms Martin, and before that of the other corroborative witnesses. Master Greenwood was able to observe him being examined and cross-examined and to form an assessment of his evidence when asked to deal, in examination in chief and cross-examination with details of the appellant’s pre-accident psychiatric problems, of which she had not told him and he had only very recently learnt.
31 Master Greenwood’s approach to Dr Koziol’s evidence was strongly influenced by the appellant’s not having told him of her pre-accident psychiatric history. He said that he thought that after the appellant’s previous medical history was made clear to Dr Koziol, Dr Koziol nevertheless felt obliged to continue with what he had come to court to do, to support the appellant in her damages claim. Master Greenwood said Dr Koziol “did not depart from his brief even confronted with the further history”. This involves something of an overstatement. Dr Koziol was not “confronted” by this history for the first time in cross-examination. He was asked to take it into account in examination in chief. In examination in chief, Dr Koziol said, after taking those further matters into account:
“Following the accident there appears to have been a quite marked deterioration in her level of functioning although she continued to work. As I documented she had disturbed mood still, dysfunctional, et cetera. It appears the motor vehicle accident was a significant contributing factor.”
32 In cross-examination Dr Koziol was asked in various ways about the difference the information he had only earlier that day first obtained made to his earlier opinion about the relation of the appellant’s psychiatric condition to the accident. He continued to say that he thought there was a significant connection. When the various other factors that could reasonably be regarded as contributing to her later condition were put to him he said:
“I am saying that from the end of 1993 a process was initiated and a particular situation, ups and downs.”
33 He was then questioned about the significance of the appellant’s having lost her employment in the middle of 1993. The transcript then records:
“Q. My question to you is: Why eliminate that history as a cause or an initiator of her current problem in preference to a motor vehicle accident that happened when she was, on one view of the evidence, off work because of back pain? A. Well, I don’t believe I’m attributing her state in 1995 when I first met her solely to the motor vehicle accident, and there was many other factors involved.

Q. On the rather more complete history that you have now - the motor vehicle accident, the contribution of the motor vehicle accident - is it not impossible to quantify it so small as to be negligible, isn’t it? [There is either one too many or one too few negatives in the question, but what was intended seems clear enough and seems to have been clear to the witness.] A. I can’t agree with that, no. ”

34 A little later the witness was referred to an accident suffered by the appellant in January 1993 and a history given of the appellant having been in quite significant discomfort and suffering significant disability as a result. There then followed the question and answer:
“Q. Particularly for someone who seems to be vulnerable to stressors such as this lady, that history is likely to be a significant contributing fact for any psychiatric condition that she subsequently developed? A. That could be an attributing factor.”
35 A little later the witness was referred to the work apparently done reasonably successfully by the appellant in 1994 and asked whether that showed she had pretty much recovered from the accident of December 1993. The cross-examiner did not get the answer he wanted, and continued:
“Q. I’m not suggesting that there was absolutely no consultation or treatment thereafter before the bulk of the treatment was over and she was back working in this job and doing it quite successfully. It points to a significant or substantial recovery, doesn’t it? A. That is certainly one possible interpretation, yes.”
36 The next part of the cross-examination was based upon reports prepared by Dr Robert Haik. Several reports by him were put in evidence by the respondent and he later gave oral evidence in the respondent’s case. Dr Haik’s evidence is important to the conclusion I have reached in this appeal, and so are Dr Koziol’s answers to questions based on Dr Haik’s reports. I therefore set out part of the relevant cross-examination. Dr Koziol agreed that Dr Haik was an experienced psychiatrist of many years standing. The cross-examination then proceeded:
“Q. Would you agree on the histories that you now have that there is clear evidence that dysfunction was present by at least 1990? A. Is that the end of the question?

Q. Yes. A. Dysfunction was present at 1990 - no, I don’t have any evidence of that, sorry, what you presented to me.
Q. I will put this proposition to you. As she has grown older and become aware that her life is getting harder and not easier, her adaptability diminished and ability to weather crises and the 1993 position was just another unfortunate experience as was the fall from the horse in 1990 and the fall down the steps. The latter two both led to her losing her job. Her personal resources are so marginal that she cannot sustain an adaptable integration of life. Do you agree with that proposition? A. Time will tell I think.
Q. Can I put this to you: Miss Martin has been a mentally disturbed person for many years and the 1993 collision was simply an intercurrent happening with her troubled passage through life. Because of all the medical attention she received, the aftermath of the collision appeared significant but it isn’t? A. and the question?
Q. Do you agree with that as a statement from a psychiatrist. A. I certainly agree that the motor vehicle accident was one of a number of contributing factors, but it may have been a necessary - in the sense if it hadn’t have happened, I wonder - I doubt that she would be as disabled as she is now.
Q. That is based on an assumption of major and continuing pain as a result of the accident, isn’t it? A. That’s one of the factors, yes.
Q. If you take the motor vehicle accident out of the equation, you could still get to her present position based on the history that you have seen from the effects of one or other of the fall down the steps, the awning falling on her head, the horse accident, the loss of her job, the loss of her mother, couldn’t you? A. Couldn’t I what?
Q. You could still get to the same position that she is in today? A. Well, by her own testimony, you said that she managed to weather the motor vehicle accident and return to work, so it cuts both ways.
Q. Quite right. So is the answer to my question: Yes, you could still get to the present position without the motor vehicle accident being in the equation? A. Yes, it’s possible if other things happened, yes.
WILLIAMS: Q. You would agree that, based on the history that you now have, with this statement - ‘Ms Martin has a very long history of psychiatric disorder dating back to at least her early adolescence. She was dependent upon alcohol, codeine and even amphetamines before the motor car accident.’? A. I agree with all that, yes.
Q. And she demonstrated personality disorder as well as anorexia and bulimia well before the motor car accident? A. I don’t doubt that she has certain personality vulnerability but I am not sure that anybody has diagnosed her with personality disorder.
Q. She did not tell you about past psychiatric history, did she? A. The anorexia was certainly brought up. The consultation with Dr Russell, she didn’t mention.
Q. The significant recent history was kept secret from you, was it not? A. I wouldn’t put it in those terms, no.
Q. It was not disclosed to you? A. No, she has a very vague - I guess what’s disclosed depends upon the questions that are asked.
Q. One explanation for failure to disclose is a wish to consciously mislead you about the cause of her current problems, is it not? A. That may have been a factor. ”

37 In re-examination he was asked:
“Q. In answer to a question, you agreed with a proposition that it is possible that she might still have got to the position that she is at today without the motor vehicle accident. Is it your view that it is likely that would have been the case, given what you know - that is that she would be as disabled as she is now without the motor vehicle accident?”
38 His answer was:
“On the basis that she got to 35 or 36 without reaching this level of disability, like the vicissitudes of life, I think it is unlikely that she would have got to the stage without the motor vehicle accident.”
39 Master Greenwood did not accept Dr Koziol’s opinion that there was at least a significant contribution to the appellant’s later psychiatric deterioration made by the accident. After reading Dr Koziol’s evidence and the criticisms of it, I do not find Master Greenwood’s reasons very persuasive for rejecting it entirely. I suspect that part of his reaction to it may have been due to his apparent impression that Dr Koziol first learnt of the previous psychiatric history of the appellant, not revealed to him by her, when cross-examined about it. Although it appears that it can only have been on the morning of the hearing that Dr Koziol was first told by the appellant’s legal representatives of the earlier history, he had had a chance to consider it before giving his evidence about it and it was in examination in chief that he was given the opportunity of expressing his opinion, taking into account the further information.
40 If the only evidence for the appellant at the trial on the causal connection between the accident and her subsequent psychiatric condition had been that of Drs Grady and Koziol, I would have been inclined to think that it was more likely than not that on the balance of probabilities, a person of the appellant’s undoubted psychiatric vulnerability immediately before the accident would suffer from increased psychiatric problems after it and would have been inclined to give greater weight to Dr Koziol’s evidence than Master Greenwood did. However, those inclinations may not have been sufficient to lead me to conclude that the fact finding of Master Greenwood was sufficiently demonstrated to contain material mistakes as to justify upholding the appeal.
41 The evidence of Dr Haik. In certain respects the evidence of Dr Haik and that of Dr Koziol is complementary in a way that does not seem to me to be subject to the criticism of both doctors made by Master Greenwood. With due respect to Master Greenwood it seems to me that he has not taken into account the whole of the evidence given by Dr Haik. All that Master Greenwood said about Dr Haik’s evidence was:
“Dr Haik gave evidence on the part of the defendant, but regrettably Dr Haik was of the view that the plaintiff was not a ‘people person’ and as such would prefer to be alone. This was obviously incorrect on the evidence before me. The strong evidence of Dr Haik, which supported the defendant’s contention of little damage, was not of assistance as the premise on which it was based was not supported by other evidence.”
42 Again with respect, it seems to me that the foregoing passage shows a less than complete appreciation of Dr Haik’s evidence.
43 Dr Haik’s first report was dated 11 October 1995. This was based on an interview with the appellant, apparently alone. He had been supplied with copies of some post accident reports. The appellant gave him no details of her pre-accident psychiatric problems and consultations. He nevertheless was alive to the relevance of her pre-accident history to the condition she was in when he interviewed her. He said in the synopsis with which he began his report that longitudinal exploration of the appellant’s life clearly suggested she was suffering a disabling Avoidant Personality Disorder which had led to a significant and similar disability by 1990. He continued:
“Her subliminal awareness that her quality of life was progressively deteriorating produced a further dysfunctional episode by 1992-93. Because of these previous episodes, the 1993 collision and the understandably earnest hospital investigation have caused her symptoms to burgeon disproportionately.

Ms Martin has insightlessly and unconsciously translated her emotional suffering, engendered by her personality defects, into abnormal illness behaviour (Pain Disorder). ”

44 Dr Haik noted that the appellant told him she had been taking Prozac since April 1994.
45 In pars 4.3 and 4.4 of his report Dr Haik stated his opinion that the appellant was suffering from two descriptions of mental disorder in terms of the categories set out in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders, (DSM), a manual which, upon the evidence in the case is routinely used by psychiatrists for classification purposes.
46 Before expressing those opinions as to categories Dr Haik had stated his opinion in his own words:
“Ms Martin might now be considered a malingerer - faking her complaints for financial gain - or she might be unwittingly and seriously psychologically disturbed and hardened into a sick role.

One believes she falls into the latter category as there is a pre-collision pattern of her sliding into a dysfunctional state. She exhibited a total insightlessness and has blindly wandered in a fog of abnormal illness behaviour. That is, despite her disabling complaints, she had made no real effort to learn what her real problem is and how to extricate herself from it. She obviously needs the neurotic (irrational, unrealistic) satisfaction of seeing herself as a victim. The 1993 collision offered her this opportunity.
Her distracted behaviour with me reflected her unwillingness to grasp an understanding of what she was actually suffering and allowed her to remain aloof from establishing a rapport during the interview that might disclose the ‘real’ nature of her pathology. ”

47 Although not expressed in lawyers’ terms of causal relationship on the basis of the civil standard of the onus of proof, it seems to me quite clear that in this paragraph Dr Haik was saying that because of the 1993 collision the appellant had immediately begun to focus her reactions upon it in a way which contributed to either a recurrence or an increase of her earlier mental illness. My understanding of Dr Haik’s meaning has been formed partly in light of his remarks in the synopsis about the accident and medical treatment having “caused her symptoms to burgeon ...”.
48 In par 4.3 of the report Dr Haik expressed the opinion that the appellant fulfilled the definition in the DSM of the mental disorder of “Pain Disorder associated with psychological factors”. The criteria for this disorder were:
“A. Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.

B. The pain causes clinically significant distress or impairment in social, occupational, or other areas of functioning.
C. Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.
D. The symptom is not intentionally produced or feigned (as in malingering or factitious disorder).
E. The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder. ”

49 In par 4.4, Dr Haik categorised the appellant as also falling into the DSM description of “Avoidant Personality Disorder”. If a person showed four or more of seven listed characteristics, then that person would be classified as within the category. In addition to the seven numbered features, some associated features were described, one being that persons within the category were described by others as being “shy, timid, lonely, isolated”. Dr Haik expressed the opinion, not so much because of what the appellant told him, but because of what he deduced from certain things she said and did not say, that she must have exhibited some of these features. In his evidence he said at one point that the appellant was not a “people person”, this being a shorthand reference to some of the features just mentioned. Master Greenwood thought that such a description was not justified on the evidence before him, and because of that, did not take Dr Haik’s evidence into account in the respondent’s favour. In reaching this conclusion he did not mention the fact that his criticism of Dr Haik’s evidence dealt with and undermined (if indeed it really did undermine it) I have some doubts about whether Master Greenwood’s reasons for discarding the second diagnosis entirely were fully justified, but in view of my conclusions stemming from the other diagnosis, I need not take my doubts further.
his diagnosis of one of the two mental disorders he had diagnosed. The facts in evidence appear to support the other diagnosis, that of Pain Disorder. Further, they also seem to support and be explained by what Dr Haik set out in par 4.2, reproduced above. Further again, Master Greenwood does not appear to have considered whether what was said by Dr Haik in par 4.2 and in regard to the Pain Disorder diagnosis supported the appellant’s case.
50 In par 4.6 of his first report, Dr Haik said, after mentioning the stresses to which the appellant was subject at the time of the accident that “It is not surprising that she immediately, [that is, after the accident] and probably unconsciously, assumed the abnormal illness behaviour referred to ... as a means of taking time out from everything falling apart”.
51 Finally, so far as the first report is concerned, Dr Haik said in par 4.8, his Conclusion,

“Although it seems her problems began after the 1993 collision, there is clear evidence the dysfunction was present at least by 1990. As she has grown older and become aware that her life is getting harder and not easier, her adaptability diminished and she has no-one to help her weather crises (para 4.4). The 1993 collision was just another unfortunate experience; as was the fall from the horse in 1990 and the fall down the steps in 1992-3. The latter two both led to her losing her job. None of the three produced any significant bodily damage.

As with the two previous misadventures, she did return to work in 1994095 but could not sustain employment. Her personality resources are so marginal, she cannot sustain an adaptable integration in life.
One did not consider there was any malingered feigning or conscious exaggeration or elaboration in her presentation today than those who must have assessed her in 1990 and 1992-p93.
Ms Martin has been a mentally-disturbed person for many years and the 1993 collision was simply an intercurrent happening in her troubled passage through life. Because of all the medical attention she has received, the aftermath from the collision appeared significant. It isn’t .”

52 In the last paragraph just cited, bearing in mind what else Dr Haik had said on this point, the words “intercurrent happening” seem to me to mean, in lay language, a further blow worsening the appellant’s condition. The important part of the next then following sentence seems to me, again as a layman, to be that Dr Haik was expressing the opinion that the aftermath from the collision appeared significant to the appellant, although it wasn’t in an objective sense. Again in lay language, this seems to me to mean that part of the appellant’s mental disturbance consequent upon the accident was a belief held in fact, although without good objective reason that her collision injuries were causing her problems and that this state of mind was contributing to mental disorder. This is sufficient to establish a causal connection in legal terms between the accident and her psychiatric damage.
53 Dr Haik supplied a further report dated 15 November 1995 in which his comment on additional material which he was then given was that it basically supported his previous report and did not cause him to vary his conclusions.
54 Dr Haik gave a final report dated 7 January 1997 in which he was supplied with information about the appellant’s pre-accident psychiatric history which he had not known before. After considering this further material he stated his conclusion as follows:

“The December 1993 collision offered her the opportunity to comfortably fall into the sick role and to receive serious treatment programs at RPAH and St John of God. This is despite her major psychopathology clearly predating the 1993 collision.

Her major personality disorder has precluded any benefit that treatment might offer.
There is basically no good evidence that the 1993 collision has contributed to her decline other than offer her an opportunity to rely on the good services of the medical profession to maintain her sick role and sustain her abnormal illness behaviour. Her current outcome is no different despite the plethora of specialist treatments compared to her anticipated dilemma had she not been exposed to these agencies. ”

55 I read the first of the above paragraphs in the same way as I indicated in regard to earlier statements; that is that “the opportunity to comfortably fall into the sick role” means in legal language that the accident caused a worsening of the appellant’s mental disorder. I read “offer her an opportunity to rely on the good services of the medical profession etc” in the third paragraph in the same way. The second and final sentence in that second paragraph seems to me to be inconsistent with the observations immediately preceding it, unless it is read as recognising that the “current outcome” to which the 1993 collision had contributed had been arrived at earlier than it would have been if the accident had not happened then.
56 In his oral evidence Dr Haik maintained his opinion about the appellant’s pain disorder. The meaning I have put upon his conclusion in his January 1997 report seems to me to have been confirmed by an answer he gave in cross-examination:

“I suspect that the various accidents, as they are called, have all been influential in diminishing her coping ability in the world. Each accident that she has is an excuse to her to become less competent in life because of the personality disorder and she has become a victim as a result of many incidents in her life.”
57 He was then immediately asked:
“Q. But it is accidents that she can - I think you have already conceded this - they are the things that she can latch on to as a means of fulfilling a need. Is that right? A. Correct.”
58 In the extracts I have earlier reproduced from Dr Koziol’s evidence when asked about Dr Haik’s opinion, it seems to me that there was a significant degree of agreement between them about the effect upon the appellant of the accident. It also seems to me that the reasons why Master Greenwood set their evidence aside do not apply to this aspect of the evidence of the two of them.
59 Their opinions also seem to me to raise for consideration the question whether the appellant’s reason for not mentioning to various persons to whom she spoke after the accident her pre-accident psychiatric history was that she was now blaming everything (mistakenly, but in fact) on the accident, and this was itself a symptom of her psychiatric disorder, at least partially contributed to by the accident. Such a possibility does not appear to have been considered by Master Greenwood.

Opinion .
60 Upon taking into account the various matters I have mentioned, my conclusion is that Master Greenwood did not give the weight to aspects of the expert psychiatric opinions in the case before him that they should have been given and that this led to a basic flaw in his conclusion that there was no causal nexus between the appellant’s accident and her mental illness.

61 In my opinion the conclusion called for on the evidence was that such a connection had been established. What should have been held, in my opinion, was that there was a sufficient causal connection and that the difficult task of assessing how much worse the appellant’s mental disorder had become, because of the accident, should have been undertaken. In my opinion the conclusions which should have been drawn from the evidence at the trial were that the appellant had been mentally disturbed before the accident and that the accident contributed to a worsening of her mental disturbance after the accident.
62 It follows from my opinions that I think there should be a setting aside of the amount of the judgment below. The appellant asked this court to undertake the assessment, but it seems to me this is clearly a case where an assessment simply on the papers should not be attempted. A judge at first instance should have the opportunity of evaluating the appellant and the lay and expert witnesses. In my opinion there should be a new trial limited to damages, the costs of the appeal should be borne by the respondent, and any questions of costs either of the first trial or of the new trial should be in the discretion of the judge hearing the new trial.
63 These conclusions make it unnecessary to consider a cross appeal by the respondent directed to the particular costs order made by Master Greenwood in respect of the first trial.
64 STEIN JA: I agree with Priestley JA, his reasons and proposed orders.
65 SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Priestley JA. I am in agreement with his reasons and conclusions and with the orders which he proposes.
66 The only matter I would add is that I do not think that anything we say should be regarded by the Judge or Master who re-hears the case as reflecting a binding view of the facts of the matter. For the reasons given by Priestley JA this trial has miscarried. As Priestley JA says, a judge at first instance should have the opportunity of evaluating the appellant and the lay and expert witnesses. I make it clear that, in my opinion, the judge should go to the task afresh unrestrained by conclusions reached or reasons given which explain why it was necessary to order that the matter be tried again. The reason why I think the trial miscarried is fundamentally the Master's failure properly to analyse and give appropriate weight to the evidence, both written and oral, of Dr Haik. If that had been done, the result may well have been different.
67 A new trial in this case is unfortunate because of the length of time it is likely to take. The hearing of the first trial occupied four hearing days. The medical evidence was complex. More than thirty medical reports were tendered. Some of the doctors gave oral evidence. Additionally, there was lay evidence particularly from the appellant herself. If the new trial proceeds, the same exercise will need to be undertaken. In the light of the judgments that there now are in this case, that of the Master and that of this Court, it may be that reference of this matter to an appropriate mediator may yield a result satisfactory to both parties without the time and expense involved in a new trial.

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