Mason v Demasi - [2009] NSWCA 227

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Mason v Demasi [2009] NSWCA 227

HEARING DATE(S): 26 May 2009

JUDGMENT DATE:
31 July 2009

JUDGMENT OF: Basten JA at 1; Simpson J at 10

DECISION: (i) Appeal allowed; (ii) Judgment of the District Court of 3 April 2008 quashed; (iii) The appellant’s claim be remitted to the District Court for a re-trial limited to the question of damages; (iv) The respondents to pay the appellant’s costs.

CATCHWORDS: APPEAL – approach taken by trial judge resulted in inadequate award of damages – trial judge failed adequately to assess appellant’s psychological/psychiatric condition – reliance placed upon psychiatrist’s report in assessing psychological/psychiatric condition misplaced – no proper basis for findings adverse to appellant – correct approach outlined – comparison of appellant’s pre-injury and post-injury functioning – credibility findings adverse to plaintiff not warranted on proper examination of evidence – evidence by witness unfairly discounted – failure by psychiatrist to diagnose post-injury psychological condition – failure to identify pre-injury psychological condition – reasoning unsustainable – matter remitted to District Court for re-trial limited to question of damages - DAMAGES – assessment of damages by trial judge for personal Injury sustained as a result of a dog attack – psychological injury

LEGISLATION CITED: Civil Liability Act 2002
District Court Act 1973
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638

PARTIES: Penelope Jayne Mason (Appellant)
Antonio Demasi (First Respondent)
Giovannina Demasi (Second Respondent)

FILE NUMBER(S): CA 40195 of 2008

COUNSEL: S Norton SC/M Fraser (Appellant)
C Adamson SC/B Kelleher (Respondents)

SOLICITORS: Brydens Law Office (Appellant)
Moray & Agnew (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5495 of 2006

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 3 April 2008

CA 40195/08

BASTEN JA
SIMPSON J
31 July 2009

Penelope Jayne MASON v Antonio DEMASI & Anor

Judgment

1 BASTEN JA: The circumstances of this case are fully set out in the reasons of Simpson J, with which I agree. Given those circumstances, the difficulties facing the trial judge are not to be underestimated. Nevertheless, and indeed for that very reason, error might have been avoided had his Honour expressly identified and addressed those difficulties.

2 First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

3 The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.

4 Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant’s oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts.

5 As Simpson J notes, the trial judge received less assistance than he might have by way of diagnoses of the applicant’s current psychological condition. The fact that she may have been vulnerable to psychological deterioration before the attack would not preclude a relevant causal link between the attack and her current condition; the ‘eggshell skull’ principle may encompass a vulnerable psyche. That in turn may require discounting of damages to take account of the possibility that the applicant would have suffered psychological deterioration independently of the tortious conduct at some future time and in any event: see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 and Civil Liability Act 2002 (NSW), s 13. Similarly, it might have been necessary to consider to what extent the motor vehicle accident in 2006 contributed to the appellant’s psychological state at the date of trial.

6 None of these issues was adequately addressed. Rather, as Simpson J explains, the trial judge was distracted from the real issues, perhaps in part by the search for inconsistency in the appellant’s statements, first pursued by Dr Samuell, particularly in his second report. Indeed, closer attention to the rules of evidence governing the admissibility of expert opinion might have led to a greater focus on the weaknesses of Dr Samuell’s reports, on which the trial judge placed some reliance, in relation to questions of psychiatric injury and diagnosis.

7 For the reasons given by Simpson J, the trial miscarried and his Honour’s judgment in an amount of $39,719.40 should be set aside. No reference was made in the course of the hearing to any costs order.

8 Ultimately, for the appellant to recover an amount in excess of that awarded by the trial judge will depend on the plaintiff establishing, on the basis of her own evidence and that of relevant health professionals, that she has suffered on-going psychiatric injury as a result of the attack by the respondent’s dog. Because her credibility was very much in issue, this is not a task that can be undertaken by this Court.

9 Before the Court can order a new trial, it must be satisfied that the errors occasioned some substantial wrong or miscarriage: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). In the present case that requirement is satisfied by the fact that the appellant has not had a proper trial according to law. Accordingly, the orders proposed by Simpson J should be made.

10 SIMPSON J: Pursuant to s 127 of the District Court Act 1973, the appellant appeals against the whole of the judgment of O’Connor DCJ given in the District Court on 3 April 2008.

11 The appellant claimed damages for personal injury that she sustained as a consequence of an attack upon her by a Rottweiler dog owned by the respondents. The respondents admitted liability and the claim proceeded as an assessment of damages. The award of damages was governed by the Civil Liability Act 2002. No issue arises with respect to the construction or application of that Act.

12 After hearing evidence, O’Connor DCJ awarded the appellant damages in the sum of $39,719.40. That sum was made up of $35,500.00 by way of damages for non-economic loss, an agreed amount of $2,719.40 in respect of out-of-pocket expenses already incurred, and a sum of $1,500.00 with respect to treatment the appellant established that she would require in the future.

13 The appellant claims that the sum awarded is inadequate, and that the inadequacy resulted from errors in the approach taken by O’Connor DCJ.

The facts

14 The appellant was born in 1970 and was aged 35 at the time of her injury. She was the mother of three children, then aged 17, 13 and 4 (born in 1988, 1992 and 2000). She lived with them on a small acreage in the west of Sydney.

15 On 12 November 2005 she was walking with her youngest child and their dog in the area where they (and the respondents) lived. The Rottweiler ran from the driveway of the respondents’ home towards the appellant and her son. She sought to protect the child and took the force of the attack. The dog bit her on her legs and arms. Initially, the clothing she was wearing gave her some protection from the attack, but the dog bit through the clothing. The appellant described the dog as having gone into “a frenzy”. She said it “ripped [her] leg apart”. She felt its teeth penetrate the clothing, and break the skin. Eventually, a neighbour came to her assistance. She was taken by ambulance to Liverpool Hospital, where she underwent surgery. She remained in the hospital overnight, but discharged herself, contrary to medical advice, the following morning, in order to care for her children.

16 Her principal (physical) injury was to the calf of her left leg. She still bears some scarring on that leg.

17 There were in evidence photographs of the appellant’s leg, taken in the immediate aftermath, and others showing the scarring, eighteen months later (Blue, 10 and 69).

18 The appellant was not in paid employment in November 2005. She had, in earlier years, before the birth of her children, had paid employment as a clerical assistant. She became pregnant in 1988 and gave birth to her first child at the age of 17. She married the father of her second child shortly after that child’s birth in 1992, but, although they had been in a relationship for some years prior to that, the marriage lasted only six weeks. It ended violently. The appellant has been in a relationship with Mr David Cazzy, who is the father of her youngest child, for some years. Up until the time of the attack, they had not co-habited, but they had plans to marry. Mr Cazzy has since terminated those plans. He did this as a consequence of what he described as the appellant’s altered personality and functioning after the dog attack. He does, however, remain in contact with the appellant and her family.

19 The appellant particularised the physical injury thus caused, and these particulars were not subject to any significant dispute. She also particularised a psychological or psychiatric injury, in the following terms:

“(f) anxiety

(g) depression

(i) fear of dogs

(j) loss of self esteem

20 It was his Honour’s assessment of this claim that gave rise to the real dispute in the District Court, and in the appeal in this Court. His Honour substantially discounted the appellant’s claim in this respect. In essence, he concluded that any psychological or psychiatric condition from which the appellant now suffers pre-existed the injury caused by the dog attack, and was not caused by it. He reached this conclusion largely on the basis of what were said to be inconsistencies in histories taken by various medical practitioners, and a psychologist, who examined her for medico-legal purposes, or for the purposes of treatment, and also what were said to be inconsistencies between those histories and the oral evidence given by the appellant.

21 In doing so, he made findings relevant to the appellant’s credit, adverse to her.

22 An issue also arose concerning a claim by the appellant for damages for future economic loss.

The evidence

23 Given the manner in which the appeal was conducted, it is convenient to set out, in some detail, an overview of the evidence in the trial. So far as possible, I will confine the references to the evidence to what is necessary to understand, and determine, the principal issue raised on the appeal.

24 Oral evidence was given by the appellant and by her former fiancé, Mr David Cazzy.

25 Unless otherwise stated the references to the oral evidence are references to the Black Appeal Book.

The appellant’s evidence

26 After giving a short personal history, the appellant described the attack by the Rottweiler. She said:

“… [I] saw a dog running full pelt out of a driveway and before I even got to turn my head back around the dog was on top of me so I just shielded my child inside my body for about 20 minutes, 25 minutes.

… It bit all over my legs and my arms but I had good protective clothing on so it bit everywhere trying to – it just went into a frenzy and bit everywhere but only ripped my leg apart at the end because it couldn’t get wherever it wanted to go and tried to rip me out of the way …

27 She recounted having been taken to hospital by ambulance where she underwent surgery and remained overnight before discharging herself (against medical advice) the next morning (14-15).

28 She said that thereafter she was confined to bed for seven weeks and needed crutches and a wheelchair for a couple of months because the stitches would not heal. She retains a significant scar which she said “devastated” her because it “looks horrific” and is “disgusting”. She said she was unable to walk in high heels and:

“… I actually can’t feel my foot walking.”

29 She said that prior to the attack, she had had recurring dreams which featured a dog attack. She spoke of her pre-injury recreations, which included abseiling, rock climbing, bushwalking and horse riding (approximately fortnightly) (36).

30 She said that she is now unable to ride a horse because she cannot put her boots on and could not mount the horse.

31 She began seeing a psychologist (Mr Gerard Glancey) because of the emotional difficulties she experienced trying to live with the pain and to cope with her daily functioning. In September 2006, after a consultation with Mr Glancey, she was involved in a motor vehicle accident.

32 With respect to any pre-injury psychological or psychiatric condition the appellant said little in her evidence in chief. It was suggested to her that, in 2000, following the birth of her third child, she was suffering from post-natal depression but that she did not believe that she did so suffer.

33 In cross-examination, she agreed that she had told Dr Robertson (see below, a psychiatrist who examined her at the request of her solicitors and provided a medico-legal report) that she had no past history of psychiatric disorder and said that she believed that that was true.

34 She was asked what she had told Dr Robertson about her alcohol consumption before the attack. She said:

“I would have drunk socially once a year prior to the dog attack and I still do drink socially but sometimes in certain events I might – there were times there that I did have to have a beverage.”

35 She was also asked about a history she had given to Dr Doron Samuell (see below, a psychiatrist who examined her on behalf of the respondents and also provided a report) that she had no previous psychiatric difficulty. She said that she believed that to be true.

36 She said that in about September 2006 she asked her solicitors to refer her to a psychologist and saw Mr Gerard Glancey on four occasions.

37 Cross-examination predominantly focussed upon what the appellant had said to the various health professionals and to drawing out inconsistencies or self serving omissions from the histories and information given by her. When cross-examined about alleged omissions from information given by her to either Dr Robertson or Dr Samuell, the appellant said:

“The ten minute visits? There wasn’t enough time.”

Mr Cazzy’s evidence

38 Mr Cazzy said that he and the appellant had become engaged during the year before the dog attack and were hoping to be married soon after. He had never co-habited with her, but intended to do so after marriage. Nevertheless, he saw the appellant “probably every afternoon”. He called in on his way home from work to see the appellant and their child. He said that the appellant had been working for the Benevolent Society with the ambition of a career in Childhood and Youth Health. She intended to undertake a TAFE course.

39 He described the appellant, before the dog attack, as:

“Very bubbly, very friendly person. Very outgoing, full of empathy for everything.”

40 She was “fantastic, great” with the children. He had never known her to raise her voice to them or smack them. She was always patient with them.

41 He said that since the dog attack, she had become a “very moody person”, she “scares easy”. He said:

“Anything startles her she’s scared, she’s – you can’t keep her on the same page as you half the time. You’d be talking one – she’s like going off with the fairies half the time … Even with the children, the same thing.”

42 Prior to the incident she was “very rational”.

43 She is now impatient with the children and unable to tolerate pressure. She cries a lot. The engagement was terminated but they remained “mates”.

44 He said that she “on occasions”, such as birthdays, consumed alcohol. He would not describe her as a non-drinker.

45 He had never known her to see a doctor except with respect to the children prior to the dog attack. He believed that she had, after that event, seen a doctor about anxiety.

46 He was not aware of her suffering post-natal depression following the birth of their child, although he was aware that she had been “a little bit down”.

47 After the injury, he obtained a wheelchair to help the appellant get around the house, and she used this to take herself from the bed to the bathroom when she needed to.

48 He was aware of a motor vehicle accident the appellant had in September 2006. The appellant had rung him but he could not make sense of what she was saying. She was screaming.

49 He had never known the appellant to abseil, but she rode a horse daily.

The medical evidence

50 All medical evidence was given in documentary form. It gave rise to significant cross-examination of the appellant, and, to a lesser extent, of Mr Cazzy.

51 The medical evidence was:

(a) in the appellant’s case:

(i) Liverpool Hospital clinical notes, concerning the appellant’s admission on 12 November 2005, and recording observations of her, and treatment given to her. (Documentation, produced on subpoena by Liverpool Hospital, included the record of an admission in 2000 for the birth of the appellant’s second child and records of pre-natal consultations);

(ii) report of Dr Mahmoud Hamad, dated 31 May 2007. Dr Hamad had been the appellant’s treating general practitioner for some years;

(iii) report of Dr Peter Conrad, dated 15 November 2006. Dr Conrad is an orthopaedic surgeon to whom the plaintiff was referred for medico-legal assessment;

(iv) two reports of Dr Andrew Robertson, dated 5 December 2005 and 27 October 2007. Dr Robertson is a consultant general and forensic psychiatrist to whom the appellant was referred by her solicitors for medico-legal assessment;

(b) in the respondent’s case:

(i) two reports by Dr Doron Samuell, dated 18 April 2007 and 30 November 2007. Dr Samuell is a psychiatrist to whom the appellant was referred for medico-legal assessment;

(ii) report of Mr Edward Gibson, dated 18 April 2007. Mr Gibson is a plastic and reconstruction surgeon who examined the appellant at the request of the respondents;

(iii) report of Mr Gerard Glancey, dated 19 June 2007. Mr Glancey is a psychologist to whom the appellant was referred for assessment and treatment by her solicitors. His report was provided at the request of her solicitors, and served upon the respondents. It was not, however, relied on in her case, but in the case made on behalf of the respondents;

(iv) handwritten report made by Mr Glancey to Dr Hamad, dated 12 September 2006;

(v) handwritten treatment or consultation notes made by Mr Glancey, recording consultations with the appellant on 6 March 2007, 15 November 2006, 27 September 2006, and 12 September 2006. These notes were produced in answer to a subpoena served on Mr Glancey on behalf of the respondents;

(vi) handwritten treatment notes made by Dr Hamad, dating back to 1996;

52 For the purposes of the appeal, the salient medical evidence was that of:

● Dr Robertson; ● Dr Samuell; ● Mr Glancey; ● Dr Hamad.

53 Since the dispute in the District Court centred around the extent of the appellant’s pre-existing (if there were any) psychological or psychiatric condition, I will, in outlining the contents of the reports and notes, concentrate primarily upon the histories taken. Some diagnostic assessments are also relevant.

54 The following is a summary of the relevant parts of the medical and psychological evidence:

(i) Liverpool Hospital notes

55 The Hospital notes show that the appellant was admitted at 5.45pm on 12 November 2005. A nursing assessment recorded that she had suffered a bite on the ankle, through to the bone, by a Rottweiler. She underwent surgery under general anaesthetic. An “Operating Theatre Count Sheet” records that the surgery commenced at 10.00pm and concluded at 10.27pm, taking just 27 minutes. The appellant discharged herself against medical advice the following morning.

56 The documentation for the 2000 admission contains a November 1999 record of “Recent Drug History”, which includes a note that the appellant consumed one alcoholic drink per month (that practice had ceased) and four cones of marijuana (that had also ceased on pregnancy). (Blue, 179)

(ii) Dr Hamad

57 Dr Hamad’s report records that the appellant attended on 14 November 2005. She was tearful, anxious, distressed, not able to walk and required crutches for mobility.

58 Thereafter, she attended twice weekly for wound reviews.

59 She was unable to look after her children well and maintain her home duties. She was becoming very depressed, tearful, withdrawn, and felt helpless.

60 Dr Hamad prescribed anti-depressants (on a date unspecified in the report) and counselled the appellant.

61 On subsequent reviews (again, dates unspecified) the appellant’s condition worsened, and the anti-depressant dose was increased. Eventually, the report notes, Dr Hamad referred the appellant to the Liverpool Mental Health Clinic. She was then suffering from flashbacks, nightmares, anxiety and depression. She was not improving despite being prescribed large doses of anti-depressants.

62 Dr Hamad referred the appellant to a psychologist for counselling. He last saw her on 14 February 2007, when she was back at work, feeling much better, but still using anti-depressants, by now with good results. Of some interest is the concluding paragraph of Dr Hamad’s report, in which he observed:

anxiety and depression flare up

63 Dr Hamad’s handwritten notes were produced on subpoena and tendered in evidence in the respondents’ case. They date back to 1996. There is, of course, much that has no relevance to the present appeal. However, some entries, otherwise irrelevant, become relevant by reason of the approach taken by the trial judge.

64 The notes record, on 21 July 2000, that the appellant suffered from post-natal depression and was counselled. 2000 was the year in which the appellant’s third child was born.

65 The notes next (relevantly) record, on 23 March 2001, that the appellant was suffering from PMS (agreed to mean “post menstrual syndrome”) and was depressed and “not dealing with it”. Dr Hamad prescribed Zoloft.

66 The notes record, on 5 February 2005, recurrent anxiety/panic attacks, insomnia and nightmares, and that the appellant was counselled and advised with respect to relaxation. Temazepam was prescribed.

67 The next note of relevance is that of 14 November 2005, following the dog attack.

68 On 9 December 2005 Dr Hamad recorded that the wound was healing well, that the appellant was very tearful, that she felt down, depressed, could not look after her family and was “seeing face of dog”. She was having nightmares. She was counselled.

69 Entries of this kind continue on 16 and 20 December 2005, 2 February 2006, 27 February 2006, 2 June 2006, 13 September 2006 and 5 October 2006. On 13 September Dr Hamad referred the appellant to a Dr Yeoh (sic) (who, other evidence suggested, was a psychiatrist), but a later note records that she had not followed up this referral.

70 The last note, 14 February 2007, records that the appellant was back at work, that she felt well, and that she was on Efexor.

(iii) Dr Conrad

71 Dr Conrad provided an opinion for medico-legal purposes. He described the scar on the appellant’s leg and considered that it may be improved by reconstructive plastic surgery at a cost of about $6000. He noted that the appellant had been left with contracture of the lower left calf muscle and upper Achilles tendon, which reduced her extension capacity of the left ankle and which may require physiotherapy.

72 Dr Conrad said that if the appellant were looking for work, she might be able to do light cleaning work, about 15 hours per week, in a position where she is able to stand or sit at will and not do a lot of standing or walking, or going up and down stairs. This should be part of a structured rehabilitation program. He said that her prognosis was uncertain.

(iv) Dr Giles

73 Dr Giles also assessed the appellant for medico-legal purposes. He assessed her fitness for work; he considered that her scar should not limit her choice of occupation and should definitely not restrict her if she wished to go into childcare. Having regard to her complaint that some shoes caused discomfort on the heel, he thought she may need to “be particularly careful” when choosing work shoes, and that it may be preferable for her to work in a situation where she is able to sit.

(v) Dr Robertson

74 Dr Robertson examined the appellant on 28 November 2006. He recorded that the appellant had, before November 2005, experienced dreams of a dog attack. He recorded “no past history of psychiatric disorder”, but a “positive family history”, including suicide, at the age of 40, by the appellant’s maternal grandmother, and “what appears to have been” a leucotomy performed on her paternal grandmother.

75 As to family history and circumstances, Dr Robertson recorded that the appellant was the third of four children of a marriage that ended when she was 4, soon after the family emigrated from England. Nothing untoward about the family circumstances appears from Dr Robertson’s report. Dr Robertson simply noted that, after the separation, the children remained with their father, but maintained a close relationship with their mother.

76 He noted that the appellant described herself as an adventurous child, who did well at school, but nevertheless left in year 9 and went to TAFE to obtain her School Certificate. After her daughter (born in 1992) started school, she returned to TAFE and obtained a tertiary preparation certificate.

77 He recorded that the appellant “did not drink alcohol” prior to the attack, but did so thereafter.

78 Dr Robertson considered that, although she appeared tense, the appellant did not appear “significantly depressed”; however, he did record that she reported “flashbacks”, continuing to the time of his assessment, a “phobic anxiety” in relation to big dogs, and the acquisition, nonetheless, since the attack, of a Great Dane (which he characterised as “counter-phobic behaviour”); increased startle response, and that the appellant had been socially withdrawn since the attack. He recorded that the appellant had been seeing a psychologist on a fortnightly basis for three months.

79 He described her as “animated, cooperative”, and as speaking freely and in a dramatic manner.

80 He made a positive diagnosis of post-traumatic stress disorder with “quite typical” symptoms, together with depression, which, he said, is a common and well recognised complication or co-morbidity of post-traumatic stress disorder. He thought the prognosis for recovery was “very poor”, but that the appellant would make slow improvement, short of full recovery.

(vi) Dr Samuell (18 April 2007)

81 Dr Samuell assessed the appellant on 5 April 2007. He noted that she smelled strongly of alcohol, and that she confirmed that she had consumed alcohol that morning.

82 He recorded that the appellant told him that she saw her general practitioner, Dr Hamad, every two weeks for prescriptions, and that she saw a psychologist (whose name she could not remember) every two to three weeks. He recorded that the appellant said that, when the dog attacked her, she thought she was going to die because she was losing a lot of blood from her leg, and that she feared she was going to black out. She told him that she tried to throw her son over an adjacent barbed wire fence.

83 Dr Samuell also took a history from the appellant of “no previous psychiatric difficulty”, although he contrasted this with the note from Dr Hamad’s record, of 5 February 2005, that she had “recurrent anxiety/panic attacks, insomnia and nightmares”. Dr Samuell also took a history of nightmares of a dog attack for eighteen months prior to the actual event. He recorded that the appellant claimed to have had “a normal upbringing”. He recorded that the appellant claimed that the attack had “changed her world”, and that she had, prior to the attack, had “a perfect life”, that included activities such as horse riding, ballroom dancing, and abseiling. Under the heading “Psychiatric History” Dr Samuell recorded “there is no family psychiatric history”, but he followed this with a note contrasting that with what appeared in Dr Robertson’s report, to which Dr Samuell had access. (This, presumably, was a reference to what Dr Robertson called “a positive family history” of suicide and leucotomy.)

84 Dr Samuell recorded that the appellant said that prior to the attack she had abseiled every day of her life. He recorded that she said that she could not do these activities any more because she could not get on her boots; that she said that she could not move her feet at all, and that she said:

“I can’t actually walk.”,

85 In answer to a direct question, the appellant told Dr Samuell that as a result of the psychological impact of the attack, she could not “deal with anything”, and that “everything is like a major trauma to do”. She said that her life was now “bedlam”.

86 Under the heading “Physiological Symptoms”, Dr Samuell recorded that the appellant “acknowledged” that she had had nightmares for 18 months prior to the dog attack, and that the content of the nightmares was about an impending attack.

87 Under the heading “Personal History”, Dr Samuell wrote that the appellant said that she had had “a normal upbringing”, that she was academically advanced, and had a “bubbly” personality.

88 Under the heading “Opinion”, Dr Samuell recorded that the appellant told him that she had no prior psychological difficulties, although he considered this to be inconsistent with what Dr Hamad recorded in his notes that indicated “psychological suffering”. He appears to have included in this description the appellant’s dreams of a dog attack prior to its occurrence, but did not accept that those dreams had any “premonitionary component”. He recorded that the appellant left him with “the impression” that she had a “vulnerable personality”; he said, however, that he had no way of comparing the appellant’s functioning pre and post injury; and that most of her symptoms appeared to be “on a continuum” with what she had experienced before the attack. While he accepted that it was likely that the dog attack was “quite distressing”, he could not confirm that it “caused her illness as such”. He referred to a “family history of psychological illness”, and thought that, together with her “vulnerable personality”, it was likely that most of her presentation could be accounted for by “regressed behaviour”.

(vii) Mr Glancey

89 Mr Glancey recorded consultations with the appellant on 12 September 2006, 27 September 2006, 15 November 2006 and 6 March 2007. He said that she had been referred by her solicitors “for assistance with psychological disturbance following a traumatic ordeal”. Following the first visit he noted that she appeared “tense and agitated” and engaged in spontaneous and continuous reporting, at a “frenetic rate”. He saw clear evidence of pressure of thought and emotional disturbance with the reporting of “the ordeal”. He said that she reported “reliving the dog attack” with “vivid visual recollections” every day; that she reported poor concentration due to intrusive thoughts, and physical symptoms of anxiety associated with flashback memories; that she reported mood swings, irritability and unreasonable temper, emotional disturbance associated with mental activity and that she felt “overwhelmed”; and that she spoke of physical tension, confusion and anxiety every day.

90 Mr Glancey diagnosed bipolar disorder, potentially reactive to the trauma of the dog attack, anxiety disorder, with some characteristics of post-traumatic stress disorder. (The diagnosis of bipolar disorder was rejected by Dr Robertson, and was not pressed by either party. It was agreed that it should play no part in the proceedings, and, in part at least, evidence of the diagnosis was disallowed.) Mr Glancey reported to Dr Hamad and suggested a referral to a psychiatrist.

91 In relation to the appellant’s pre-injury personality and condition, Mr Glancey recorded the following. In the first consultation, 12 September 2006, he noted that the appellant said that she had suffered post natal depression following the birth of her first child [that was in 1988], with which she coped without medication, and which did not recur following the birth of the subsequent children.

92 In the second consultation, 27 September, Mr Glancey attempted to obtain a psychosocial history. He noted that she had been referred to Dr Yeo, a psychiatrist, but had not attended. As to her pre-morbid functioning, he said:

“I formed the view that she likely had demonstrated personality characteristics similar to her then current functioning but less extreme”.

93 He recorded that the appellant was the third of four children of a family that emigrated to Australia when she was 4 and that the appellant referred to herself as an energetic, hyperactive child, and a high achiever. She told Mr Glancey of an unstable childhood and said that her mother was not a loving woman, but that she was closer to, and was favoured by, her father.

94 He recorded the separation of her parents when she was 5 years of age and that she was subsequently raised by her father (by her choice) for a period of three years, while her siblings remained with their mother. She told Mr Glancey that she returned to the care of her mother at the age of 7½, at her father’s suggestion, and remained there until the age of 11, when she returned to the care of her father, where she stayed until the age of 14. She then returned to her mother for a period of six months, and thereafter lived independently, from the age of 14½.

95 She spoke of having lived on the streets, of working as a secretary, of renting a home, and of friends taking over her home. These friends were using drugs, which she did not accept. She said that her boyfriend was on drugs. She left and returned to live with her father. She discovered she was pregnant. Mr Glancey recorded:

“She was disowned by both parents.”

96 She told Mr Glancey that she was, at the age of 4, sexually molested on numerous occasions by a young adolescent. Mr Glancey said that, following the attack, the appellant recognised that she was not coping with the demands of her life.

97 In the third visit, 15 November, the appellant demonstrated “a dramatic range of affect”, engaged in circumstantial reporting, demonstrated pressure of thought; her reporting was (once again) disorganised and frenetic.

98 She spoke of using alcohol to control anxiety following the motor vehicle accident that post-dated the dog attack. She spoke of a panic attack and having been prescribed Efexor. Mr Glancey referred her to the Macarthur/Campbelltown Mental Health Team.

99 Mr Glancey said:

”She claimed to have previously been a non-drinker.”

100 She reported “generalised anxiety”, broken sleep, stressful disturbing dreams, and being “constantly on edge”. She spoke of hiding away from the world at home, of high levels of mental activity associated with the dog attack, and of the impact of anxiety on her life and the life of her family.

101 Included in Mr Glancey’s report was the following:

“She spoke of the dog attack. She asserted that her son was in the top 5% of students prior to the attack. Following the attack he slumped to the 45% level. She asserted this occurred ‘the very next day’.”

102 Of the final consultation, 6 March 2007, Mr Glancey reported symptoms of “hypomanic functioning”.

103 Mr Glancey recorded that the appellant was of the view that her family looked down on her because she was not married; and that she spoke of her father demanding that she move out of his home when she was 16 years of age; that she lived on the streets; and that she had maintained a stable existence for her family since the birth of her children.

104 Mr Glancey thought that her prognosis without appropriate medication was poor. He maintained his opinion that she suffered from bipolar disorder and had symptoms of hypomanic disturbance.

105 Mr Glancey’s report was referred to Dr Robertson for comment. On 27 October 2007 Dr Robertson reported again, disagreeing with Mr Glancey’s diagnosis of hypomania/bipolar affective disorder, and reiterated that the appellant suffered from anxiety, an integral part of post traumatic stress disorder, acting on her underlying personality, which is of histrionic type.

(viii) NSW Health (Campbelltown District Mental Health Team)

106 On referral by Mr Glancey, the appellant was initially seen by Ms Anna Wood, a psychologist, on 15 November 2006. Ms Wood also noted that the appellant was highly emotional, confused, suffering from generalised anxieties, depression and possibly post-traumatic stress disorders.

107 The appellant appears to have been seen again, by a registered nurse, on 22 November. The nurse took a “History of Presenting Illness”. This contained a description of the attack by the Rottweiler. She records the appellant as having said that she had to save her son by throwing him aside several times (because he kept running back to her). Each time she did this her son sustained injury. The appellant was “near death”, with “shock and blood loss”, and underwent six hours of microsurgery.

108 The nurse observed that the appellant’s speech pressure was tangential, there was some thought disorder, that her family and friends were becoming frightened.

109 On 24 November the appellant saw Dr M Freeman, a psychiatrist, who hand wrote a short report to Dr Hamad. Dr Freeman thought that the appellant tended to deny the severity of the Post-Traumatic Stress Disorder. He said that, from his viewpoint, the appellant had a “reasonably stable pre-morbid personality, and a caring (?) attitude to her children, siblings and society [which] will help her readjust from her emotional trauma”. (Blue, 253)

(ix) Dr Samuell (30 November 2007)

110 On 30 November 2007 Dr Samuell provided a supplementary report, having reviewed various documents and reports that had been sent to him. He did not again see the appellant.

111 Like Dr Robertson, he rejected Mr Glancey’s diagnosis of bipolar disorder.

112 Dr Samuell appears to have taken the approach of unearthing apparent inconsistencies in histories given by the appellant. For example, he noted that Mr Glancey had elicited a history of post-natal depression that was not revealed to him (Dr Samuell) at interview. He referred to Mr Glancey’s opinion that the appellant:

“demonstrated personality characteristics similar to her then current functioning, but less extreme”,

113 He said that the appellant had told him that she had a normal upbringing, but gave an entirely different history to Mr Glancey. He said:

“She appeared to be shuttled between her parents until she lived independently from the very young age of 14½.”

114 He referred to the history taken by Mr Glancey that the appellant had at one stage lived on the streets, of the unwanted pregnancy, and of being “disowned” by both parents.

115 All of this is drawn directly from passages in the reports to which I have already referred.

116 Dr Samuell then said:

“Of significance, there was an omission from her history to me, that [the appellant] was sexually molested at the age of four. (Comment: reliable memories from the age of four are actually quite uncommon concerning these matters.)”

117 He said that the appellant had not told Mr Glancey about her anxiety that existed prior to the dog attack and instanced the fact that she did not mention her “premonitions” (although he had, in his previous report, rejected the notion that the appellant’s dreams had any “premonitionary component”), panic attacks and nightmares that preceded the “dog event”.

118 He referred to the motor vehicle accident prior to 15 November 2006 which, he said, was not revealed to him at interview. He then referred to the appellant’s use of alcohol to control her anxiety following the motor vehicle accident, and said that the appellant had told Mr Glancey that she had previously been a non-drinker. Dr Samuell then referred to the obstetric records from the Liverpool Hospital 1999 admission, which, he said, evidenced that she had previously been a drinker and in fact had also consumed cannabis on a regular basis. He said that the appellant contradicted her history of alcohol consumption to Mr Glancey, speaking of her ‘continuing use of alcohol when she was forced to leave home’.

119 He drew, from Mr Glancey’s notes, that there had been “substantial developmental difficulty” and observed that this had not been conveyed to him at interview. He therefore said that the appellant appeared to be “an unreliable historian”. He did not explain the reference to “substantial developmental difficulty”. (I have carefully read Mr Glancey’s handwritten notes and I can detect no hint of any, let alone substantial, “developmental difficulty”.)

120 Dr Samuell made some criticism of Mr Glancey for failing to consider that the appellant might have had “a cluster B type personality disorder”, or to entertain the possibility that the appellant’s alcohol consumption was “perhaps more significant than she revealed”. He made a similar criticism of Dr Hamad, for failing (in his report) to provide information about the appellant’s pre-morbid functioning. (It appears that Dr Samuell was not at this time provided with Dr Hamad’s notes.)

121 Dr Samuell made a number of observations which are important for the purpose of the appeal. He noted Dr Hamad’s last conclusion, that the appellant was back at work, feeling much better, back to her usual life, caring and providing for her children and using the anti-depressants with good results, and said:

“Dr Hamad’s conclusion in this respect was very similar to my own. I did not consider her to be unwell at the time that I assessed her.”

122 He then said:

“Many psychiatrists have opined that early life abuse such as that sustained by [the appellant], can be the cause of a chronic post-traumatic stress disorder. This further complicates [the appellant’s] claim, as it seems likely to me that her adverse early life events would have had a major and perhaps chronic effect on her personality development.

Once again, I took the view that there appeared to be considerable continuity between [the appellant’s] functioning before and after the dog attack. She appears to be an unreliable historian, and therefore collaborative (sic - ? corroborative) information concerning her functioning both before and after the attack would be most valuable in reaching definitive conclusions.

The judgment

123 The Judge identified as “the major issue”:

“… the nature of any psychiatric disability … particularly having regard to [the appellant’s] pre-accident (sic) history, and her reliability and credibility as a historian.”

124 His Honour came to the conclusion that the opinion of Dr Samuell was to be preferred “concerning the nature of [the appellant’s] psychiatric condition and its relation to the dog attack”. He made a number of specific findings, of which the following might here be noted:

“(1) [The appellant] is an unreliable historian, given to exaggeration of her complaints, minimising her pre-morbid functioning to the psychiatrist, overstating the circumstances of the attack and the treatment that followed.” (Red, 38)

125 He was not satisfied that it had been established that there was any ongoing psychiatric sequelae causally connected to the dog attack.

126 Prior to stating this conclusion and these findings, his Honour analysed the evidence. He detailed a number of instances that established that the appellant was, at best, “an unreliable historian”, and, at worst, deliberately untruthful (although he did not put it so baldly). These circumstances included:

● in her evidence, the appellant described the loss of sensation both above and below the scar in the ankle region. His Honour then referred to medical evidence which he considered did not support that claim. He appears to have rejected the appellant’s complaint.

● “[The appellant] complained about her inability to wear shoes with enclosed heels as she had ‘no use of her Achilles heel’ as she had nerve damage and could not feel it.” His Honour also rejected this on the basis that the medical evidence did not support it.

“Q. [BY COUNSEL]: Why can’t you wear heels?
A. Because it might – it’s just above my – it’s in the Achilles heel.

Q. Yes?
A. I can’t walk.

Q. When you say you can’t walk … you walked into this court?
A. Yep.

Q. What’s the problem with your walking?
A. If I was to have heels on I couldn’t walk.

HIS HONOUR

Q. Why? Why is that?
A. Because I don’t have any use of my toes on my left foot and with my Achilles heel gone I’m -

Q. You’re saying you’re Achilles heel has gone?
A. Well, its – with the numbness of my Achilles heel not being able to feel it I actually can’t feel my foot walking.

● the appellant told Dr Samuell that she could not walk. Dr Samuell observed (in his report) that she had walked into his consultation room without obvious difficulty;

● the appellant told Dr Samuell that she drinks “hardly ever” and did not take illicit substances;

● the appellant said that she had “a perfect life” before the injury;

● the appellant did not tell Dr Samuell that she had been sexually molested at the age four;

● the appellant did not tell Mr Glancey about her anxiety prior to the dog attack nor about her “premonition” of an attack by a dog, panic attacks or nightmares;

● the appellant told Mr Glancey that her son, prior to the dog attack, was in the top 5 percent of students but dropped to the 45 ^th percentile “the very next day”;

● the appellant’s description of the attack was exaggerated. She claimed in evidence that it lasted 20 to 25 minutes and that she was bitten all over her body including her legs and arms;

● the appellant told Mr Glancey that she “passed away” a few times during surgery; she told the Campbelltown Mental Health Team that she was “near death with shock and blood loss” and that she had six hours of microsurgery;

● the appellant gave evidence that she was required to drag herself to and from the toilet and bathroom for six weeks after the dog attack and claimed that she still had to do so;

● the appellant asserted that she was unable to work five days a week as “her whole body would shut down in pain”;

127 As I have indicated, there were two strands to the approach taken by the trial judge in assessing the appellant’s credibility. One strand consisted of an analysis of the evidence given by her, contrasted with information given by her to the health professionals and recorded in the reports and notes. The other strand consisted, essentially, of an adoption of the exercise undertaken by Dr Samuell in his second report. That was an exercise of a similar kind: identification of apparent or asserted inconsistencies in information given by the appellant to the health professionals, or, in some cases, omissions from the information given to them. His Honour placed heavy reliance on that report – indeed, he appears to have accepted it in its entirety, without critical analysis of the factual assertions or the reasoning process that underlay it.

128 It is of some interest that, in conducting his own analysis, the trial judge never, at any time, made any finding about the appellant’s credibility or reliability based upon his observation of her demeanour in the witness box. The entire exercise was based upon analysis of what she is recorded in the medical and psychological reports as having said, and of what she said in the witness box.

The appeal

129 Seventeen grounds of appeal were pleaded. In written submissions, these were broken into seven groups, of which the first three relate to the approach to and assessment of the appellant’s psychiatric or psychological condition, and the assessment of her credibility.

130 The exercise required was not complex. It required, first, identification of any psychiatric or psychological condition from which the appellant suffered, after the dog attack; second, examination of any causal relationship between the dog attack and that condition. One way of approaching the second question – probably, given the nature of the evidence, the only available approach – was to compare what was known of the appellant’s functioning before the attack, with what was known of her functioning after the attack.

131 I have come to the conclusion that his Honour’s reliance upon the reports of Dr Samuell, particularly the second report, was misplaced. That conclusion emerges from an analysis of the reports themselves, together with other evidence.

132 In his first report, Dr Samuell did not identify any documentary material provided to him for the purpose of preparing the report. He “suggested” (his own choice of word) that the appellant had “psychological suffering” prior to the dog attack. He cited Dr Hamad as having “articulated psychological suffering” some months before the attack. I infer from this that Dr Samuell then had access to Dr Hamad’s notes, and that this was a reference to the note of 5 February 2005, of recurrent anxiety/panic attacks, insomnia and nightmares. Dr Samuell, did not, however, specify the nature of the “psychological suffering”. (It is noteworthy that nowhere in this report did Dr Samuell give or make any diagnosis. It is also noteworthy that he did not comment on Dr Robertson’s diagnosis of post-traumatic stress disorder, although he clearly had Dr Robertson’s report available to him.) Dr Samuell said that the appellant left him with “the impression” that she had “a vulnerable personality”, but, again, did not go into specifics. In the final paragraph of this report, he referred to “her illness”, but did not identify what the illness was. This reference appears in the context of his considering whether the dog attack was the cause of the appellant’s “illness”, and attains greater significance in the light of the second report.

133 In the second last paragraph of the first report Dr Samuell said that he had no way of comparing the appellant’s level of functioning pre and post injury. Yet, in the following paragraph, he said most of her symptoms “appear to be on a continuum with what she experienced before” the attack. He then referred to a family history of psychological illness, and her “personality vulnerability”, and concluded that “regressed behaviour” was the cause of her “current presentation”.

134 I observe, because of what appeared in the second report, that nowhere in the first report is there any mention, much less diagnosis, of personality disorder.

135 Dr Samuell’s second report does identify “new documents” provided to him. Relevantly, these included the report and notes of Mr Glancey, the report (there is no mention of the notes) of Dr Hamad, and the clinical notes of the Liverpool Hospital and Campbelltown Mental Health Team.

136 He did not undertake any further personality assessment of the appellant. Rather, he undertook the exercise of detecting and detailing apparent inconsistencies in the appellant’s presentation, and omissions in the information she provided. Some illustrations follow (all references are to Blue Appeal Book numbers) with, where appropriate, my comments:

Comment: ● what was revealed to Dr Samuell at interview depended largely upon his questioning of the appellant;

● Mr Glancey’s history of post-natal depression related to the birth of the appellant’s first child (in 1988); merely to ask, in 2007, about “psychiatric difficulties” would not necessarily elicit information about post-natal depression in 1988;

● the appellant said in evidence that, although it had been suggested to her (in 2000, after the birth of her third child) that she suffered from post-natal depression, she did not accept that diagnosis;

● Dr Samuell appears to have had access to Dr Hamad’s notes, which clearly record post-natal depression in 2000;

Comment: By the use of the pejorative word “shuttle”, Dr Samuell has placed a negative connotation on the appellant’s history, which is not necessarily supported by reading Mr Glancey’s record of what she told him (90M):

“… loved Dad. She was favoured by Dad. Pts separated during 12 Mts in Aust. She raised by fa for 3 years. Older kids stayed with Mo. She had contact with Mo. She says she chose to live with dad. Fa was adventurous entertaining stimulating.

Ret to Mo 7½ years. Fa suggested stayed with Mo til 11 years. Then back to dad til 14 yrs. Six Mts with Mo. Lived independently from 14 6/12 …”

I do observe, however, that, earlier in the notes, Mr Glancey said “she speaks of unstable childhood”. Whether that was his own interpretation of what the appellant told him, or her own language, is impossible to say.

(iii) (256U) “Of significance, there was an omission from her history to me, that [the appellant] was sexually molested at the age of four: (Comment: reliable memories from the age of four are actually quite uncommon concerning these matters.”) [This was Dr Samuell’s comment.]

Comment: ● in his first report, with respect to the appellant’s dreams of a dog attack before it occurred, Dr Samuell said:

“I do not accept that the phenomena revealed to me had any kind of premonitionary component …”

(v) (257H) “She told Mr Glancey about a motor vehicle accident that she sustained prior to 15 November 2006. This was not revealed to me at interview.”

Comment: see the first comment under (i) above.

(vi) (257I) “She said that she used alcohol to control her anxiety following that motor vehicle accident. She told Mr Glancey that she had previously been a non-drinker, although cross-referencing her obstetric records[,] it was evident that she had previously been a drinker and in fact had also consumed cannabis on a regular basis. She also contradicted her history of alcohol consumption to Mr Glancey, speaking of her ‘continuing use of alcohol when she was forced to leave home’.”

Comment: The issue of alcohol consumption loomed large. I make the following observations:

● the obstetric records to which Dr Samuell referred show that, as long ago as 1999, the appellant consumed an alcoholic drink per month, and that that ceased on her pregnancy;

● the appellant’s evidence, in cross-examination, was that she would have drunk socially once a year prior to the dog attack and that she still did do so, although she suggested that there were times when she “did have to have a beverage” (Black, 45); later, she said that prior to her pregnancy she visited her father monthly and they would have a glass of wine with dinner;

● a description of a person as “a non-drinker” is capable of different interpretations. It does not necessarily mean that the person is a complete teetotaller. I do not think it was open to question the appellant’s credibility on this basis;

● contrary to Dr Samuell’s assertion (at 258I) of “a history of significant alcohol consumption”, there was (on the evidence) no such history, at least prior to the dog attack;

● Dr Samuell may well have misinterpreted a passage in Mr Glancey’s report. Mr Glancey wrote:

“She spoke of hiding away from the world at home. She spoke of continued use of alcohol when she was forced to leave her home.” (italics added)

Dr Samuell appears to have read the reference to the use of alcohol when she was forced to leave her home as a reference to alcohol consumption at the time when, as a teenager, she was forced to leave home.

In context, in my opinion, this is most likely a reference, not to when the appellant was forced to leave home as a teenager, but to when, after the dog attack, she was forced to go out. The evidence in that respect is clear, that she did use alcohol for fortification;

● Mr Glancey also noted the use of alcohol for anxiety after the motor vehicle accident and before anti-depressants began to take effect;

● there is no inconsistency in the appellant’s account of her alcohol consumption; essentially she said that she had rarely consumed alcohol before her injury; thereafter, she did so more frequently.

(vii) (257M) “Mr Glancey recorded a number of the statements made by [the appellant] without any meaningful commentary. He quotes [the appellant], for instance, as describing her son’s reduction in academic performance from being in the top 5 percent of students to being in the 45 ^th percentile ‘the very next day’. The manner in which Mr Glancey has recorded this account would suggest that it was remarkable insofar as it did not appear to be plausible. Unfortunately though, this is speculation that would require Mr Glancey’s confirmation.”

(viii) (257V) “Later in Mr Glancey’s notes, [the appellant] spoke of moving out of home when she was aged 16, although she had stated earlier that she left home when she was 14½. I draw your attention to this only insofar as it may reflect upon the credibility of [the appellant’s] history.”

Comment: This may be contrasted with the earlier report, in which Dr Samuell “suggested” that the appellant had “psychological suffering” prior to the dog attack, that her “symptoms” appeared to be on a continuum with what she experienced before, and he expressed the opinion that her then “current presentation” may be accounted for by “regressed behaviour”; and his reference to “her illness”;

Comment: That was the first indication by Dr Samuell that the appellant did suffer from a personality disorder.

Comment: ● It is not clear what point Dr Samuell sought to make from this assertion. Since he apparently had Dr Hamad’s notes (at least at the time of his first report), it may be assumed that the comment was not a plea about having inadequate information; it appears to be some kind of veiled criticism directed at Dr Hamad.

● Dr Hamad’s notes put the February 2005 episode of anxiety and panic attacks, and the 2000 post-natal depression, in perspective. The appellant had been his patient since at least 1996. If Dr Samuell had wanted evidence of the appellant’s pre-morbid functioning, it was available to him by examination of the notes. That would have shown a predominantly negative (in terms of psychological malfunctioning) history, with two apparently aberrant episodes, five years apart;

Comment: ● it is not clear whether Dr Samuell accepted that the appellant was suffering from post-traumatic stress disorder. If so, that appears to be inconsistent with his rejection of the suggestion that she was “unwell” at the time he assessed her, and also with his belated diagnosis of personality disorder;

● it is one thing to state, as a generality, that “early life abuse” (if that is how the appellant’s childhood and adolescence circumstances ought to be characterised) “can be (italics added) the cause of a chronic post-traumatic stress disorder”; it is another altogether to conclude that, in a particular case, that sequence has occurred. Dr Samuell expressed no such opinion in relation to the appellant.

Comment: This may again be contrasted with Dr Samuell’s acknowledgement, in the first report (63I), that he had no way of comparing the appellant’s level of functioning before and after the injury.

137 It is also of some interest that, in this report as in the first, Dr Samuell did not comment on Dr Robertson’s diagnosis of post-traumatic stress disorder, although he clearly had access to that when preparing his first report, because he referred to the report in which the diagnosis was contained. The passage I have quoted in (xii) above is capable of being read as an acceptance of that diagnosis, but not of Dr Robertson’s opinion as to its cause.

138 In my opinion the reasoning of Dr Samuell is unsatisfactory and cannot withstand scrutiny. It did not provide a proper basis for the trial judge to make the findings adverse to the appellant that he did.

139 Moreover, errors of the same kind were perpetuated by the judge in reaching his own conclusions concerning the appellant's credibility. In dealing expressly with the appellant's credibility, his Honour referred, in some detail, to submissions made on behalf of the respondents. Unfortunately, while spelling each of these out in detail, he did not state whether he accepted the submission or not. From the tenor of the judgment, I would infer that each of the matters to which he referred in this section of the judgment reflected a submission that he accepted.

140 I will follow the same course in relation to those matters as I did in relation to Dr Samuell’s report. The extracts are from that part of the judgment in which his Honour dealt with the respondents’ submissions as to the appellant’s credibility, and references are, unless otherwise stated, to page numbers in the Red Appeal Book.

Comment: ● It is not clear what, of this, his Honour considered reflected adversely on the appellant’s credibility. The adoption of Dr Samuell’s pejorative word “shuttled” suggests that his Honour was concluding that the appellant’s claim to have had a “perfect life” prior to the attack was untrue. If that is correct, then, in my opinion, it reflects a fundamental misunderstanding of what the appellant said. In his first report, Dr Samuell recorded her comment as follows:

“She said that she considers that the life she had prior to the dog attack was ‘a perfect life’.”

This is plainly a reference to the life she was living in the months and possibly years prior to the dog attack. The history of being “shuttled backwards and forwards” which was taken to cast doubt upon her credibility in that respect came to an end (on Mr Glancey’s history) when the appellant was 14½ years old – in early 1984. The “perfect life” to which the appellant laid claim was her life from an unspecified commencement date up to 12 November 2005 – 20 years later. It is not possible to read Dr Samuell’s account of what she said to him about her pre-attack life as meaning that her entire life had been perfect.

If, as appears to be the case, his Honour accepted that telling Dr Samuell that she had “a perfect life” was indicative of lack of credibility, that conclusion was not warranted;

● His Honour appears also to have accepted Dr Samuell’s presumption that the alternating living arrangements of the appellant as a child were adverse; it is not clear, from Mr Glancey’s record, that this was the appellant’s perception;

Comment: Once again, it is not clear what it is in this recital of evidence his Honour held to be not credible, or that he did not believe. In her evidence, the appellant said:

“I could have expressed that but it was – I was never disowned by parents, they were just angry at me for a few hours …” (Black, 62F)

(1) she suffered from post-natal depression following the birth of her first child.

(2) she suffered from post-natal depression for which she consulted Dr Hamad on 21 July 2000.

(3) on 23 July 2001 she consulted Dr Hammad (sic) suffering from PMS, noted to be depressed and suggested a trial of Zoloft, an antidepressant.

Comment: ● The only evidence of post-natal depression following the birth of the first child (in 1988) was the single note recorded by Mr Glancey; the appellant denied giving him that information (Black, 58E);

● although Dr Hamad diagnosed post-natal depression in 2000, the appellant never believed that she suffered from that disorder;

● although Dr Hamad’s notes do record the conditions referred to in (3) and (4), the appellant never consulted a psychiatrist in respect thereto; it would hardly be surprising if the appellant did not regard these events as evidencing “past psychiatric history”;

● although the notes show that the appellant continued to consult Dr Hamad from time to time, they do not reveal any ongoing or continuing depression or other psychological symptoms.

Comment: Again, if it be assumed, as I think it must be, that his Honour accepted this submission made on behalf of the respondents, it was not warranted. It was not put to the appellant in cross-examination that she deliberately withheld information from any of the medico-legal referees for the purpose of enhancing her claim, nor that she was sufficiently sophisticated to be aware of the value of doing so; no reason was given for finding that her evidence in re-examination was not credible;

(v) (33X) alcohol: It was submitted, and apparently accepted, that the appellant’s description (to Dr Samuell) of herself “a non-drinker” prior to the dog attack was “further evidence of exaggeration”. I do not intend to repeat the comments I have made above in relation to this. They are equally applicable to this part of the judgment;

Contrary to that evidence

Comment: The appellant gave evidence in March 2008. Six or seven years before that would have been 2001-2002. The second paragraph of the extract suggests that the evidence the appellant gave in response to the question of the judge was inconsistent with that to be found in the Liverpool Hospital notes. Calculation of the dates shows that this is not so.

The evidence of Mr Cazzy

141 His Honour appears also to have rejected the evidence of Mr Cazzy. Again, he made no comment on Mr Cazzy’s demeanour, but, instead, appears to have accepted the criticisms made on behalf of the respondents. He recorded that the respondents “submitted that the relationship was not close in the sense that he did not cohabit at any stage with the plaintiff”.

Comment: The evidence was that Mr Cazzy and the appellant had been in a relationship for about 14½ years and had been engaged for about 3½ or 4 years. They had an eight year old son. Mr Cazzy saw the appellant almost every afternoon after work. If, as appears to be the case, his Honour accepted the submission that the relationship was not close because the two did not co-habit, that conclusion was not warranted.

142 There follows a puzzling observation. His Honour said:

“Further that his observations of change in [the appellant’s] mood, ought to be seen in the light of evidence concerning her reaction to the motor vehicle accident in September 2006. He said in cross-examination this was when he observed that [the appellant] was quite badly affected and began to regularly consume alcohol after the accident. Such was not disclosed to those who examined [the appellant] for the purpose of the case.”

143 It is not clear to me how Mr Cazzy’s observations of the appellant’s mood after the motor vehicle accident impacts either upon his credibility, or affects the acceptability of the evidence given by the appellant.

144 His Honour also held it to be “not without significance” that Mr Cazzy was unaware of the appellant’s February 2005 consultation with Dr Hamad for recurrent panic attacks, anxiety, nightmares and insomnia.

145 His Honour then concluded:

“Mr Cazzy’s evidence does not assist in explaining the inaccuracies in [the appellant’s] history for [sic - ? or] what I accept to be blatant exaggerations of her symptoms in the circumstances surrounding the attack.”

Comment: Mr Cazzy’s evidence was not called for the purpose of explaining inaccuracies in the appellant’s history or any asserted exaggerations of her symptoms. Mr Cazzy’s evidence was called for the purpose of presenting a portrait of the appellant’s functioning and condition prior to the dog attack. It was unfair to discount his evidence in that respect, particularly on the (erroneous) basis that it had not been shown that his relationship with the appellant was close, because they did not co-habit.

146 As Dr Samuell implicitly recognised, the key to the determination of the appellant’s claim lay in a proper assessment of her pre-injury and post-injury condition and functioning. In my opinion, the above analysis shows that her claim was not subjected to a fair assessment. In many instances the findings adverse to her, relating to her credibility, are not warranted on proper examination of the evidence. The only oral evidence, apart from her own, of that condition and functioning, was that of Mr Cazzy. His evidence was unfairly discounted.

147 Further, Dr Hamad’s notes were not given adequate attention. Attention was focussed upon the 5 February 2005 entry, without regard to the histories which appeared from the appellant’s attendances on Dr Hamad from 1996. An overview of these notes would not suggest a personality disorder, or psychological difficulties, of the kind suggested by Dr Samuell, and accepted by his Honour. As the appellant’s regular treating general practitioner over a period of eight years, Dr Hamad was in a better position than anybody else in the case to appreciate, evaluate and describe the appellant’s pre-injury condition and functioning. His notes were contemporaneous, objective (because they were made before any litigation was contemplated) and reasonably comprehensive. They provide the most reliable guide to the “before and after” picture that was essential to the assessment of the appellant’s claim. They were given inadequate attention both by Dr Samuell and the trial judge.

148 In my opinion the process of evaluation of the appellant’s claim was flawed, and the result cannot stand.

149 During the course of the appeal there was some discussion whether this Court could, if it accepted the appellant’s arguments, proceed to make its own assessment. The consensus was that it could not, and the matter must be referred for a new trial.

150 Other grounds of appeal raised complaints about the manner in which the trial judge dealt with claims by the appellant of ongoing physical disability, non-economic loss, future economic loss and out-of-pocket expenses. Since a new trial is necessary, it is unnecessary to deal with the those matters. It is sufficient to say that, on a re-trial, all issues as to the assessment of damages are alive.

151 I propose the following orders:

(i) Appeal allowed;

(ii) Judgment of the District Court of 3 April 2008 quashed;

(iii) The appellant’s claim be remitted to the District Court for a re-trial limited to the question of damages;

**********

Citations

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CITATION:	Mason v Demasi [2009] NSWCA 227
HEARING DATE(S):	26 May 2009
JUDGMENT DATE:	31 July 2009
JUDGMENT OF:	Basten JA at 1; Simpson J at 10
DECISION:	(i) Appeal allowed; (ii) Judgment of the District Court of 3 April 2008 quashed; (iii) The appellant’s claim be remitted to the District Court for a re-trial limited to the question of damages; (iv) The respondents to pay the appellant’s costs.
CATCHWORDS:	APPEAL – approach taken by trial judge resulted in inadequate award of damages – trial judge failed adequately to assess appellant’s psychological/psychiatric condition – reliance placed upon psychiatrist’s report in assessing psychological/psychiatric condition misplaced – no proper basis for findings adverse to appellant – correct approach outlined – comparison of appellant’s pre-injury and post-injury functioning – credibility findings adverse to plaintiff not warranted on proper examination of evidence – evidence by witness unfairly discounted – failure by psychiatrist to diagnose post-injury psychological condition – failure to identify pre-injury psychological condition – reasoning unsustainable – matter remitted to District Court for re-trial limited to question of damages - DAMAGES – assessment of damages by trial judge for personal Injury sustained as a result of a dog attack – psychological injury
LEGISLATION CITED:	Civil Liability Act 2002 District Court Act 1973 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
PARTIES:	Penelope Jayne Mason (Appellant) Antonio Demasi (First Respondent) Giovannina Demasi (Second Respondent)
FILE NUMBER(S):	CA 40195 of 2008
COUNSEL:	S Norton SC/M Fraser (Appellant) C Adamson SC/B Kelleher (Respondents)
SOLICITORS:	Brydens Law Office (Appellant) Moray & Agnew (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5495 of 2006
LOWER COURT JUDICIAL OFFICER:	O'Connor DCJ
LOWER COURT DATE OF DECISION:	3 April 2008