Nash v Berton No. Scciv-00-646 - [2001] SASC 94

NASH v BERTON
[2001] SASC 94
Full Court: Doyle CJ, Nyland and Gray JJ

DOYLE CJ I would allow the appeal, set aside the award of damages made by the District Court, and order that the matter be returned to the District Court for a re-hearing before a different Judge.
As Gray J points out, there was substantial evidence before the trial Judge, from Dr Petchell in particular, indicating that the plaintiff suffered from depression before the accident for which she claimed damages, and that the depression, coupled with aspects of her personality, meant that she could be a difficult patient to treat. The evidence of Dr Petchell is of particular significance because of his substantial experience in dealing with the plaintiff.
In light of that evidence, it would not be surprising if the plaintiff’s reaction to the motor vehicle included some disturbance of her mental state, and a reaction to a relatively minor injury going beyond what would normally be experienced. That was the tenor of Dr Petchell’s evidence, by way of explanation for the plaintiff making complaints which, on an organic basis, could not be related to the motor vehicle accident in question.
In finding the plaintiff to be an unreliable witness, and apparently finding that she was consciously falsifying her evidence, the trial Judge has not dealt with the significance of the plaintiff’s history of depression and with the aspects of her personality identified by Dr Petchell. Many of the criticisms made by the trial Judge of the plaintiff’s evidence are consistent with what one would expect having regard to Dr Petchell’s evidence about her depression and personality. The trial Judge’s reasons do not explain how the trial Judge dealt with this aspect of the evidence. Before the plaintiff was found to be a dishonest witness, in the sense of consciously manipulating her evidence, the Judge was obliged to consider this aspect of the evidence before him.
It does not follow that the trial Judge’s conclusions are necessarily wrong. However, the manner in which the Judge has decided the case is unsatisfactory, to the extent that findings have not been made indicating how, if it is the case, the Judge has rejected the view that the plaintiff’s abnormal reaction to her injuries is a result of a pre-existing depressive condition and of aspects of her personality.
In evidence before the Judge a number of witnesses made reference to the well known concept of a “psychological overlay”. Mr Ward, counsel for the respondent, criticised the imprecision of this concept, and was entitled to do so. He also made the point that there was no expert evidence from a psychiatrist or psychologist explaining in a satisfactory way how the plaintiff’s abnormal reaction could be explained as a psychiatric or psychological complication resulting from the injury.
There is some force in this point, but the fact remains that there was unchallenged evidence about the plaintiff’s history of depression, and about her personality, which were capable of leading to the conclusion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Nash v Berton No. Scciv-00-646 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] SASC 94
Decision Date: 24 April 2001

CaseChat Overview and Summary

In the case of Nash v Berton, the plaintiff, Nash, sought damages from the defendant, Berton, following a motor vehicle accident. The plaintiff alleged that the accident caused serious psychological and physical injuries, including chronic pain and disability. The case was heard and determined in the Supreme Court of South Australia. The primary legal issue before the court was whether the trial judge had adequately considered the evidence presented by the plaintiff regarding the extent of the psychological overlay of her injuries, and whether this had impacted the assessment of her credibility and the quantum of damages awarded.

The court found that the trial judge had failed to properly consider several key pieces of evidence. Notably, the trial judge did not address the testimony of Dr Petchell, the plaintiff's general practitioner, who had extensive experience and qualifications relevant to assessing the plaintiff's condition. Additionally, the court highlighted the omission of the evidence from Mr Awerbuch, a psychologist, and the referenced views of Professor Pilowsky on abnormal illness behaviour. The court held that these omissions were significant, as they could have affected the understanding of the plaintiff's psychological condition and her response to the injuries sustained in the accident.

The Supreme Court held that due to these errors, the appeal must be allowed, and the judgment of the District Court set aside. The court acknowledged that it was not in a position to reassess the damages due to the unresolved issue of the plaintiff's credibility. Consequently, the court ordered a rehearing of the case before a different District Court judge to ensure that all relevant evidence, particularly concerning the plaintiff's psychological condition, was properly considered.

The final orders of the court were that the appeal be allowed, the judgment of the District Court set aside, and the case be remitted for rehearing before a different judge. This decision underscores the importance of comprehensive and careful consideration of all evidence, especially in cases involving complex psychological and physical injuries, to ensure just and equitable outcomes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The trial judge failed to act on the evidence of Dr Petchell, Mr Hoare and Mr Oatey with respect to the existence and extent of the plaintiff's psychological overlay. He did not consider Mr Awerbuch's evidence about abnormal illness behaviour. He did not consider the published views of Pilowsky[2] referred to by Mr Awerbuch. The publication included the following:"Abnormal Illness Behaviour is an inappropriate or maladaptive mode of experiencing, perceiving, evaluation or responding to one's own state of health which persists despite the fact that a doctor (or other appropriate social agent) has offered an accurate and reasonably lucid explanation of the nature of the person's health status and the appropriate course of management (if any), with provision of adequate opportunity for discussion, clarification and negotiation based on a thorough examination of all parameters of functioning (psychological, social and biological), and taking into account the individual's age, sex, educational and sociocultural background.... the concept of abnormal illness behaviour has increasingly occupied a point of convergence for general medicine, psychiatry, psychology, psychoanalysis, philosophy, economics, sociology, jurisprudence and anthropology, all of which contribute to our understanding of illness and abnormal illness behaviour. ...We should also bear in mind that the label AIB concerns diagnosis and classification: it is discussed in categorical terms as if conditions are either absent or present. We know that this is an artificial approach, albeit useful. In practice, the various forms of illness behaviour lie on a continuum and consist of a constellation of features, each of which can vary between and within individuals." [2] Professor Issy Pilowsky, "Abnormal illness behaviour: A 25th anniversary review" Australian and New Zealand Journal of Psychiatry 1994; 28:566-673 at pp 567-568Dr Petchell's Evidence It was submitted that the trial judge failed to have proper regard to the evidence of the plaintiff's general practitioner, Dr Petchell. It was said that Dr Petchell's evidence was relevant to the issue of credibility. Dr Petchell was an important medical witness. He was a well qualified general practitioner with some twenty five years experience. He had been a senior general practitioner with the Women's and Children's Hospital for twelve years. Since 1993 he has been a visiting medical specialist at the Hospital. He has held the position of clinical lecturer for a number of years at the medical schools of the University of Adelaide and Flinders University. He has been a supervisor, a training advisor and more recently an external clinical teacher with the Royal Australian College of General Practitioners. Dr Petchell had the advantage of being able to make a comparative assessment of the plaintiff's condition. He was the only practitioner who had examined and observed her prior to the collision. Dr Petchell's written reports outlined his views about the plaintiff's injuries and the effect of the collision. He gave evidence in amplification of the reports. He was of the view that the plaintiff had suffered a serious neck injury with long lasting effects. He believed that she was permanently unfit to continue as a geriatric physiotherapist.

Decision

Reasons for decision

DOYLE CJ GRAY J

For these reasons the appeal must be allowed, and the judgment of the District Court set aside. This court is not in a position to re-assess the damages as the issue of the plaintiff's credit remains unresolved. Regrettably, it is necessary to order that there be a rehearing before a different District Court judge.JUDGMENT CITATIONS AS LISTED IN APPEARANCE IN JUDGMENT1 The parties are referred to as plaintiff and defendant.2Professor Issy Pilowsky, "Abnormal illness behaviour: A 25th anniversary review" Australian and New Zealand Journal of Psychiatry 1994; 28:566-673 at pp 567-5683 Papps v Police (2000) 77 SASR 2104 (1999) 73 ALJR 3065 (1992-93) 176 CLR 256 6M Freeman et al "A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome" Journal Club 1999 24:1 p 86-98 at p 867 Papps v Police (2000) 77 SASR 210

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, GRAY J

Full text does not contain this section.