Nash v Berton No. Scciv-00-646

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 that all or much of the abnormal reaction was attributable to these pre-existing circumstances.
In the circumstances of the case, I agree with Gray J that the finding to the effect that the plaintiff was deliberately manipulating her evidence is unsafe, and cannot stand.
Another difficulty with the Judge’s reasons, and with his approach to the case, is the statement in his reasons that the plaintiff had not made “any claim in respect of psychological sequelae”. As Gray J points out, this is not correct. In the Statement of Claim the plaintiff complains that as a result of the accident she suffered “reactive anxiety depression”. The fact that the plaintiff did not call expert psychiatric or psychological evidence does not, in my respectful opinion, mean that the plaintiff is to be taken to have abandoned any such claim.
For these reasons I agree with Gray J that important findings by the trial Judge cannot stand, and that these issues require re-consideration. Because the plaintiff’s credit and credibility is such an important aspect of the case in this respect, it is not possible for this Court to resolve the dispute. Accordingly, and unfortunately, it is necessary that the matter be remitted for a further trial of the issue of damages.
There is a further problem with the Judge’s reasons. The Judge awarded the plaintiff damages for loss of earning capacity to 12 July 1996. He recognised that this was a “generous view”. During that period of time the plaintiff’s employment at two different institutions was terminated. Nevertheless, the Judge made no award of damages reflecting the fact that the plaintiff was likely to experience some difficulty in finding further employment. If that was the only issue, this Court could make an appropriate allowance under that head, but as the damages must be re-assessed, there is no need to do so. The re-assessment of the damages will require a re-consideration of the question of whether the loss of employment during the period in question was a result of the accident.
Nothing that I have said should be taken as doubting the entitlement of the trial Judge to conclude not just that the plaintiff’s evidence about her injuries was unreliable (which might be a result of depression) but furthermore that the plaintiff was deliberately untruthful. In a case like this that was, as I understand the issues, something that fell to be decided. It was common ground that the plaintiff’s reaction to the accident was abnormal, in the sense that no physical or organic basis could be found for symptoms of the nature and severity claimed by the plaintiff. I accept that trial Judges must be cautious about making findings that witnesses are untruthful, and must exercise particular caution in acting on the basis of demeanour alone when the witness is giving evidence. However, our trial process is one which is intended to focus on the demeanour of a witness when appropriate. Obviously, a trial Judge should make allowance for the circumstances of the courtroom and of the case, and for what the Judge knows about the witness in question, before drawing an adverse inference on the basis of demeanour. But sometimes there will be cases in which demeanour is an important and reliable guide to truth. But none of that denies the need for trial Judges to make careful findings on the issue, and to deal with features of the evidence that might lead to the conclusion that the evidence of a witness is unreliable without being untruthful. The difficulty in the present case is that the trial Judge has not done that. The finding that the plaintiff was not a truthful witness has not been made after paying the required attention to the important aspects of the evidence bearing on that point.
It is for those reasons that I would order that the appeal be allowed, the judgment of the District Court be set aside, and that the matter be remitted for assessment of damages before a different Judge.
NYLAND J: I agree with the reasons of Gray J and the orders proposed by the Chief Justice.
GRAY J The plaintiff[1] sustained personal injury in a motor vehicle collision on 23 February 1996. She was awarded damages after a trial in the District Court. The plaintiff has appealed against the adequacy of the award.
[1] The parties are referred to as plaintiff and defendant.
Background
The collision occurred at a suburban intersection. The plaintiff was stationary within a "turn left at any time with care" lane. The defendant's vehicle collided with the rear of her vehicle ("the collision"). The defendant admitted negligence. The trial judge proceeded to assess the plaintiff's damages at $16,620.00. This included economic loss of $7,500.00.
The plaintiff was employed part-time as a geriatric physiotherapist at both Resthaven and Gloucester Nursing Home. She worked at Resthaven on the afternoon following the collision. However, the next day, Saturday, she felt pain in her neck. The following Monday she consulted Dr Petchell, her general practitioner. She has not worked since. Both positions have been lost.
The plaintiff's case was that she sustained a neck injury which led to permanent disability. She also suffered a psychological overlay. The defendant disputed the existence of any serious injury or disability.
The plaintiff has suffered a number of other injuries. She sustained a neck injury in 1970. She was hospitalised. She recovered within ten to twelve weeks. She returned to work. The plaintiff received treatment for depression from a psychiatrist for a number of years up until 1985. In 1985 she was diagnosed as suffering from Cushing's syndrome. She receives hormone therapy as a result. In two separate incidents in 1995 she suffered work related injuries to her neck and arm. In February 1998 she was involved in another rear end collision. She claimed to have suffered a brief flare-up of her ongoing symptoms from the 1996 collision.
The Plaintiff's Case
The plaintiff claimed to have sustained a flexion-extension injury to her neck as a result of the collision. This injury led to pain, restricted movement, restricted function, reactive anxiety and depression. Dr Petchell prescribed medication, physiotherapy and a home exercise programme. The plaintiff wore a cervical collar. She was referred to a neurosurgeon and a psychiatrist for treatment and to Mr Hoare, as specialist surgeon.
The plaintiff complained of headaches and ongoing pain to the back of her neck. Heavy lifting and extensive neck movements caused pain. She was left with an inability to focus on matters and a general sadness.
The plaintiff said that she was unable to continue with her employment. She suffered economic loss and a loss of earning capacity. Her ability to engage in normal domestic duties was impaired.
The plaintiff had consulted Dr Petchell from 1981. She continued to consult him following the collision. Dr Petchell considered that she had sustained permanent ligamentous damage to her neck and that she was left with ongoing disability. Mr Hoare agreed with this opinion. Both considered that the plaintiff suffered a psychological overlay.
The Defendant's Case
The defendant submitted that the plaintiff had suffered minimal injury. Any injury had resolved within two months of the collision. If the plaintiff had ongoing problems they were unrelated to the collision. The defence relied on the evidence of Mr Awerbuch, a specialist physician. He saw the plaintiff, once, some three years after the collision. He considered that the plaintiff had suffered no permanent injury as a result of the collision.
The Trial Judge's Findings
Credibility
The trial judge found the plaintiff to be unconvincing. She was evasive under cross-examination. He said that she:
“... appeared to be taking great care not to contradict any contemporaneous documentary evidence, part of which she had evidently memorised and even quoted from at one point. I am not convinced that all of what she purported to be her independent recollection was in fact such, and from my observations of her in the witness box I formed the view that she was exaggerating her symptoms."
He considered the plaintiff to be an unreliable witness.
“I am not convinced that her symptoms are as severe as she has represented them to be. In the witness box, she appeared to have a range of neck movement which belied her presentation to Mr Hoare and Mr Awerbuch in 1999 but was consistent with Dr Petchell’s evidence that her neck movement at that time was not very restricted. ... While these suggestions of exaggerated and inconsistent presentation carry little weight in themselves, they nevertheless accord with my own assessment of the plaintiff.”
He concluded that the plaintiff was:
“... a poor historian and has taken a biased view of events in order to boost her case.”
The trial judge apparently took the view that the plaintiff was manipulating the truth.
Other Findings
The impact did not push the plaintiff's car forward any significant distance and did not involve severe jolting. The trial judge considered that the degree of damage to the vehicles could not justify a finding that the impact was severe. He found that the force of the impact was minor.
The trial judge concluded that the plaintiff had not made any claim in respect of psychological sequelae and that this was not an issue in the case.
The trial judge preferred the opinion of Mr Awerbuch to that of Mr Hoare. He found that the plaintiff suffered an injury to her neck as a result of the collision. He considered this to be a minor flexion extension injury which resolved in a few months. The trial judge found that the loss of the plaintiff's part time employment was not causally related to the collision.
The Appeal
Psychological Sequelae
It was submitted that the trial judge erred in considering that the plaintiff's psychological sequelae from the collision was not an issue at trial.
I agree. The Statement of Claim alluded to psychological issues. The written and oral evidence of the medical witnesses addressed the plaintiff's psychological state in some detail. As counsel for the defendant conceded, psychological overlay was an issue in the case. The trial judge's misunderstanding has led to error. This error has had significant consequences.
The trial judge may have been led into error by counsel for the plaintiff. In final submissions it was accepted that no issue of psychiatric illness arose. In that context counsel referred to abnormal illness behaviour and dysfunctionality. That submission may have caused confusion in the judge's mind. Although the plaintiff did not allege a psychiatric disability it was her case that there was some psychological sequelae or functional overlay causing her distress and disability.
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 567-568
Dr 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.
Dr Petchell gave evidence of the plaintiff's pre-accident mental state. He said she suffered from bipolar depression.
Dr Petchell described the depression as follows:
"Q.I think you are aware, also, that she sought psychiatric treatment from Dr Scanlon over many years.
A.Yes, many years, yes.
Q.That was for marital problems.
A.Yes, and bipolar depression in particular.
Q.Bipolar depression, can you just explain to his Honour what that is.
A.Bipolar depression is a depression where there are extreme highs and lows. That would be the easiest way of describing it.
Q.Is it sometimes referred to as a 'manic depressive disorder'.
A.Yes, that's correct. When a person is in a high, there is exaggerated thought activity and behaviour, a lot of it is dissociated to normal life, then that is the manic phase."
He commented further:
“When coming into the consulting room, she can be a little difficult at times, as far as communication is concerned. That would be one of the most common experiences I have had with her. I have got used to it, so we get along very well. At times, she can be a little rigid in her thinking. It is often difficult to put other points of view to her. Obviously, at times where therapy is wanted, it can be a little difficult to get her to go along with a certain therapy, whereas, at other times, she knows that she is depressed and needs help, so will go along with what is suggested. She also has hypertension, so that has to be treated too.”
I consider that the trial judge erred in failing to consider and evaluate Dr Petchell's evidence when making findings. The reasons of the trial judge show a consideration of parts of Dr Petchell's evidence and an apparent acceptance of his evidence on a number of points. He noted Dr Petchell's unchallenged evidence about the plaintiff's pre-accident mental state, including her bipolar depression but he then made no apparent use of the evidence. However no findings were made.
On critical issues, for example credit and extent of injury, no regard was had to Dr Petchell's evidence.
Credibility
The plaintiff complained that the trial judge failed to give adequate reasons for his credibility findings and conclusion that the plaintiff had falsified her evidence to "boost her case".
Although the trial judge went further than mere findings, an analysis of the trial judge's reasons reveals little apart from general conclusions about credibility. Findings that the plaintiff was evasive, dogmatic, biased and that she set out to boost her case are difficult for the appellate court to assess, evaluate, and test without a clear indication of the basis for such conclusions.[3]
[3] Papps v Police (2000) 77 SASR 210
Recent judicial pronouncements question the accuracy of conclusions drawing from observations of witnesses whilst giving evidence. The remarks of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq)[4] are apposite. Kirby J said at [88]:
"There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'), Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour'.
...
... Fifty years ago, the Supreme Court of Canada wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time had confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility."
His Honour continued at [89]:
"None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing."
[4](1999) 73 ALJR 306

Kirby J considered the conclusivity of general credibility findings. He said at [93]:
"Yet even when the trial judge has expressed conclusions as to the credibility of a particular witness, that does not represent the end of analysis by the appellate court. It is only the beginning of a particular analysis which is then required. In many appeals, such a credibility finding will be far from conclusive of the proper outcome of the entire trial, and hence of the appeal."
Kirby J then considered a number of circumstances warranting intervention by an appellate court. Of particular relevance to this appeal, he said:
"The reasons given by the trial judge for rejecting the evidence of a particular witness may go beyond a simple statement about the witness's appearance or demeanour. The additional reasons may demonstrate that the judge took into account irrelevant considerations or has not properly weighed all of the relevant considerations."
In this case the trial judge considered that psychological factors were not an issue. He failed to have regard to Dr Petchell's evidence about the plaintiff's background and mental state. In doing so he failed to consider relevant and probative evidence on the issue of the plaintiff's credibility. The trial judge erred in failing to consider these matters.
The finding that the plaintiff set out to "boost her case" is a serious finding. In Smith v NSW Bar Association[5] Deane J said at (271):
"There are many circumstances in which a trial judge ... is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made. Ordinarily, a party or other witness will not be concerned or entitled to set out to establish that, if his or her oral evidence is ultimately found to be mistaken, the mistake was an honest one. As a consequence, material which serves only to establish that a party or other witness subjectively believes that his or her evidence is correct is likely to be inadmissible in the proceedings in which the evidence is given. And there is good reason for that. The length, cost and hazards of litigation would be intolerably increased if each party or other witness was required not only to deal with the issues before the particular court but also to anticipate the ultimate rejection of his or her evidence and seek to establish that, notwithstanding that it was mistaken, it was honestly given."
[5] (1992-93) 176 CLR 256
It is striking that the trial judge failed to give any consideration to, or make any findings about, the plaintiff's mental state. The evidence of Dr Petchell was unchallenged and provided a clear basis for making findings. Dr Petchell's evidence offered an explanation for any unusual presentation by the plaintiff in the witness box. Failing to consider these factors greatly disadvantaged the plaintiff.
I consider that the plaintiff's past history of depression, her psychological overlay and Dr Petchell's evidence about her presentation on consultation were important matters. All needed to be evaluated before conclusions as to the truthfulness of the plaintiff could be fairly drawn. The trial judge erred.
Nature and Extent of Injury
It was submitted that the trial judge had not considered Dr Petchell's evidence when making findings about the extent of the plaintiff's injury and her ongoing disability. It was said that he erred in limiting his review to the evidence of the two specialists Mr Awerbuch and Mr Hoare.
The trial judge summarised the views of the three practitioners. He then observed that the opinions of Mr Hoare and Mr Awerbuch were "squarely at odds". He resolved the difference by preferring Mr Awerbuch. His findings as to the nature, extent and consequences of the plaintiff's injuries were made without considering, evaluating or weighing Dr Petchell's evidence.
Dr Petchell was the only medical practitioner to have had any extensive contact with the plaintiff. As earlier observed, he had the advantage of being her general practitioner both before and after the collision. Mr Hoare was consulted within three months of the collision and then some three years later.
Mr Awerbuch saw the plaintiff on only one occasion some three years after the collision. His ability to express an opinion about the nature and consequences of her injuries was limited.
The trial judge erred in believing that he needed to choose between the evidence of Mr Hoare and Mr Awerbuch. The correct approach was to consider the evidence of all three doctors and weigh their evidence appropriately. He erred in failing to consider probative evidence from Dr Petchell in coming to his conclusions about the nature and consequences of the plaintiff's injuries.
The Nature of the Impact
The plaintiff submitted that the trial judge drew inappropriate and unjustified conclusions from the nature of the impact of the collision.
A joint article[6] from a panel of medical experts was tendered. The article included the following:
"... One of the more frequently disputed conditions in the medical literature in recent decades is the constellation of symptoms comprising acute whiplash and its chronic iteration, late whiplash (collectively known as whiplash syndrome). The primary reason for the dispute stems from the fact that the validity of whiplash syndrome often is a key issue in litigation arising from the alleged etiology of the whiplash, i.e., a motor vehicle crash in which the injured party is not at fault. The judge and/or jury in such cases are asked to weigh opposing medical and scientific evidence supporting both the plaintiff's position that whiplash injuries and their sequelae are real and the defense position that the injuries are manufactured or greatly exaggerated. ..."
[6]M Freeman et al "A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome" Journal Club 1999 24:1 p 86-98 at p 86
The authors concluded:
"... As a result of the current literature review, it was determined that there is no epidemiologic or scientific basis in the literature for the following statements, whiplash injuries do not lead to chronic pain, rear impact collisions that do not result in vehicle damage are unlikely to cause injury and whiplash trauma is biomechanically comparable with common movements of daily living."
The trial judge drew conclusions about the extent of injury likely to result from his characterisation of the impact as minor. The trial judge's emphasis on the minor nature of the collision and the apparent conclusions drawn, in my view were invalid. This error has led to an inappropriate assessment of Mr Hoare's evidence.
Loss of Employment
The plaintiff challenged the trial judge's finding that:
"... the loss of her two part-time jobs in physiotherapy for aged people was not causally related to the accident."
Complaint was made about the lack of reasoning in support of this conclusion. No specific reasoning was advanced. The failure of the trial judge to provide reasons to allow his findings to be reviewed on appeal amounted to error.[7]
[7] Papps v Police (2000) 77 SASR 210
It was submitted that the trial judge did not consider correspondence tendered from the plaintiff's employers. Unchallenged evidence from Resthaven directly supported the plaintiff's claim. Evidence from the Gloucester Nursing Home also provided support. It was also said that the trial judge failed to have regard to the opinion of Dr Petchell and Mr Hoare that the collision and resulting injuries were a cause of the loss of employment. The trial judge was obliged to consider this material. He erred in failing to do so.
Conclusions
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 JUDGMENT
1     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 567-568
3     Papps v Police (2000) 77 SASR 210
4 (1999) 73 ALJR 306
5 (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 86
7     Papps v Police (2000) 77 SASR 210

[2001] SASC 94

24 April 2001