Paul Orfeo Fenech v Shahrouz Amin Kheyoboui

[1999] NSWCA 149

CITATION:	PAUL ORFEO FENECH v SHAHROUZ AMIN KHEYOBOUI [1999] NSWCA 149 revised - 02/06/99
FILE NUMBER(S):	CA 40155/98
HEARING DATE(S):	19 March 1999
JUDGMENT DATE:	25 May 1999
PARTIES :	PAUL ORFEO FENECH v SHAHROUZ AMIN KHEYOBOUI
JUDGMENT OF:	Mason P at 1; Meagher JA at 1; Sheller JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5060/97
LOWER COURT JUDICIAL OFFICER:	George ADCJ

COUNSEL:	G Little/J Singh (Appellant) R C Tonner (Respondent)
SOLICITORS:	Stacks - The Law Firm (Appellant) Holman Webb (Respondent)
CATCHWORDS:	APPEAL AND NEW TRIAL - New Trial - Miscarriage of justice - Failure of Trial Judge to give adequate consideration to the evidence and to provide adequate reasons for decision
DECISION:	Allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40155/98
DC 5060/97


MASON P
MEAGHER JA
SHELLER JA

Tuesday 25 May 1999

PAUL ORFEO FENECH
v SHAHROUZ AMIN KHEYOBOUI

JUDGMENT

1 THE COURT: At the conclusion of argument the Court pronounced orders upholding the appeal, setting aside the verdict and costs orders in favour of the defendant entered by George ADCJ, ordering a new trial as to damages, and providing for costs.
2 This appeal revealed a miscarriage of justice that is both serious and difficult to comprehend.
3 An action pursuant to the Motor Accidents Act 1988 was tried before George ADCJ on 19 and 20 January 1998. Judgment was reserved and delivered on 20 March 1998.
4 The appellant sued for damages suffered through the negligence of the respondent, who was the driver of another vehicle. Liability was put in issue in the pleadings, but conceded at the start of the trial.
5 The appellant was injured in an accident that occurred on 2 February 1988. There was unchallenged evidence about the circumstances of the accident from three sources:
1. In par 3 of the Statement of Claim it was pleaded that the plaintiff was stationary in his motor vehicle parked in Glebe Point Road, Glebe when the vehicle was hit in the rear by the vehicle driven by the defendant. It was early afternoon. When liability was admitted, it is a fair inference that this pleading was admitted.

2. The appellant described the accident in his evidence (Black AB 11). He was sitting in his van parked on the western side of Glebe Point Road when he saw the other car coming towards him. Asked what he did, he answered:
Well in front of the van there was a river and my first impression was that when it’s going to hit me I’m going to go in the river and drown so I slam my foot on the brakes and put all my pressure on the steering wheel so I can lock all four wheels up to eliminate the van to go in the water.
He described the impact as:
Very hard, it mushroomed the steering wheel from the impact towards me. [See BAB 40.]
This account of the accident was unchallenged in cross examination.
3. Several of the medical reports that were put into evidence recounted a similar history.

6 The trial commenced with the tender, without objection, of bundles of the plaintiff’s medical reports and the defendant’s medical reports. The plaintiff’s bundle consisted of 57 reports spanning the period from 11 February 1988 to 10 November 1997. Eighteen of these were reports from Dr Shane Waddell, an orthopaedic surgeon. But over 25 other medical practitioners were represented, covering a range of medical fields. Nineteen medical practitioners were represented in the defendant’s bundle.
7 The appellant gave evidence about his injuries and disabilities. He was 48 at the time of the accident, which occurred during the course of his employment as an NRMA road services patrolman. He suffered immediate pain to his neck and hands. He was taken to hospital, examined briefly, provided with a collar, then discharged. He attended his general practitioner that day and x-rays were arranged. He was referred to Dr Waddell for treatment of the pain in his neck and both arms. Physiotherapy commenced. In April 1988 the appellant was in hospital for 11 days receiving neck traction which he described as very painful.
8 The appellant was off work throughout 1988, returning to light duties in February 1989. He received workers’ compensation.
9 In November and December 1988 surgery to each of the appellant’s two forearms brought a slight improvement to his ongoing problem of pins and needles.
10 The appellant gave evidence of problems and pain in his hands and neck as well as headaches, dizziness and tinnitus. A lump developed in his left hand and this was treated with surgery in April 1989. Physiotherapy continued throughout 1989, as did medication with Panadeine Forte and other drugs.
11 He suffered an injury to his right knee in February 1992. In December 1992 he underwent surgery on the knee, but also on his right shoulder. Particularly during 1993 and 1994, he saw a spate of medical practitioners about various problems stemming from the accident.
12 The appellant has not worked since March 1995 although, in his words, he would have continued working “till I died”. He described the present state of his neck as “very painful, very sore”, giving rise to chronic headaches. There are still pins and needles as well as weakness in the right shoulder and arm. Physiotherapy and strong medication were continuing.
13 These symptoms are consistent with the appellant’s unchallenged account of the accident and are also corroborated by the swathe of medical reports tendered by the appellant. None of the doctors was called for cross-examination on his or her report. None suggested the appellant was a malingerer, many quite the reverse.
14 The following is a sample of the unchallenged medical evidence of the appellant’s doctors:
(i) Dr Waddell, an orthopaedic surgeon, was consulted by the appellant for treatment or advice on many occasions between 1988 and 1997. Dr Waddell expressed no doubt about the genuineness of the symptoms or their linkage with the 1988 accident. Based upon examination and x-ray, Dr Waddell diagnosed the appellant as having sustained an indirect injury to his cervical spine causing an aggravation of the underlying degenerative changes. He also sustained a musculo-ligamentous injury to both upper limbs. This diagnosis was found to be consistent with the history as given and clinical findings (Report 12 August 1991). In a report dated 24 June 1992 Dr Waddell stated that the appellant continued to have ongoing problems with both his neck and both arms following the injury of 2 February 1988. The doctor did not feel that he would ever regain the full use of his neck or either upper limbs. He believed at that stage that the appellant was capable of maintaining his current workload but would need occasional periods of rest and physiotherapy when the pain became overwhelming. He assessed the appellant as having a permanent impairment of his neck and upper spine of 20% and permanent impairment of the right arm of 15% and of the left arm of 10%.
It was Dr Waddell who recommended a manipulation of the appellant’s shoulders while he was having a general anaesthetic for an arthroscopy of his left knee (report dated 4 July 1994).
(ii) In December 1989 Dr Blake an orthopaedic surgeon diagnosed a long-standing and moderately severe cervical spondylosis, with a moderately severe superimposed cervical strain or whiplash.
(iii) Dr Scoppa an ear, nose and throat surgeon, expressed the opinion on 14 October 1997 that a feeling of pressure in the ears, loss of balance, tinnitus and loss of hearing were probably caused by the injuries sustained on 2 February 1988 and that they will be permanent. He referred to a progressive sensori-neural hearing loss that has “probably mostly occurred as a result of the injuries”.
(iv) Dr Michael Besser, a neurosurgeon reported on 24 September 1997 that the appellant had quite advanced spondylitic disease which had
no doubt been aggravated by his motor vehicle accident in February 1988. This is going to be permanent and will probably be slowly progressive. In the absence of decompressive surgery his prognosis is guarded but clearly the surgery does have some significant risk.

(v) A consultant psychiatrist, Dr Canaris diagnosed significant depression in March 1994. He attributed this to the combination of chronic pain, its attendant limitations and the financial strains arising from inability to work to previous capacity.
(vi) On 10 March 1994 Dr Rivett an orthopaedic physician assessed impairment of the neck at approximately 50%, loss of use of left upper limb at or above elbow of 10%, loss of use of right limb at or above elbow of 15% and loss of use of both upper limbs below elbow of 5%. All of these figures were long term and may be considered permanent. He considered these findings to be consistent with the accident of February 1988.
15 The defendant’s medical reports tendered at trial adopted a range of positions. Perhaps the most adverse to the appellant was that of Dr Funnell dated 24 October 1988 in which the opinion was expressed that there is no consistent or clear evidence of genuine neurological impairment of the upper limbs or of substantial residual injury to the neck or shoulder girdles. Dr Funnell suspected that the appellant may well be consciously exaggerating and prolonging his reports of pain and disability.
16 However, the respondent’s medical reports were not all adverse. For example, Dr Harvey concluded that the appellant’s cervical spondylosis could have been aggravated and the onset of symptoms precipitated by the accident in February 1988 described by the appellant. And Dr McKessar thought it likely that the appellant did suffer an aggravation of his pre-existing cervical spondylosis and that he still had some continuing symptoms relating to it.
17 As one might expect with soft tissue injury, varying opinions were expressed. Some, but only some, of these opinions provided a basis for concluding that any significant impairment of an underlying condition had subsided by the time of the trial (see eg Dr Harvey-Sutton’s report of 2 February 1995).
18 The appellant was cross-examined for some time. It was not suggested to him that the accident had not occurred as he reported. Nor was it put to him that he suffered no injury or pain stemming from the accident. It was suggested that complaints had been exaggerated (see eg Black AB 38).
19 Counsel for the defendant at trial had access to the clinical notes of the appellant’s general practitioner. Armed with this material, he put to the appellant that the appellant had complained of several of his symptoms prior to the accident. By and large the appellant was not prepared to agree with this material and the trial judge would have been entitled to be sceptical of the appellant’s credibility based upon his non-responsiveness.
20 The high point of the respondent’s case at trial was the calling of the appellant’s general practitioner Dr Marinucci. Dr Marinucci had treated the appellant for various matters since September 1985. Based upon his clinical records, he confirmed that there were occasions prior to the accident when the appellant had complained of dizziness, symptoms indicative of carpal tunnel syndrome, tingling in the fingers, impotence, dizziness, diminished hearing and tinnitus. This evidence was clearly relevant to the assessment of the appellant’s credibility as well as direct evidence as to the causative impact of the accident upon the symptoms reported by the appellant to many doctors whom he visited after the accident. It is, however, relevant to observe that Dr Marinucci disputed the suggestion that no injury was suffered in the accident. He said that he regarded the matters reported to him by the appellant prior to 2 February 1988 as minor transitory problems none of which called for particular treatment. Dr Marinucci expressed the view that the changes which had occurred in the appellant’s cervical spine as they appear today were directly related to the trauma of February 1988 (Black AB 69). He was prepared to concede the possibility of a pre-existing carpal tunnel syndrome, but was of the opinion that the accident had aggravated it (Black AB 70).
21 There was no further evidence.
22 Early in the submissions stage of the trial George ADCJ gave the following indication:
I found the plaintiff to be an unsatisfactory witness, notwithstanding that there’s clear medical evidence of some injury sustained as a result of the collision. I haven’t had the advantage of submissions of course but it certainly appears clearly on the evidence that some of the matters complained of were pre-existing, if not all of them as being pre-existing, notwithstanding that the medical reports I think from both sides emphasise that even if that’s the event the collision no doubt exacerbated the pre-existing condition and that in itself is compensable.

23 Not all of the submissions have been transcribed. There is however a record of the judge being told, without objection, that the out of pocket expenses were in the vicinity of $50,000 - $60,000 being moneys paid by the workers’ compensation insurer purportedly arising out of the incident in February 1988.
24 As indicated, judgment was reserved. On 20 March 1998 his Honour entered judgment for the defendant. The entirety of his reasons were as follows:
In this matter a motor vehicle accident occurred on 2 February 1988 for which liability is admitted. Apart from the fact of the accident there is very little else that I am satisfied with. There have been further compounding the nature of the injuries complained of two subsequent accidents neither of which concern me.

There is evidence led by the plaintiff as to what occurred in the accident in terms of the motor vehicle damage despite the fact that he was an NRMA driver and it was an NRMA vehicle that was involved. Such evidence as does exist is by way of history given to various medical experts and includes such comments as being hit whilst stationary, which is the situation that I accept, by a vehicle that was out of control, driven at excessive speed, and on one version actually tried to leave the scene of the accident so cannot have been too badly damaged. The difficulty that I have had is that I have found the plaintiff to be an unreliable witness, and in particular an inaccurate historian.
There are four principal matters complained of and said by the plaintiff to have arisen as a result of this accident. Unremitting neck pain, vertigo, impotence and back pain, all are said by the plaintiff to have arisen as a result of the accident. Each of back pain, impotence and vertigo were complained of to his general practitioner at dates prior to the accident, some as long as two years previous. In those circumstances I am unable to accept the plaintiff’s version as to what injuries of [sic] any in fact he suffered as a result of this accident. Further, I note that one of the doctors that he consulted, Dr Waddell, referred the plaintiff to a Dr Funnell, bearing in mind this was the plaintiff’s treating doctor and was first seen by Dr Funnell about four months after the accident. The plaintiff’s treating doctor, Dr Funnell has said in his report of 4 July that the report of pain and associated disability involved the use of exaggerated and emotional verbal descriptors, that Mr Fenech exhibited quite exaggerated pain behaviours including guarding and hyper-activity, that there was no evidence of genuine neurological impairment. His current presentation indicates considerable exaggeration of complaint and does not allow the formulation of clear or specific physical diagnosis.
In a subsequent report by the same doctor to Dr Shane Waddell dated 24 October 1988, several months later, Dr Funnell says:
‘It is my final opinion there is no consistent or clear evidence of genuine neurological impairment of the upper limbs or of substantial residual injury to the neck or shoulder girdles. I suspect that Mr Fenech may well be consciously exaggerating and prolonging his reports of pain and disability. I do not regard any further investigation or rehabilitation treatment are likely to be of benefit.’
In those circumstances where the treating specialists were unable to determine the extent of injuries, if any, that were suffered certainly I am unable to do so. In those circumstances where the burden of proof is on the plaintiff the plaintiff must lose.
Accordingly I enter judgment for the defendant.

25 This Court had the benefit of written submissions. We indicated at the outset of the hearing that we wished to hear first from counsel for the respondent who was asked why there should not be a new trial in this matter. Counsel frankly and helpfully conceded that there was little he could say.
26 This concession was properly made.
27 Making every allowance for the pressures under which trial judges operate in the District Court, the judgment betrays a serious miscarriage that requires the ordering of a new trial as to damages before a different judge.
28 The begrudging acknowledgement that the accident occurred at all - in the second paragraph of the judgment - is unjustified in the light of the material set out in par 5 above. It is an unfortunate precursor to the assessment of the case on damages.
29 The reasoning disclosed in the judgment falls far short of that which is appropriate to do justice to the difficult issues involved in the case (cf Sovlemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
30 The appellant’s evidence as to his injuries and disabilities is not recounted. Instead, the judgment launches into criticism of particular heads of damage. Some cases are so effectively destroyed that they deserve summary execution, but this was not such a case.
31 Regrettably, the judgment does not condescend to addressing, let alone grappling with, the issues of causation thrown up by the unchallenged evidence about the injury and the medical evidence, the overwhelming weight of which supported the appellant’s case to at least some degree. This can even be said about the evidence of Dr Funnell upon which the judge placed such reliance.
32 There are always difficulties in reliance upon remarks made by a trial judge arguendo. The whole purpose of submissions is to expose hypotheses for discussion and debate. The functions of hearing submissions and reserving judgment would be defeated if a judge were to be held hostage to remarks made during the course of trial or during submissions. Nevertheless, the passage extracted above (par 22) does represent a fair, or at least a defensible, analysis of the position presenting itself at the close of the evidence. It would certainly have been open to the trial judge to have reached conclusions along those lines. It was certainly incumbent upon him to signal the volte face that was to emerge in the judgment. (It has not been suggested that he did so.)
33 There was much to be desired about the credibility of the appellant’s evidence, at least from a reading of the transcript. In any event, the trial judge was entitled to form his own view on the matter. And there was evidence that some or even most of the appellant’s symptoms had manifested themselves prior to the accident. But not all of them. And the only doctor who gave oral evidence (the appellant’s general practitioner) maintained the position that the accident aggravated a pre-existing condition even if it did not cause it. This was the overwhelming weight of the many medical reports that were tendered.
34 It is true that this was a soft tissue injury and that some of the doctors expressed the view that the appellant had exaggerated his symptoms. It was also true that much of the medical material was dependent upon the accuracy of the history and symptomology reported by the appellant. But there is no finding so destructive of the appellant’s credibility that provided a basis for ignoring this mass of evidence. Had such a finding been made it would probably have been perverse.
35 This was a case where the appellant was sitting in his car when another car crashed into the back of it. Fortunately or unfortunately, the appellant had seen the car coming and had braced himself for impact, fearing that his van would be pushed into the river. This probably contributed to the neck injuries. The appellant was taken to hospital. He did not return to work for over a year. It was not suggested to him that he was a malingerer. He underwent prolonged painful traction, physiotherapy and surgery in circumstances clearly indicative of a causal link with the accident. Several of the doctors who examined him, most notably his own orthopaedic surgeon Dr Waddell, were aware of the pre-existing degenerative condition. Nevertheless they were firmly of the view that the accident aggravated that condition.
36 The trial judge simply failed to grapple with these issues. It was not open, in the circumstance of this case, to dismiss the appellant’s case in its entirety based upon the reasoning exposed in the judgment.
37 The invocation of Dr Funnell did not provide a proper basis for the wholesale rejection of the appellant’s case. At its highest it indicated exaggeration and uncertainty. The appellant’s case as presented to him may have created a diagnostic problem for Dr Funnell. But the doctor’s exasperation, justified or not, could not excuse a trial judge from his duty to address the issues and decide the facts.
38 In any event, this was not a case where “the treating specialists were unable to determine the extent of injuries, if any, that were suffered”. The specialists may have disagreed, but there is nothing unusual about that. The disagreement among the specialist enlivened the judicial function rather than justified its abnegation.
39 Whatever the appellant’s entitlement to damages for non-economic loss at the date of trial (cf Motor Accidents Act s79 and Roberts v White [1999] NSWCA 12) it was clear that the appellant suffered significant wage loss and incurred substantial medical expenses in treating his condition as it manifested itself in and immediately after the accident. Although not directly probative, it is not to be overlooked that the appellant was accepted for workers’ compensation.
40 In these circumstances it was not open to the judge to dismiss the appellant’s claim in its entirety and to order indemnity costs.

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