Pt v Shorey

[2001] NSWCA 127

CITATION:	PT v SHOREY [2001] NSWCA 127 revised - 13/06/2001
FILE NUMBER(S):	CA 40168/00
HEARING DATE(S):	26 April 2001
JUDGMENT DATE:	7 June 2001
PARTIES :	P T LIMITED (as Trustee for McNamara Property Trust) v SHOREY & Ors
JUDGMENT OF:	Handley JA at 1; Powell JA at 70; Davies AJA at 71

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8770/97
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL:	C G Gee QC/P S Jones (Appellant) A S Morrison SC/A C Casselden (Respondents)
SOLICITORS:	Price Waterhouse Coopers Legal (Appellant) Stacks The Law Firm (Respondent 1) Stewart Cuddy Mockler (Respondent 2)
CATCHWORDS:	PERSONAL INJURY - damages - credit based finding that plaintiff not malingerer may not be overturned - causation - finding as to causal link between fall and conversion disorder may be overturned
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Jones v Bartlett [2000] 75 ALJR 1 Warren v Coombs (1979) 142 CLR 531 Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 HL
DECISION:	Appeal allowed. Orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40168/00

DC 8770/97

HANDLEY JA

POWELL JA

DAVIES AJA

7 June 2001

P T LIMITED (as Trustee for McNamara Property Trust) v ROSE SHOREY & ORS

The respondent suffered soft tissue injuries to her back in a fall. After some years she claimed that she could not walk. It was common ground that there was no physical reason why she could not walk. The appellant was found liable for the respondent’s injuries. Dodd DCJ assessed the plaintiff ’s damages at $555,212.55. The defendant appealed seeking a drastic reduction of the damages. The plaintiff cross-appealed seeking a massive increase in her damages.

The major issues in the plaintiff ’s case on damages were whether she was a malingerer and, if she was genuine, the question of causation. The Judge found that she was not a malingerer and that she suffered from a conversion disorder which arose from unresolved psychological conflict, and that the fall was a contributing cause of her disorder.

allowing the appeal (Davies AJA dissenting): (1) The Judge’s conclusion that the plaintiff was not a malingerer could not be disturbed: Abalos v Australian Postal Commission (1990) 171 CLR 167. (2) The Judge’s conclusion that a causal link was established between the fall and the conversion disorder was not based on his findings as to credit. It was an inference he drew from his primary findings with the benefit of the expert evidence. As such it was open to review on a re-hearing: Warren v Coombs (1979) 142 CLR 531. The plaintiff had not discharged the onus of proving a causal link between the fall and her conversion disorder and the appeal therefore succeeded.

ORDERS

(1) Appeal allowed;

(2) Judgment for the plaintiff for $555,212.55 and costs set aside.

(3) In lieu thereof substitute a judgment for the plaintiff for $68,911.05 with effect from 29 February 2000;

(4) By consent order that the defendant pay the plaintiff ’s costs of the trial up to 11 am on 9/6/99, thereafter plaintiff to pay defendant’s costs. Appeal allowed with costs but respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Cross-appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40168/00

DC 8770/97

HANDLEY JA

POWELL JA

DAVIES AJA

7 June 2001

P T LIMITED (as Trustee for McNamara Property Trust) v ROSE SHOREY & ORS

JUDGMENT

1    HANDLEY JA: The respondent was injured on 2 April 1988 in a fall at a shopping centre at Blacktown. Following a split hearing the appellant was found liable for the respondent’s injuries and its liability is no longer in dispute. The trial Judge, Dodd DCJ, then heard the case on damages which he assessed at $555,212.55, made up as follows:

General damages $180,000.00
Interest on past general damages $ 21,450.00
Past care $ 57,381.50
Interest on past care $ 37,840.00

Future care $ 50,590.00

Out-of-pocket expenses $ 2,951.05
Future treatment $150,000.00
Future equipment $ 10,000.00
Funds management $ 45,000.00

There was no claim for loss of earning capacity.

2    The defendant appealed challenging the assessment and seeking a drastic reduction of the respondent’s damages on a re-assessment to $68,911.05 (red 2/328). The plaintiff cross-appealed seeking a massive increase in her damages to $2,035,168.50 (red 2/330).

3    The plaintiff commenced the proceedings in the District Court at Parramatta on 21 September 1989 claiming damages of $100,000 (red 1/1). The case proceeded on the basis that the plaintiff ’s injuries had an organic basis until amended particulars under DCR Pt 12 were supplied on 12 June 1998. These alleged for the first time that the plaintiff was suffering a conversion reaction as a result of her fall (red 1/24). The particulars then supplied covered 21 pages with an additional 207 pages of annexures together making up almost the whole of the first volume of the red appeal book. One’s concern at this elaboration is not diminished by the fact that the claim for out-of-pocket expenses for the 10 years or more since the accident included in those particulars totalled $2,098.00, about $200 per year.

4    The plaintiff was 56 at the date of the accident and 68 and 4 months at the date of judgment in the District Court. The following summary of the facts is taken from the judgment of the trial Judge unless otherwise indicated.

5    Early in 1985 the plaintiff experienced back pain severe enough for her to be admitted to Parramatta Hospital. On 7 April 1986 she had a lumbo-sacral spine CT scan and lumbar myelogram and later that month Dr Sengupta, an orthopaedic surgeon, performed L4-5 and L5/S1 laminectomy and discectomy for lateral recess stenosis, with facet joint fixation by screws at L5/S1. The surgery was successful and after she had recovered the plaintiff was active in doing housework and shopping for her family and was free from pain in her back until her fall in April 1988.

6    Following her fall the plaintiff was taken by ambulance to Blacktown Hospital where she was seen by Dr Sengupta. She remained in hospital until her discharge on 21 April. Following her discharge she was seen by Dr Sengupta on 13 May and 20 June complaining of low back pain radiating to her right leg. On the second occasion she was walking with a stick but she failed to keep a follow-up appointment. In his report to the plaintiff ’s then solicitors on 31 October 1988 the doctor said (blue 3/621) that he did not feel: “that she has any major problem with regard to her lumbar spine, apart from aggravating her long-standing facet joint arthropathy on a temporary basis … this particular injury has caused, in my opinion, only a temporary aggravation”.

7    The plaintiff ’s daughter, Tracey Shorey, who was then living with her parents, said that her mother started using a stick soon after coming out of hospital but could not say that her condition was getting worse and understandably, after so many years, could not give details (black 1/195). The trial Judge found that after a while the plaintiff began to use two sticks, then in July 1992 she commenced to use a walking frame, and early in 1993 she started using a wheelchair.

8    The result of these developments was that the plaintiff ceased to walk. She managed to haul herself about by using her arms and her legs, crawling, which has resulted in calluses on both knees and on the front of her ankles. It was common ground among the doctors called at the trial, and in the medical evidence given by way of report, that there was no physiological reason why the plaintiff could not walk. As the Judge said: “She can walk if she wants to, but she does not walk”.

9    The plaintiff ’s husband was diagnosed with inoperable lung cancer in July 1988 and he died in hospital on 1 January 1989. About 3 months after his death the plaintiff drove to Queensland and back for 3 weeks’ holiday. She was able to move and walk around at that stage.

10    About 12 months later she started to use two sticks to walk. She stopped driving some time in 1991 or 1992 because, she said, she experienced pain in her right leg when accelerating.

11    There was significant family disharmony following her husband’s death which included a dispute about the family home. This had been owned by her husband and their daughter, Rosa, and the plaintiff had understood that she would be able to continue to live in the house. Rosa however wanted the house sold and the plaintiff thought that she would find herself without a place to live. The problem was eventually solved when the house was purchased by her daughter, Tracey, and her husband. There was also a dispute with an insurance company over a policy intended to cover the husband’s funeral expenses.

12    The major issues in the plaintiff ’s case on damages were whether her inability to walk was genuine, or whether she was a malingerer and, if she was genuine, the question of causation. The plaintiff contended that the 1988 fall caused or materially contributed to her conversion disorder. The defendant said that the conversion disorder was caused by her husband’s death and the family tensions that followed. The Judge found that the plaintiff was not a malingerer basing this finding on the way she presented in court, the evidence of her daughter, Tracey, the presence of calluses on her knees, and her demonstrations of crawling to experts which showed her using her leg muscles.

13    There was a formidable body of medical opinion to the contrary. This was based on the plaintiff ’s inconsistent behaviour during medical examinations, the absence of any wastage in her thigh and calf muscles, which indicated the use of these muscles for weight bearing, and the presence of calluses on the soles of her feet. The latter were observed by Dr Smith on his examination on 24 October 1994 (blue 1/181). He must have examined her feet in order to note the presence of these calluses, probably with her stockings removed. At that stage she had been using a wheelchair, on the Judge’s findings, since early 1993 (red 2/296), but according to her history she didn’t use the wheelchair in the house (1/180). The plaintiff still had calluses on both feet when Dr Smith examined her again on 6 November 1996 (blue 1/182), but he did not report finding them on his final examination on 20 May 1998 (blue 1/184). By this stage she had calluses on her knees and on the front of her ankles but she still had no wastage in her thigh and calf muscles.

14    Dr Yeo said that although the crawling of the plaintiff could explain the lack of significant muscle wasting in her thighs, it could not explain the lack of significant wasting in her calf muscles. He agreed that this lack of significant muscle wasting was inconsistent with the plaintiff being confined to a wheelchair for most of the time. He said there was no question that the muscles were being used. The plaintiff was using and moving her lower legs despite her saying she could not do so.

15    The appeal against the Judge’s finding that the plaintiff was not malingering faces the usual obstacles presented by the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167. The appellant relied however on the absence of wasting in the plaintiff ’s calf muscles, and the presence of calluses on the soles of her feet until some time after 6 November 1996 as facts incontrovertibly established which were glaringly inconsistent with the Judge’s finding.

16    This submission as a matter of ordinary commonsense appears to have considerable force, but it is not directly supported by medical evidence. Dr Yeo and Dr Smith, the two orthopaedic specialists who were called, were not asked whether the only possible explanation for the absence of wastage in the plaintiff ’s calf muscles was that they were being used for walking. Yet this was what this Court was being asked to decide in order to reverse this finding. In my judgment the Court is not entitled, in a case such as this, to take such a step in the absence of appropriate expert evidence. In my judgment the appeal on this question should fail.

17    The question of causation in this case arises in an unusual way. Having found that the plaintiff was not a malingerer, the Judge concluded that she suffered “some kind of conversion disorder” which arose “from unresolved psychological conflict”. This involved various aspects of the aftermath of her husband’s death, mainly the Judge thought because of her fear of being thrown out of the family home. He then asked himself whether this disorder was caused by the fall. He referred to Dr Yeo’s evidence that “the main trigger point for this present level of serious disability is the fall”, to Dr Phillips’ opinion that the fall was “the sentinel event in the causal chain”, and to Dr Dyball’s opinion that her ongoing back pain provided a focus for her psychological problems.

18    He found that the plaintiff suffered severe back pain as a result of the fall and that her pain due to physical factors continued in some degree for approximately 12 months after the fall. He also found that the fall aggravated her degenerative disease in the lumbar spine but as I read his judgment he found that this was only a temporary aggravation. That was certainly the opinion of Dr Sengupta, her treating surgeon. The Judge also accepted Dr Smith’s evidence that the plaintiff continued to experience back and leg pain from time to time as a result of the degenerative disease in her lumbar spine.

19    The Judge said that it seemed to him that the plaintiff ’s slide into her full-blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 when she began the use of a walking stick and her husband became very ill “or at the latest on or shortly after his death on 1 January 1989”. He thought that the psychological and physical factors then became intertwined. He concluded:

“The psychological factors would not have manifested as they did without the back pain. While it may be true to say that had she not had back pain the plaintiff ’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point. She did have back pain … I find the plaintiff ’s conversion disorder was caused by a variety of factors, including the fall in 1988 in respect of which the plaintiff sues”.

20    There are a number of difficulties with this reasoning. If the fall only caused a temporary aggravation of the plaintiff ’s degenerative condition for some 12 months or so, her pain thereafter was not caused by the accident, but by her underlying condition for which the appellant was not responsible.

21    There is evidence that the plaintiff commenced using a walking stick within a few weeks of her discharge from hospital on 21 April 1988, but there was also documentary evidence which showed that she was not using the stick all the time. Moreover her use of the stick during this early period was explicable for physical reasons because she had not yet recovered from the consequences of the fall. None of the psychiatric experts who gave evidence said that her use of a stick at this time indicated a psychiatric disorder, or the start of a psychiatric disorder.

22    The Judge did not appear to have realised that his finding that her psychiatric disorder commenced “at the latest” on or shortly after her husband’s death, tended to undermine his finding that it was caused by her fall some eight months earlier. He also treated her back pain as causative without, it seems, considering that after the first 12 months or so this was due to her degenerative condition and not the fall.

23    The Judge did not refer at all to the objective evidence in the records from Blacktown and Westmead Hospitals which documented the plaintiff ’s condition and presentation on a number of occasions after her fall. Her twelfth admission to Blacktown Hospital occurred on 15 November 1988 (blue 2/387) for a panendoscopy, a procedure undertaken for bladder conditions. The principal diagnoses were “reflux” and oesophagitis, with duodenitis also said to be present (387). Her history check recorded “tension headaches”, but no reference to back or leg pain, or the use of a stick. She is described as a “well looking lady” (390) and her condition on admission was described as “walked in ward has a limp” (391).

24    Her thirteenth admission on 2 May 1989 was for investigations of her bladder and colon (2/380). Her admission form recorded that her principal diagnosis was dysphagia and pr bleeding and that she had minor pre-pyloric erosions (377). Her medical history sheet recorded under other illnesses and further comments: “severe reactive depression, suicidal ideation, sleep disturbance, weight loss/anorexia, indignation towards medical/doctors, no counselling following husband’s death” (381). The record of her examination on admission included the medical officer’s statement: “very emotional” (382). There was no reference to any complaint of back or leg pain or to her use of a stick. She was discharged the same day.

25    Her next admission to that Hospital was on 7 March 1991 and she remained there until 19 March. The plaintiff reported at casualty complaining of shortness of breath and pain in her left chest radiating into her left arm (335). There is an ambiguous reference in the clinical notes (338) to: “right leg pain - calf/hip on walking, laminectomy in 1985 for spinal canal stenosis until slipping 3 years ago”. This may simply be part of her medical history. On the following page (336) there is a statement: “aches and pains over the past 10 weeks - hands/feet/ankles/knees/elbows/shoulders no joint swelling”. On the same page there appears: “appetite poor for the past two years since the death of her husband”, and there is a reference later to the loss of two stone in weight over the past two years (339).

26    Her admission form recorded the principal diagnosis as idiopathic pleuritic chest pain and the other conditions present were said to be grief reaction to death of husband and depression (2/348). Her management was stated to involve the administration of antibiotics for 11 days and “grief counselling by psychiatrist and to book appointment with grief counsellor on discharge” (345). On 13 March she was referred for a report from a psychiatric consultant. The clinical notes of the referring doctor stated: “60 year old female being investigated for causes of progressive bilateral lung lesion in lower zone. ? Interstitial pneumonitis secondary complications and chest pain. Patient also spent 2 years complaining of early morning wakening with guilt feeling re husband’s death with cancer. Could you please assess psychiatric component of pain and reason for refusal of morphine” (344).

27    The consultant wrote:

“Mrs Shorey gives a history consistent with a complicated or unresolved bereavement. The circumstances of her husband’s death is that it appears he received too much morphine, administered by her, has left her with tremendous guilt. Added to this there was apparent family disharmony related to money shortly after his death. In the past she has coped poorly with death having to see a psychiatrist after the death of a child. However I do not think that her pain is secondary to issues revolving around her husband’s cancer. Continued analgesia as tolerated should be continued … I will review for grief counselling” (344).

28    The pain he referred to was her pleuritic chest pain noted by the referring doctor who did not mention pain in her low back or right leg. Entries for 12, 18, and 19 March referred to her use of a walking stick (330, 369, 370).

29    On 26 March the plaintiff collapsed in the foyer of the RSL Club at Seven Hills and was admitted by ambulance to Blacktown Hospital (2/296). The ambulance notes record that she attended her mother’s burial the day before and “? emotional upset”. The notes on her admission to the hospital refer to her mother’s funeral the day before and to her grief reaction following her husband’s death (295). She was discharged the same day. Her personal effects which were signed for did not include a walking stick (300), and there was no other reference in the notes for that day to the presence of a stick or her use of it.

30    Her next admission was on 31 May 1991 for another panendoscopy (2/289). She was discharged the same day. Her care plan records her condition on admission as “alert ambulant lady with glasses” (291) and the nursing notes record that at 1315 hours she had recovered well and was “ambulating well” (290). The patient admission form for this admission (2/354) records her principal diagnosis as: “gastric ulcer” and the only other condition noted was: “interstitial lung disease”. There was no reference to back or leg pain, to her use of a walking stick, or her difficulties in walking.

31    The plaintiff ’s next admission was for another panendoscopy on 23 August 1991 and she was discharged the same day (2/283). Her condition on admission was stated to be “alert and ambulant” (276). The nursing notes record that she recovered well and was ambulating. There was no reference to a stick. They also record: “Patient insisted on driving home and was advised not to” (275).

32    On 25 September Dr B O’Brien of the Hospital’s dental clinic arranged for her to be admitted for the removal of all her teeth. He recorded a history of “back problems … (illegible) awaiting surgery - pinched nerve - impaired use of right leg” (264). She was admitted for this procedure on 3 October and discharged the same day. The nursing care plan recorded: “Arrived to the ward with walking stick” (263).

33    She was again admitted to Blacktown Hospital on 5 April 1992 via the casualty section complaining of severe low back pain. She remained there for three weeks under the care of Dr Irani and was treated with bed rest and physiotherapy (1/44). Following her discharge he reviewed her on 18 May, 1 June and 17 July and on the latter occasion noted that she was walking with a frame. In a report to her solicitors of 25 August 1992 he said that he was unable to give a correlation between the fall and her presentation to the Hospital (1/45). The actual hospital records for this admission are not in evidence.

34    The plaintiff ’s next hospital admission in the evidence was to Westmead on 16 September 1993. She was admitted from emergency with complaints of back pain (1/48), and was discharged on 24 September. The history notes from the emergency staff (1/47) record that she had been in a wheelchair for the last 12 months and was unable to shower or make tea. Her history recorded by the medical officer stated: “Started yesterday could not get out of bed” (1/50). The nursing notes for 17 September record: “Husband passed away four years ago teary and hugging to his beret in bed” (1/54).

35    The social worker’s notes for 23 September record:

“Patient talked readily about her isolated situation. She lost her physical mobility to a large extent 18 months ago and is now wheelchair bound. She attends to all self care activities under the supervision of her daughter” (1/56).

36    She was again admitted to Westmead Hospital for back pain on 3 October 1993 being discharged on 21 October (1/59). The admitting doctor noted that she walked with two sticks and her right leg dragged (63).

37    The progress of the plaintiff ’s condition can also be charted through the medical reports and hospital records. She was not using a stick when she saw Dr Sengupta on 13 May 1988 but was using one on 20 June (par 6). The records of the Blacktown Hospital for her admission on 15 November 1988 contained no reference to any back or leg pain or to the use of a stick, but they do mention her limp (par 23). The records for her admission to that Hospital on 2 May 1989 refer to a litany of problems, but there was no reference to back or leg pain, a limp, or to the use of a stick (par 24).

38    She was seen by Dr Smith on 20 April 1990 (1/177) who recorded a history of “not much improvement since 1988” and that she had been unable to walk from time to time, but his report did not refer to a limp, or to her use of a stick. When she was seen by Dr Sinclair on 28 June that year she was using a stick in her right hand (1/230). She was using such a stick when she saw Dr Walsh on 24 January 1991 (1/34), and when she was in Blacktown Hospital in March of that year (par 28), but not apparently when she was at the Hospital on 26 March (par 29), 31 May (par 30), or 23 August (par 31). When she saw Dr Sinclair on 10 December 1991 she was using a stick in her right hand and a quadriped in her left (2/234). On 13 January 1992 when she saw Dr Smith again she was using two sticks (1/179) and when she saw Dr Shand on 23 March she was using a stick in her right hand and a quadriped in her left, but was still driving a car (1/188).

39    The evidence about the circumstances of her husband’s death is not altogether clear. He had been in hospital for about two weeks. The death certificate states that the immediate cause of death was respiratory failure (1/164). He had taken some oral morphine shortly before he died, and Dr Yeo confirmed that an overdose of morphine could cause respiratory failure (black 1/184).

40    The plaintiff told the psychiatrist at Blacktown Hospital that her husband had received too much morphine administered by her (black 1/94 para 27) and she had been left with “tremendous guilt” (black 57). A nursing sister had handed her the morphine tablet or tablets to give to her husband and she came to believe that this dose was associated with his death (99). She blamed herself for not questioning the nursing sister who gave her the morphine (99), because she realised two days later that this was an increased dose (100). She did not learn until she saw a Dr Ruppin in 1991 that his dose of morphine had been increased that day from every four hours to every hour and that the nursing sister should never have asked her to give the dose to her husband (137).

41    The plaintiff ’s daughter, Tracey, gave this evidence about her mother’s involvement in her husband’s death:

“Q. Did she say anything to you about being upset about the manner of his death, that is, in respect of her being asked to provide the morphine by a nurse?
A. I couldn’t say too much about that time. I know Mum did have something to do with some of the medication, but she was very upset and I didn’t get much out of her. I’m sorry, I didn’t understand much of what she said, all I know was she was upset” (196).
“As I answered before I don’t know too much about that situation. She mentioned to me once about it. She was very upset and I didn’t quite get the story straight. It was something to do with medication but I couldn’t tell you honestly what it was, I’m sorry” (204).

42    The plaintiff ’s symptoms of depression, suicidal ideation, sleep disturbance, indignation towards doctors etc, on admission to Blacktown Hospital on 2 May 1989 (para 24), four months after her husband’s death, contrast markedly with her symptoms as reported for her admission on 15 November 1988, about 6 weeks before his death (para 23).

43    The records for her admission on 7 March 1991, more than two years after his death, refer to her grief reaction, her guilt feelings, depression, loss of appetite and weight loss (para 26). The consultant psychiatrist found that at that time she had a complicated or unresolved bereavement (para 27). Her grief reaction was mentioned again in the records for her admission on 26 March 1991 (para 29).

44    She was admitted to Westmead Hospital on 16 September 1993, four and a half years after her husband’s death, and the nursing notes for the following day recorded: “Husband passed away 4 years ago teary and hugging to his beret in bed” (34). The plaintiff said that she continued to carry her husband’s beret around with her until 1994 or 1995 (black 1/73). Her daughter was not aware of this but said that her mother always takes her husband’s photograph everywhere (1/211).

45    The trial Judge said that: “the plaintiff felt some guilt associated with his death but she said she got over that after about 6 months” (red 2/297). He also referred to her evidence that she had been depressed since the death of her husband but not all the time (300). He also referred to her unresolved psychological conflict which he found involved “various aspects of the aftermath of her husband’s death … mainly because of the plaintiff ’s fear of being thrown out of the family home” (308).

46    When the Judge referred to the plaintiff ’s evidence that she got over her husband’s death after about six months, he may not have intended to find that she had actually recovered by that time, but if he did such a finding could not be supported. The evidence in the hospital records clearly establishes that she had unresolved grief while she was at Westmead in September 1993, and unresolved guilt while at Blacktown in March 1991. Other evidence, including her own evidence that she continued to carry her husband’s beret around with her, shows that her grief reaction continued at least until 1994 or 1995.

47    The Judge based his causation finding on the evidence of Drs Yeo, Phillips and Dyball (para 17). His finding that there was no physiological basis for the plaintiff ’s paraplegia, but that she was not malingering, involved the rejection of any medical evidence which supported contrary views. His finding that the plaintiff had a conversion disorder involved the rejection of any evidence which suggested that some other psychiatric condition was responsible for her problems.

48    Dr Yeo is a distinguished orthopaedic specialist. He believed that the plaintiff was genuine and the Judge accepted that view. The doctor thought that the plaintiff had:

“…a serious psychiatric problem with very little insight, if any, into the severity of her disability in so far as the cause of it and, therefore, she was in need of help and that help would come more from a psychiatrist than from somebody like myself who was involved mainly in physical medicine and rehabilitation”.

(black 1/170)

49    He said that “in a psychosomatic case of this nature there is usually a physical trigger of some sort, physical in the sense of some traumatic injury of some degree” (171). His opinion, which was accepted by the trial Judge was:

“The three major psycho-social episodes [death of husband, family disputation, and death of brother without notice of his funeral] that you describe could well have sensitised this lady to becoming more profoundly disabled than she would have been had those particular items not occurred, but may have occurred had other particularly emotional crises occurred, different to the ones you described. So that here we have, I believe, a very reasonable scenario of a physical disability and coupled with the complexity of emotional crises which are understandable and which led this lady to present as profoundly paraplegic which we know is not from an organic cause. In my opinion the main trigger point for this present level of serious disability is the fall that she had” (172).

50    Dr Yeo saw the plaintiff once, for medico-legal purposes, on 29 April 1999 (blue 1/161) and concluded in his report that “Mrs Shorey’s present functional loss is mainly associated with a psychological disorder as described by Dr Jonathan Phillips in his report” (163). Dr Yeo gave the following evidence in answer to a question from the Judge:

“Q: If I might ask you … you came to the conclusion that she was not malingering. Was that because you deferred to the opinion that Dr John Phillips in his report dated 6 February 1998 or was it, either in whole or in part, because you came to this conclusion yourself based on your own assessment?
A: Your Honour it was in part from my own assessment but I required Dr Phillips’ opinion to consolidate that opinion”.

51    Dr Yeo was called to give oral evidence before Dr Phillips. Dr Phillips saw the plaintiff once for medico-legal purposes on 6 February 1998. His report of the same date (blue 1/150) was based on a seriously incomplete history. The plaintiff ’s condition following her fall was not nearly as bad as she reported and as Dr Phillips recorded in the last two paragraphs on p 150. Her duodenal ulcer pre-dates her fall and the Judge recorded that the plaintiff had conceded that her ulcer was not caused by the fall (red 2/299). The plaintiff ’s depression, suicidal ideation, crying and sleeplessness (151) did follow her fall chronologically, but more importantly they followed the death of her husband. It was not true that she had only grieved for her husband in a painful manner for several months and had got on top of things after about six months (152). Dr Phillips concluded that the plaintiff had a conversion disorder and said:

“The fall of 2 April 1988 is central to understanding Mrs Shorey’s current symptomatology. It was that traumatic incident which set in train the events (physical, psychological) which have led to the patient’s disability. I do not share the view of Dr Edwards or Dr Dent who believe grief relating to her husband has been of aetiological [causative] importance. I am satisfied that she had grieved her husband in an appropriate manner. I suggested that matter can be set aside” (156).

52    In cross-examination Dr Phillips said that “The central understanding of conversion disorder is based on failure to resolve conflict” (224). He agreed that one reason why he had put out of his mind the significance of the husband’s death was the history he had recorded on p 3 of his report that the plaintiff had “got on top of things” about 6 months after her husband’s death (blue 1/152). She had told him in her history that she did not believe that the death of her husband remained a major problem for her (225). He said that he had not learnt until the night before he was giving evidence of her guilt at having administered too much morphine to her husband, of her presentation in April 1991 at Blacktown Hospital in a depressed state feeling that the medical community had let her down and she had not been provided with sufficient grief counselling, that she was hyperventilating at the time and was presenting with obvious grief and guilt about her husband’s death (226). He then said:

“A If the chronology is correct and in fact she was expressing guilt elsewhere two years after the death of her husband, then obviously I have to reconsider the stressor, the death of her husband.
Q The death of the husband in the circumstances I have just mentioned to you is capable of causing an unresolved psychological conflict, isn’t it?
A That is always possible.
Q Indeed just dealing with the matters I have put to you, that is the March 1991 account from Blacktown Hospital and then the April 1991 account, that looks exactly as though that has happened, doesn’t it?
A Well, it’s certainly possible.
Q It is exactly the sort of unresolved psychological conflict which can bring on a conversion disorder isn’t it?
A Well, it is possible yes.
Q It is often difficult, isn’t it, determining the aetiology of a conversion disorder?
A Extremely difficult, there is no doubt about that because not only are you looking back in time but you are looking at a complex process”. (227)

53    He said that her feelings of guilt at the death of her husband was “a potentially significant stressor” (230), and that the further one gets from the 1988 accident the more difficult it is to make the causal link with the conversion disorder (230). He said that it was important in considering causation to determine when the plaintiff started “presenting in an inorganic fashion” (230), and it would be reasonable to think that this had not occurred by June 1988 when she saw Dr Sengupta (231).

54    The cross-examiner then put to Dr Phillips the plaintiff ’s presentation to Dr Sinclair on 28 June 1990 (1/230) which Dr Phillips accepted as a bizarre presentation (231-2). He then gave the following evidence:

“Q Now given the change in presentation between June 1988 [and] …. June 1990 … you would have to consider, would you not, that the significant event which occurred in the intervening period may have been the death of her husband, her guilt feelings associated with that, and the threat of being displaced from the home?
A Yes, one would have to consider that.
…
Q I appreciate that these were matters which were not drawn to your attention until last night but they are very significant matters aren’t they?
A I don’t dispute that at all … this is a most difficult case”.

(232)

55    The cross-examination by counsel for the present appellant concluded with the following:

“Q What you would really prefer to do doctor is to see this lady again, armed with all this additional information which you didn’t have until last night and indeed, some of which I don’t think you had until I put it to you, is that right?
A Yes.
Q Sit down and work through all that with her and it would only be at that point of time, wouldn’t it, that you would be able to say with any confidence (1) what condition this lady has and (2) what the aetiology of that condition is?
A Well you are perhaps even a little bit more optimistic than I would be. I certainly agree that armed with additional information to go back and carry out a further examination would be very useful. Whether I could achieve those two end points I’m not quite sure but I would probably be in a stronger position than I am now.
Q So that even armed with that additional information it still might not be possible to work out exactly what her diagnosis is and what the aetiology of the condition may be?
A Yes …”. (232/3)

56    The re-examination of Dr Phillips failed to come to grips with this evidence or with the additional history that Dr Phillips had received the night before and during his cross-examination.

57    The causation of the plaintiff ’s conversion disorder was a matter within Dr Phillips’ specialty and outside that of Dr Yeo. After the cross-examination of Dr Phillips, the Judge could no longer act on the evidence of Dr Yeo on the causation question (para 17) because Dr Yeo had relied heavily on the opinion expressed by Dr Phillips in his original report (para 50). Nor could the Judge act on Dr Phillips’ opinion, given in his evidence-in-chief, that the fall was “the sentinel event in the causal chain” (para 17, black 2/223) because he had withdrawn that opinion during cross-examination (para 55).

58    Dr Phillips gave his evidence on Monday 7 June 1999. The defendants closed their cases after lunch on Thursday 10 June. Dr Phillips was not then called in reply to give evidence based on a further consultation with the plaintiff, “possibly for good reason”. Compare Jones v Bartlett [2000] 75 ALJR 1 at 10 per Gleeson CJ.

59    The passage from Dr Dyball’s evidence quoted by the Judge (para 17) was taken out of context and that doctor’s evidence, taken as a whole, does not support the Judge’s finding. The doctor was of the view that the plaintiff had gone through a prolonged grief reaction over the death of her husband which was still present when she saw Dr Edwards in October 1995 (blue 1/93, 95). Dr Dyball thought that this was evidence of an ongoing unresolved conflict over the death of her husband (black 2/370). He said that an unresolved psychological conflict was an essential nucleus for a conversion reaction (370, 371).

60    When asked whether the fall in 1988 was a cause of the conversion disorder he said: “I don’t think so. It may have provided the focus for the site of the possible conversion disorder … but not the unresolved psychological complex” (371). He said that although the patient may attribute her condition to the fall it was not the cause (371-2). The psychological causation of the disorder was her need to be an invalid (372). He gave this evidence in cross-examination:

“Q … is it fair to say that the presence of on-going back pain, to whatever extent it exists physically, provides a focus and a trigger for such other psychological problems as are imposed on top of that?

A A focus, yes. A trigger I don’t think so” (380).

61    Dr Dyball added that “without the hypothesis of the psychological complex it wouldn’t have happened at all” (381). He continued:

“You’ve got to have the psychological complex to create the potential for the conversion disorder. It’s my theory, if you like, my speculation, that that occurred with the death of her husband around which time her orthopaedic complaints are, if anything, beginning to resolve. My view is, … that having the back trouble became the focus potentially for any unresolved psychological problems. Not the cause of what may happen but the focussing on the area and symptomatology” (381).

62    He gave this further evidence in cross-examination:

“Q She was a vulnerable person psychologically waiting for an event to trigger a problem?
A No, you can’t quite say that because she’s gone through ’86 in the operation so she can’t have been that vulnerable. Something new has got to have happened”. (382)

63    Dr Yeo rises no higher than Dr Phillips, Dr Phillips withdrew his opinion in cross-examination, and Dr Dyball’s opinion was that the fall was not causative.

64    The Judge found that a conversion disorder is based on an unresolved psychological conflict and this finding was supported by the evidence of Dr Phillips (224), Dr Dyball (370), and Dr Rolden (black 2/299). The obvious candidate for unresolved psychological conflict was, as the Judge indeed found (red 2/308), the death of her husband, how it occurred, her role in it and its aftermath in family conflict. This conclusion is supported by the marked contrast between the plaintiff ’s normal presentation at Blacktown Hospital in November 1988, her distressed presentation at that Hospital in May 1989, and her bizarre presentation recorded by Dr Smith in April 1990 (blue 1/177), and by Dr Sinclair in June 1990 (1/228).

65    The Judge’s conclusion that a causal link was established between the fall and the conversion disorder was not based on his findings as to credit. It was an inference he drew from his primary findings with the benefit of the expert evidence he referred to. As such it is open to review on a re-hearing in accordance with the principles considered in Warren v Coombs (1979) 142 CLR 531.

66    When the Judge’s findings, that the plaintiff was suffering from a conversion disorder, that this was caused by unresolved psychological conflict, and in her case this involved various aspects of the aftermath of her husband’s death, are read with the whole of the evidence of Drs Yeo, Phillips, and Dyball, the proper conclusion may well be a positive finding that the fall in 1988 was not a cause of the plaintiff ’s conversion disorder.

67    However, it is not necessary for this Court to go that far and it will be sufficient for this Court to decide on those other findings and that medical evidence that the plaintiff did not discharge the onus of proving a causal link between the fall and her conversion disorder. Compare Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 HL. The appeal therefore succeeds and the judgment entered by the trial Judge must be set aside.

68    As a result of her fall the plaintiff suffered soft tissue injuries to her back. Dr Sengupta thought these involved a temporary aggravation to her degenerative condition which would resolve within 12 months. The appellant was not responsible for the plaintiff ’s pre-existing degenerative condition, or for its progress, apart from the temporary aggravation. The plaintiff is entitled to damages for this temporary aggravation of her back condition.

69    The Court has been invited to reassess the plaintiff ’s damages and we can do so since, on our findings, none of the Judge’s credit based findings are being disturbed. The appellant has invited the Court to re-assess the plaintiff ’s damages at $68,911.05 (2/328) and I would adopt this figure since, on a re-assessment, the plaintiff ’s damages could not exceed this amount. Counsel for the parties said that they wished to be heard on the question of costs and they should be given this opportunity. I would therefore make the following orders:

(1) Appeal allowed;

(2) Judgment for the plaintiff for $555,212.55 and costs set aside.

(3) In lieu thereof substitute a judgment for the plaintiff for $68,911.05 with effect from 29 February 2000;

(4) By consent order that the defendant pay the plaintiff ’s costs of the trial up to 11 am on 9/6/99, thereafter plaintiff to pay defendant’s costs. Appeal allowed with costs but respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Cross-appeal dismissed with costs.

70    POWELL JA: I agree with Handley JA.

71    DAVIES AJA: The principal issue in this appeal is whether the accident which Mrs Rose Shorey, the first respondent, suffered, when she fell on wet tiles at a shopping centre in Blacktown on 2 April 1988, was causative of the bizarre psychological disorder which she later developed.

72    As Handley JA has pointed out, there are no sufficient grounds to disturb the finding of the trial Judge that the first respondent’s conduct and complaints did not result from malingering but, rather, represented a psychological disorder which has been described as a conversion disorder. A conversion disorder is a disorder of the type which, in a mild case, used to be called functional overlay or hysterical reaction, where an injured person’s mind informs the person that he or she has pain and disabilities which, save for the mental disorder, would not exist.

73    Senior counsel for the appellant has submitted that it should not be found, as a matter of probability, that Mrs Shorey’s problems resulted from the accident in the shopping centre. Counsel submitted that the probable or an equally probable cause of Mrs Shorey’s disorder was the death of her husband in January 1989 and a subsequent dispute which she had with one of her daughters as to whether she, Mrs Shorey, was entitled to remain living in the matrimonial home.

74    Counsel referred the Court to medical evidence including that of Dr F Roldan, a psychologist, who considered that Mrs Shorey’s disorder developed as a result of feelings of grief and guilt following the death of her husband in January 1989. Dr Roldan said in his report dated 30 June 1997:-

“… Ms Shorey is likely to engage in manipulation of facts and events in order to seek a simplistic explanation for her difficulties and one which does not involve self-examination or the possibility of coming to terms with the psychological issues which may be driving her behaviour. Within this context, she is likely to have selected the accident in question as a convenient and non ego-threatening way to attribute her difficulties, seek attention from others and relinquish responsibility.”

75    Dr Jonathan Phillips, a consultant psychiatrist, thought that the accident was a material cause of Mrs Shorey’s problems. In his report dated 6 February 1998, Dr Phillips said:-

“Mrs Shorey has a pain syndrome associated with a psychological disorder and a general medical condition DSM IV 307.89. The genesis of her pain disorder is as follows. She had pre-existing orthopaedic pathology affecting the lower parts of her spine. The fall of 2 April 1988 significantly exacerbated the problem. She subsequently developed a major depressive disorder DSM IV 296.22 (single episode, moderate severity, non psychotic, chronic), this leading to a reduction in the threshold to perception of pain. A vicious cycle was thus established with pain leading to depression and depression to pain. She is now focused on her disability and leading the life of an invalid.
…
The fall of 2 April 1988 is central to understanding Mrs Shorey’s current symptomatology. It was that traumatic incident which set in train the events (physical, psychological) which have led to the patient’s disability.”

76    In his evidence in chief, Dr Phillips said:-

“A. Well, I would view the accident of 1988 as the sentinel event in the causal chain. She had made a relatively good recovery, I understand, from previous surgery. It was after that accident that her symptoms began to be manifest. I accept that there were other important stressors along the way which you have touched upon but the accident, in my view, was the psychological trauma of principal importance.”

77    In re-examination, Dr Phillips said:-

“… Yes, it is entirely reasonable to see the fall in the shopping centre in 1988 as the event which was the beginning of the downhill course, if you like …
… I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically.”

78    Counsel submitted that Dr Phillips resiled from this opinion as shown in the passage in his cross-examination which is set out in the reasons of Handley JA. However, I do not take that passage as doing more than conceding the possibility that Dr Phillips’ view may be incorrect. For myself, I find Dr Phillips’ reports and oral evidence to be impressive. The consistent thrust of his evidence was that the fall on 2 April 1988 played a significant role in the development of Mrs Shorey’s condition.

79    Dr Phillips’ view was supported by that of Associate Professor J D Yeo, who for many years had been director of the Spinal Unit at Royal North Shore Hospital and of the Spinal Unit at the Royal Rehabilitation Centre at Ryde. Assoc Prof Yeo said, in his oral evidence:-

“In this lady’s case my interpretation of her problems is that she had an original injury from which she appears to have made a very satisfactory recovery from the surgery but she would have had scar tissue in and around the spine where that repair was done and the potential to have a trigger point there. For a period of at least 18 months she claims she was symptom free prior to the fall which occurred in April 1988 and from that point she obviously had an exacerbation of back pain and leg pain which, as you describe, was disabling but certainly had not reached the level of disability which subsequently occurred with her paraplegia. The three main psycho-social episodes that you describe could well have sensitized this lady to becoming more profoundly disabled than she would have been had those particular items not occurred but may have occurred had other particularly emotional crises occurred, different to the ones you describe. So that here we have, I believe, a very reasonable scenario of a physical disability and coupled with the complexity of emotional crises which are understandable and which led this lady to present as profoundly paraplegic which we know is not from an organic cause. In my opinion the … main trigger point for this present level of serious disability is the fall that she had on 2 of the fourth 1988.”

80    Both Dr Phillips and Assoc Prof Yeo considered that a physical injury was a common trigger to the development of functional or hysterical reactions of the kind which Mrs Shorey developed.

81    The trial Judge accepted the view propounded by Dr Phillips and Assoc Prof Yeo that Mrs Shorey’s conversion disorder was caused by a variety of factors including the fall in 1988. The trial Judge rejected the view, expressed in some of the medical evidence, that it required a major event, such as grief or guilt, to cause a conversion disorder. I see no error in these findings. They were based particularly upon Dr Phillips’ evidence. His reports and his evidence are, to my mind, persuasive.

82    I turn to consider whether the factual evidence adduced before the trial Judge supported a finding that the 1988 accident was a cause of Mrs Shorey’s psychological disorder.

83    From 1978 onwards, Mrs Shorey suffered from a deteriorating back. In April 1986, Dr A C Sengupta operated for chronic low back pain. Mrs Shorey had decompression and laminectomy of the L4-5 and L5/S1 levels because of lumbar canal stenosis, including facet joint fixation with compression screw at the L5/S1 level. At the trial, Mrs Shorey gave evidence, which the trial Judge accepted, that she had been pain-free for about eighteen months prior to the accident in 1988. This evidence was supported by that of Mrs Shorey’s daughter, Tracey. Dr Sengupta’s reports confirm this point. His report dated 14 August 1986 stated that, “Overall, she has made a satisfactory recovery and has no pain in her leg or any neurological symptoms …”. On 31 October 1988, Dr Sengupta reported, of Mrs Shorey’s recovery in 1986, “She made an uneventful recovery from the above operation and was progressing satisfactorily”.

84    The results of the subject accident provide a sharp contrast. Mrs Shorey aggravated her back condition when she fell on 2 April 1988. She was admitted to Blacktown Hospital on the day of the fall and remained there until 21 April 1988. During that time, Mrs Shorey had an operation for the removal of recurrent bilateral plantar warts. However, it would seem that the period of stay in hospital was governed by her back condition. It was noted that, on arrival, Mrs Shorey was very distressed and appeared to be in a lot of pain. It was noted that she had severe tenderness of the lower back, that it was impossible to examine her back and that Mrs Shorey was given Pethidine. She was complaining of acute pain across the lumbar area and in the right hip and leg. Mrs Shorey came under the care of Dr Sengupta. Amongst other treatment, she was given manual traction of both legs. On 8 April 1988, it was noted that Mrs Shorey “may now ambulate gently with physio assistance”. On 11 April 1988, it was noted that Mrs Shorey held her right foot in an extremely inverted position. Mrs Shorey assured the physiotherapist that this had been the situation for a few years. However, this appears to have been the first occasion on which such a habit, if there was one, was noted. Overall, Mrs Shorey’s recovery was very slow. The nurses recorded difficulty in getting her to walk. On 21 April 1988, it was noted that Mrs Shorey was discharged with her husband via a wheelchair.

85    Dr Sengupta reviewed Mrs Shorey on 13 May 1988. He later reported that clinical examination on that day revealed “fairly marked tenderness in the lower lumbar region with restricted movement in all directions, but no obvious neurological deficit”. He advised Mrs Shorey to continue with physiotherapy.

86    At some stage, Mrs Shorey commenced using a walking stick. Tracey gave evidence that Mrs Shorey obtained the stick from her son-in-law shortly after she came out of hospital, because she was finding it difficult to walk.

87    Dr Sengupta reviewed Mrs Shorey again on 20 June 1988. At this consultation, she complained of considerable pain and was walking with a stick, two factors which may have suggested regression rather than improvement. Dr Sengupta referred Mrs Shorey to a private physiotherapist to continue with that treatment. Dr Sengupta was of the view that Mrs Shorey did not suffer from any major problem with regard to her lumbar spine, apart from aggravating her long-standing facet joint arthropathy on a temporary basis. He expected that the aggravation would only be temporary.

88    An account from Neena Bajaj, a physiotherapist, shows that Mrs Shorey had eleven physiotherapy treatments from 24 June 1988 to 3 August 1988, the accounts for which were still unpaid in March 1996.

89    Dr Sengupta expected to see Mrs Shorey again but she did not return. Counsel for the appellant submitted that this indicated that, during the latter half of 1988, Mrs Shorey’s problems cleared up and did not reactivate until after her husband’s death in January 1989. However, insofar as there is evidence about the matter, it seems contrary to the submission. A possible, even probable, explanation as to why Mrs Shorey did not return to Dr Sengupta may be that she was dissatisfied with his diagnosis and advice. If she was suffering from functional overlay, as seems to me to be probable having regard to subsequent developments, then it is likely that she found Dr Sengupta’s advice unpalatable.

90    Tracey Shorey gave evidence that, when her mother came home from hospital, she complained of pain in the back, that, “She would limp and shuffle” and that, “She would have to hold on to furniture to steady herself”. She started using a walking stick. In general, she was in pain and limping badly. It was not put to Tracey, in cross-examination, as indeed it was not put to Mrs Shorey, that in the latter half of 1988, Mrs Shorey became free of back troubles. Indeed, it was specifically put to Tracey, in cross-examination, that it would be true to say that, subsequent to the accident, the pain in her mother’s lower back and right leg appeared to become increasingly troublesome. Tracey misunderstood this particular question but, when it was put again, she said that the pain was increasingly troublesome from the day of the accident. Tracey said that her mother stopped doing many of the household chores, such as vacuuming, after the accident and that other members of the family took over those chores. Mrs Shorey hobbled around. Tracey said that, as her father became increasingly ill, and particularly whilst he was in hospital prior to his death, Mrs Shorey did not seem to give as much thought to her own self and, although one could see that she was in pain, she did whatever she could to look after her husband. Tracey said that Mrs Shorey was regressing all the way through. Later in cross-examination, she said that her mother had been bad from the time she came out of the hospital and, thereafter, she got steadily worse.

91    Records of the Blacktown Hospital show that Mrs Shorey attended on 15 September 1988. She was complaining that she felt dizzy and nauseous. The notes are difficult to read. They record that there had been a problem over the last 5-6 weeks related to her husband’s terminal illness, that Mrs Shorey was unable to sleep well and that she had visited her husband that day and felt distressed. There are other notes of pain and distress.

92    On 15 November 1988, Mrs Shorey was admitted to Blacktown Hospital for a panendoscopy. It was noted that she had vomited whilst visiting her husband in hospital and was complaining of a tension headache and demonstrating mild distress. It was also noted that she walked in the ward and had a limp. There was no mention of a walking stick.

93    These events seem to me to show that, during 1988, Mrs Shorey developed a psychosomatic condition. Her recovery in hospital from the fall on 2 April 1988 was slow. Thereafter, she did not recover as Dr Sengupta expected she would. Evidence before the Court suggests that Dr Sengupta’s view was correct, from an organic point of view. However, Mrs Shorey did not recover. She continued to feel pain. In June 1988, when she saw Dr Sengupta, she was complaining of considerable pain and was walking with a stick. Other members of her family took over the household chores. She attended the Blacktown Hospital in September and November 1988 with symptoms consistent with a psychosomatic problem.

94    I would accept Dr Phillips’ evidence that there were several factors which played a particular role in the development of Mrs Shorey’s psychosomatic condition. One was the fall in April 1988 and the pain which she suffered. Another was the distress that she felt as a result of her husband’s terminal illness and later his death. In Dr Phillips’ view, and also in Assoc Prof Yeo’s view, factors such as pain and upset played a part, feeding upon and enhancing each other.

95    I need not describe the events surrounding Mr Shorey’s death in January 1989 or Mrs Shorey’s response to his death and to those events. It is clear that these matters played a contributing role in the development of Mrs Shorey’s psychological disorder. However, in the view of Dr Phillips and Assoc Prof Yeo, which I accept, the pain which Mrs Shorey suffered following the fall in April 1988 also contributed. Mrs Shorey’s reaction to her husband’s death was excessive, but, so also was her reaction to the pain which she suffered as a result of the fall in April 1988. The two reactions were a part of one composite and rather bizarre disorder.

96    Dr J Bannister examined Mrs Shorey on 14 April 1989. He expressed the view, which is contrary to most of the medical evidence, that she required further surgery. Less than three weeks later, on 2 May 1989, Mrs Shorey attended Blacktown Hospital presenting with severe reactive depression and suicidal thoughts. Reference was made to her husband’s death, not to her pain. Nevertheless, the proximity of the dates suggests a coincidence between the pain and the upset.

97    Thereafter, Mrs Shorey’s condition deteriorated, with her presentation becoming increasingly bizarre. At some stage, Mrs Shorey’s condition developed into a full-blown psychiatric disorder, a conversion disorder.

98    On the whole of the evidence, I would conclude, as did the trial Judge, that there was a gradual deterioration in Mrs Shorey’s condition from the time of the accident in April 1988. I am satisfied that Mrs Shorey did not recover from the fall in 1988 as she should have done and that, by the second half of 1988, there were functional elements in her presentation. At the trial, the cross-examination was conducted carefully and with vigour. Yet, on this particular aspect of recovery during 1988, the only relevant question that was put to Mrs Shorey was this:-

“Q. You were mobile by this time, weren’t you? You were able to walk?
A. I was walking, I believe, yes.”

99    The crux of the cross-examination that was put to Tracey Shorey was as follows:-

“JONES: Q. Listen to this and I’ll ask you something about it. Mrs Shorey said that her husband died in January 1989. First of all that’s correct, isn’t it?
A. That’s right.
Q. From a malignancy, I think he had cancer, didn’t he?
A. Cancer.
Q. And subsequent to this, pain in the lower back and right leg became increasingly troublesome. That’s in fact what happened isn’t it?
A. But it wasn’t since my father’s death it became increasingly - it seemed to be a continual thing. I must admit when my father was very, very ill and she was taking care of him she seemed to put herself back. She seemed to not concern herself with herself so much.
Q. She seemed like to be able to [do] more than she would otherwise be able to do?
A. She was still hobbling around. What I am saying is she didn’t seem to take too much thought of her own self. I have seen her do things and I can see that she was in pain but she would do them, just by the look on her face. I assume she was doing it for the love of her husband.
Q. It was subsequent to your father’s death that she appeared to regress?
A. She was regressing all the way through?”

100    Thus, at the trial, counsel passed very lightly over the events of 1988 and did not confront either Mrs Shorey or her daughter, Tracey, with the specific proposition that Mrs Shorey recovered during 1988 from the effects of the 1988 accident.

101    The trial Judge found:-

“… it seems to me that the plaintiff’s slide into her now full-blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 when she began use of a walking stick and her husband became very ill and was diagnosed with cancer, or at the latest on or shortly after his death on 1 January 1989. Looked at in that context it seems to me that the psychological and physical factors then become intertwined. The psychological factors would not have manifested as they did without the back pain. While it may be true to say that had she not had back pain the plaintiff’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point. She did have back pain. Just as frequently psychological complications occur in the recovery from physical injury, so this case is in principle no different. I find the plaintiff’s conversion disorder caused by a variety of factors, including the fall in 1988 in respect of which the plaintiff sues.”

102    I see no error in his Honour’s conclusion. It appears to me to be well based upon the medical opinions which were before him, particularly the opinions of Dr Phillips and Assoc Prof Yeo, and well based also on the facts as established by the evidence. I would therefore dismiss the appeal on liability.

103    Both the appellant and the respondent have raised issues with respect to the damages awarded. In the light of the opinions of my colleagues, it is unnecessary for me to deal with this issue in any detail. Mrs Shorey is disabled because she thinks she is disabled and she suffers pain because her mind told her she suffered pain and the pain has become established. However, I do not think that it would be proper to allow the substantial claims for house modification or for future care which were put forward. These items would tend to confirm to Mrs Shorey her view of her condition. The treatment that she requires is treatment to change her mind-set. Moreover, in this case, there is at least a considerable possibility that, once the legal proceedings have been concluded, Mrs Shorey may well show signs of recovery. There is the further point that Mrs Shorey was, I believe, susceptible to a psychosomatic disorder. Although none such had developed before her fall on 2 April 1988, she had had quite a number of visits to hospitals before the fall. Amongst the complaints recorded, from time to time, were complaints of pain. On 2 March 1984, Dr Farrar reported:-

“Mrs Shorey was somewhat agitated and I think that her breathlessness might have been due to anxiety, this might also have been the cause of her gastritis and pain. She has in fact had considerable anxieties in her family in the last year.”

In these circumstances, any award of damages would have to include a high discount for vicissitudes.

104    Taking into account all the factors, it seems to me that the findings of the trial Judge on damages were well based and were well within the range of his Honour’s discretion. The only item in respect of which I would make an adjustment concerns fund management, in respect of which his Honour allowed $43,432. Despite the fact that Mrs Shorey suffers from a conversion disorder, there is no reason to doubt her ability to look after and to manage her own funds without professional assistance of the type that the trial Judge had in mind. The circumstances do not justify such an allowance.

105    For these reasons, I would reduce the award of damages to $511,780.55 but would otherwise dismiss the appeal. I would order that the cross-appeal be dismissed. Costs should be reserved.

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