Sohn v Minniti

[2002] WASCA 263

SOHN -v- MINNITI [2002] WASCA 263

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 263
Court:	THE FULL COURT (WA)
Case No:	FUL:22/2002	Heard:	3 SEPTEMBER 2002
Coram:	WALLWORK J MURRAY J BURCHETT AUJ	Delivered:	20/09/02
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed; New trial ordered, limited to damages; Cross-appeal dismissed; Respondent to pay costs of appeal and cross-appeal; Costs below to be costs in the new trial
Category:	B
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Parties:	SUSAN ROSEMARY SOHN DOMENIC MINNITI
Catchwords:	Appeal and new trial Failure of judgment under appeal, by reason of fundamental inconsistencies, to show basis of the assessment of damages made Effect of imprecise suggestion of exaggeration by plaintiff in circumstances where considerable organic disability was accepted Failure of trial court to give reasons that explained the basis of its decision Inability of appellate court to reassess in the absence of clear findings on the issue of exaggeration New trial ordered
Legislation:	Nil
Case References:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bushell v Repatriation Commission (1992) 175 CLR 408 Klahn v Audeh [2001] WASCA 336 Paterson v Paterson (1953) 89 CLR 212 SS Hontestroom v SS Sagaporack [1927] AC 37 Watt or Thomas v Thomas [1947] AC 484 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SOHN -v- MINNITI [2002] WASCA 263 CORAM : WALLWORK J

MURRAY J
BURCHETT AUJ

HEARD : 3 SEPTEMBER 2002 DELIVERED : 20 SEPTEMBER 2002 FILE NO/S : FUL 22 of 2002 BETWEEN : SUSAN ROSEMARY SOHN

Appellant

AND

DOMENIC MINNITI
Respondent

Catchwords:

Appeal and new trial - Failure of judgment under appeal, by reason of fundamental inconsistencies, to show basis of the assessment of damages made - Effect of imprecise suggestion of exaggeration by plaintiff in circumstances where considerable organic disability was accepted - Failure of trial court to give reasons that explained the basis of its decision - Inability of appellate court to reassess in the absence of clear findings on the issue of exaggeration - New trial ordered

Legislation:

Nil

(Page 2)

Result:

Appeal allowed; New trial ordered, limited to damages; Cross-appeal dismissed;

Respondent to pay costs of appeal and cross-appeal; Costs below to be costs in
the new trial

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela
Respondent : Mr J R Brooksby

Solicitors:

Appellant : Friedman Lurie Singh
Respondent : Greenland Brooksby

Case(s) referred to in judgment(s):

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Bushell v Repatriation Commission (1992) 175 CLR 408
Klahn v Audeh [2001] WASCA 336
Paterson v Paterson (1953) 89 CLR 212
SS Hontestroom v SS Sagaporack [1927] AC 37
Watt or Thomas v Thomas [1947] AC 484

Case(s) also cited:

Nil

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1 JUDGMENT OF THE COURT: This is an appeal from an assessment of damages arising out of a motor vehicle accident. The appellant was a front seat passenger in a vehicle which was struck from behind when the driver (her husband) was attempting to make a right hand turn. As a result of the impact, the vehicle was so damaged that the insurance company treated it as a write-off, although restoration subsequently proved possible. The appellant undoubtedly sustained injuries, but the precise nature and extent of them were each the subject of dispute. According to her case, her mouth was injured and a tooth loosened, either by her being thrown forward against some part of the vehicle or by an ashtray (which apparently was dislodged in the accident) striking her. Apart from the damage to the tooth, and the question whether the blow led to the development of a palate fistula, the plaintiff raised the allegation that the injury to her mouth was particularly distressing for her, since she had had many operations to remedy a cleft palate with which she had been born. But more serious than the claims relating to the appellant's mouth is a claim relating to her left shoulder. That claim is that the shoulder was injured, either by some impact injury or by a stretching injury when she attempted to reach and succour her child aged seven who was seated behind her in the vehicle. Compounding the effects of her physical injuries, the appellant also claimed she suffered a serious adjustment disorder, with anxiety and depression, as a further consequence of the accident. Each of these claims involved large areas of dispute at the hearing in the District Court, and the judge commented that the "plaintiff's credibility is very much in issue in this case".

2 The decision assessing damages has been the subject of both an appeal by the plaintiff and a cross-appeal by the defendant.

3 Although, at the hearing of the appeal, counsel for the respondent readily accepted that some soft tissue injury to the shoulder had been caused in the accident, the shoulder disability alleged by the plaintiff was very strongly debated in the District Court. The plaintiff, supported by a number of eminent doctors, contended that she had developed a condition described as "a winged scapula" which caused significant limitation of movement to her left shoulder and arm, pain, and disability to the left hand. While, as we have indicated, there was much medical evidence favouring this contention, evidence which put the extent of the incapacity at about a 50 per cent loss of the function of the left upper limb, or at least of the shoulder, there was some difference of view among the appellant's doctors as to the precise mechanism by which the incapacity was being produced; and a Dr John Kagi stood out with a view, which received some support from a Dr Silbert, that the appellant was voluntarily procuring the

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winged scapula. As against this, the trial Judge held that the "vast bulk of the evidence received by me is against that theory. Most doctors say it is simply impossible to voluntarily cause the serratus anterior muscle to fail to operate thus allowing the scapula to assume a winged position. The plaintiff has been seen over a number of years by a number of practitioners and the winged scapula has been consistent during that time. I prefer the evidence of Professor Frank Mastaglia and Professor Alan Skirving to this effect. I think the possibility of the plaintiff being able to voluntarily assume a winged scapula is remote and I do not accept that that is what she is doing". His Honour might have added that Professors Sonnabend, Murrell and Harper were all prominent among the doctors who accepted the reality of the appellant's complaints. Indeed, it is possible that his Honour meant to include Professors Murrell and Harper as doing so, since at the end of a discussion which continued for almost a page, he added:

"This assessment is consistent with the evidence of Professors Murrell and Andrew Harper."

However, it is not entirely clear what his Honour meant by that last sentence, for it was immediately preceded by a section of the discussion in which, having said "I accept the plaintiff suffered an injury to [her] left shoulder as a result of the motor vehicle accident", and having referred to "pain in the shoulder region", he said:

"Certainly the use of the limb as a whole and indeed generally the pain will interfere with her concentration but in my view the injury is not quite as bad as she makes out."

Counsel therefore read the final sentence as asserting that a conclusion denigrating the accuracy of the appellant's complaints was "consistent with the evidence of Professors Murrell and Andrew Harper". But it was strongly argued by counsel for the appellant, and not refuted by counsel for the respondent, that, so understood, his Honour's remark would be quite incorrect. This is why we have suggested that possibly what his Honour's somewhat obscure syntax was meant to convey was that he regarded as "consistent with the evidence of Professors Murrell and Andrew Harper" the broad finding that the appellant's winged scapula was not voluntarily assumed.

4 The real problem highlighted by this appeal is, in any case, to know what his Honour meant by the comment that "the injury is not quite as bad as she makes out", to which he later added the further comment "I think she exaggerates her difficulties". His Honour simply did not make clear

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the extent and nature of the exaggeration he was suggesting. In many cases, that might not matter very much. But in this case, it seems to have led him to set to one side a great volume of expert evidence assessing the appellant's disability, on organic grounds, as very considerable. Since his Honour unequivocally accepted that the organic injury to the shoulder had in fact been suffered, and that the appellant was not voluntarily assuming her symptoms, it is extremely difficult to understand how this evidence could be so largely left out of account. Indeed, in the section of the judgment which deals with the shoulder injury, there is no mention of the assessment made by any of the galaxy of eminent doctors involved of the percentage disability arising from that injury. Similarly, in the section dealing with loss of earning capacity, having stated that the appellant "exaggerates her difficulties", the judge does not advert to the extent of the objective restrictions to which the doctors say she is subject. It is just not possible to reconcile his Honour's acceptance of the reality of the condition affecting the appellant's shoulder with the low award of damages made by him. It is certainly not possible to do so on the basis of the generalities suggesting some unspecified degree of exaggeration to which we have referred. A fundamental obligation of a court, in stating its reasons for judgment, is to explain the basis on which it reaches its decision. In this case, the contradictory nature of the findings that were made, and the failure to make essential findings, results in the court falling short of performance of that obligation.

5 Expressly saying that he did "not consider the plaintiff is dishonest, in the sense of deliberately feigning her symptoms", the judge, in a section of his judgment headed "Credibility", suggested "the sympathy rather than objectivity of her father, sister and brother-in-law [all medically qualified, and two at least of them very highly qualified], has, I think, slowed her recovery to the extent that her present symptoms cannot be proved to be attributed [scilicet attributable] to the defendant's negligence". If this finding could be taken literally, and assuming it could be sustained, it might explain the discrepancy between the conclusions to which we have just been referring. However, it cannot be taken literally. His Honour plainly did accept at least some of the appellant's "present symptoms" as compensable in this case, and he expressly allowed damages for a period extending into the future. If, therefore, the statement refers only to some of the appellant's symptoms, it is simply impossible to divine which symptoms his Honour had in mind.

6 There are a number of other difficulties with the judgment. A relatively minor one is the disallowance of any expenses related to "doctors in Sydney". Even if his Honour were right in the conclusion that

(Page 6)

this difficult case could not warrant a consultation outside the State of Western Australia, and so would have been right in disallowing travelling expenses to see doctors in Sydney, it would not follow that the medical expenses themselves should have been disallowed. Had the appellant seen doctors in Perth, the medical expenses would still have been incurred. What his Honour's disallowance means is that it was unreasonable to obtain a further opinion, although there were differences of view between the doctors already consulted, but virtual unanimity that the appellant's condition, while unusual and difficult, was real and severe, and although the appellant's medically qualified sister thought she ought to get a further opinion. That conclusion would not follow from his Honour's reasoning, at least so far as it is based on the proposition stated by him: "I am not satisfied this is a case in which the expertise was not available in this State."

7 A larger matter was his Honour's rejection of the evidence of the psychiatrist Dr Paterson. There was a conflict between Dr Paterson, who gave evidence the appellant had suffered and continued to suffer from a significant adjustment disorder, and the psychiatrist who was asked to see the appellant on behalf of the respondent, Dr Mustac. The trial judge relied on Dr Mustac's evidence, which he understood as being to the effect "that by 2 February 2000 the plaintiff had recovered from the anxiety state caused by the accident". However, Dr Mustac, on the basis of a psychological test which two psychologists said he had administered inappropriately and improperly, considered the plaintiff was malingering. The judge expressly accepted the evidence of those psychologists. His reliance on Dr Mustac, on the question of the appellant's recovery, therefore requires some explanation, but his Honour did not give any. It is also noteworthy that Dr Mustac did not attribute all of the appellant's complaints to malingering. He said:

"It does appear that Ms Sohn suffered from an adjustment disorder previously associated with symptoms of anxiety as a result of the accident. It also appears that as a result of assistance from my respected colleague, Dr Paterson and others, she improved."

Notwithstanding this endorsement of Dr Paterson's treatment from the psychiatrist called by the respondent, the judgment includes the following:

"I accept the plaintiff suffered from an adjustment disorder as a result of the accident. … She attended Dr Paterson weekly for about two years and for most of this year on a fortnightly basis. This treatment does not appear to have rectified any problems.

(Page 7)

On the face of it, it is gross over-servicing which cannot be justified except in most extreme circumstances. I do not accept the circumstances of this case are extreme and therefore most of the plaintiff's claim with respect to psychiatric treatment should be rejected."

8 It is not clear to us on what basis his Honour felt able to express this view about psychiatric treatment given by a qualified psychiatrist whom the respondent's psychiatric witness described as "respected", and which the respondent's psychiatric witness considered had been effective. Nor is it clear why the consequences of the judge's view were visited upon the appellant, who may be thought to have acted reasonably in attending for treatment in accordance with expert advice. We heard no suggestion at the hearing of the appeal that Dr Paterson had been challenged for "over-servicing", and indeed it is difficult to know what his Honour meant by the use of that expression since he indicated it could be justified "in most extreme circumstances". If it was really over-servicing, it obviously could not be justified in any circumstances. But on that matter, rather than debate the proposition, the better attitude would be to heed what Brennan J said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 430, to the effect that a lay decision maker "is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner", and what was said in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564 and 569 where the reasoning of both Rich J (in the majority) and Dixon J (dissenting) indicates that the circumstances will be rare in which a lay tribunal can act on medical views of its own in contradiction to those unanimously maintained by responsible medical practitioners.

9 For all these reasons, without pursuing various other points raised by the notice of appeal, the appeal must succeed. In that situation, it is strictly unnecessary, before turning to the question whether there should be a reassessment or a new trial, to consider the cross-appeal. For if there is to be a new trial, the judgment the cross-appeal would seek to reduce will, in any case, have been set aside. Whether or not the propositions put forward by the respondent are arguable upon the judge's findings, the findings at a new trial may be different. In particular, the contention that some aspect of the appellant's present condition is attributable to a novus actus interveniens depends upon a conclusion of fact forming part of a judgment which, we have held, cannot stand. Whether that conclusion should be reached at a new trial would be controversial.

(Page 8)

10 As to the question of new trial or reassessment, we were pressed with the decision of this court (Steytler and Wheeler JJ and Burchett AUJ) in Klahn v Audeh [2001] WASCA 336, where a reassessment was made after the upholding of an appeal against a judge's finding that the appellant had exaggerated her complaints. But it is necessary to understand the ground of that decision. What vitiated the judgment at first instance, it was held (at [20]), was that "[i]t was not open" to the District Court to find the exaggeration that was found "in circumstances where the issue had not been raised by the parties, nor by his Honour himself at any time during the course of the evidence". Having allowed the appeal on that ground, the joint judgment in this court stated (at [23]):

"That leaves the question whether this Court can re-assess the damages, or whether it is necessary to order a new trial of them. If, in order to render justice upon the re-assessment, it would be necessary to resolve the serious issues concerning the appellant's credit that the judge thought the case involved, there would be much to be said for the proposition that an appellate court would be confronted by grave difficulty in endeavouring to do so. However, in our opinion, the respondent is not entitled to have us resolve this issue; for it was not an issue which the respondent ever raised. A party is not entitled to pursue on appeal a case entirely different from that put forward at the hearing, unless the Court can be sure that the evidence would not have been different had the new case been put forward at the proper time. It would be contrary to this principle to order a new trial now in order to enable the respondent to make the kind of case the judge had in mind, which the respondent himself did not suggest in cross-examination or in evidence at the hearing."

11 The present case is of the type distinguished in Klahn v Audeh. Here it is necessary to resolve serious issues of credit, which the judgment below does not resolve. Although the judge held there was organic injury to the shoulder and an adjustment disorder, he also made the imprecise suggestions of exaggeration to which we have referred. On the question of the full extent of the pain and disability produced by the injuries, this court needs findings. They cannot be made satisfactorily, in the circumstances of this unusual case, by an examination of the unresponsive printed record. This is an appeal which echoes the observation of Lord Thankerton in Watt or Thomas v Thomas [1947] AC 484 at 488 which was cited by the High Court in Paterson v Paterson (1953) 89 CLR 212 at 224:

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"The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence."

Particularly is that likely to be so where what Lord Sumner, in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, called the "estimate of the man", or in this case the woman, is very much a factor of significance.

12 In our opinion, a new trial is unavoidable. The judgment of the District Court is set aside, and a new trial in the District Court, differently constituted, limited to the assessment of damages, is ordered. The respondent must pay the costs of the appeal. The costs of the abortive trial should be costs in the new trial. The cross-appeal must be dismissed with costs.