Tran Thi Minh Trang v Benjamin Sampson No. SCGRG 92/2002 Judgment No. 4115 Number of Pages 8 Damages General Principles

[1993] SASC 4115

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN(1) COX(2) AND DEBELLE(3) JJ

CWDS
Damages - general principles - Trial judge accepting evidence of one psychiatrist in preference to another - finding open on evidence. Trial judge erred in finding that accident was not sole cause of injury to ear - despite error no ground for adjusting numerical value for non-economic loss but award for special damages increased.

HRNG ADELAIDE, 1-2 June 1993 #DATE 23:8:1993
Counsel for appellant:     Mr T Mellor
Solicitors for appellant:    Mellor Olsson
Counsel for respondent:     Mr S Walsh QC
Solicitors for respondent: Ward and Partners

ORDER
Appeal allowed.

JUDGE1 DUGGAN J The appellant was awarded damages for personal injury in the District Court following a motor vehicle accident which took place on 20th January, 1989. The accident occurred while the plaintiff was driving her daughter to school. The driver of the other vehicle involved failed to give way to the appellant and the front of the appellant's car collided with the right side of the other vehicle. The issue of liability was resolved before the trial and it was agreed that the appellant should receive 85% of the amount of damages assessed by the court. 2. The learned trial judge found that the accident resulted in soft tissue injury to the plaintiff's neck and temporo-mandibular joint dysfunction which caused pain in the right side of the jaw radiating to the right ear and into the neck. He also found that ligamentous strain to the cervical spine caused in the accident contributed to the occurrence of a right inner ear fistula which required surgical intervention. His Honour accepted that the appellant suffered shock as a result of the accident but he rejected evidence called on her behalf to the effect that she suffered from a psychiatric illness brought on by the accident. The trial judge assigned a numerical value of 7 on the Wrongs Act Scale to compensate the appellant for non-economic loss and awarded $7,489.36 for past economic loss. He rejected the claim for damages for future economic loss. The total award before apportionment and inclusive of special damages and interest was $25,619.36. The grounds of appeal allege that the award under each head of damages is manifestly inadequate and that the trial judge erred in finding the appellant did not suffer a loss of future earning capacity. It was argued that the learned trial judge made incorrect findings in relation to the evidence of psychiatric disability; the appellant's ear condition; and the reasons as to why the appellant did not return to work. 3. The appellant called Professor McFarlane and Dr Skinner to establish that she suffered from psychiatric illness caused by the accident. This evidence was contradicted by Dr Scanlon who was called by the respondent. Before discussing this conflict it is necessary to summarise the appellant's background. She was born in South Vietnam on 8th September, 1960. She lived a difficult life as an adolescent in that country because of the political turmoil existing at the time. She was married in November 1979 and she has a daughter and a son. The daughter was born in Vietnam in October 1980 and the son in Australia in May 1990. 4. When her daughter was two months old the appellant, her husband and the child left Vietnam in a boat with approximately 70 other people and set out for Malaysia. The boat capsized a short distance from the Malaysia coast and the appellant and her husband swam to the shore. At first the appellant believed that her daughter had been drowned during the incident, but after reaching land she discovered that the child had been saved by another occupant of the boat. The appellant and her family were allowed entry into Australia in May 1981. She found work with a laundry company in Adelaide and was employed there for approximately three and a half years prior to the accident. 5. Dr Skinner, a psychiatrist, saw the appellant for the first time on 18th July, 1989 after she had been referred by her general practitioner Dr Le Cong. The appellant gave a history of feeling depressed, unwarranted outbursts of anger directed at members of her family, interrupted sleep, decreased appetite and inability to cope adequately with housework. She was tearful during the interview. Dr Skinner formed the view that the appellant was suffering from major depression as a result of the accident. She attached importance to the appellant's fear, immediately after the accident, for the safety of her daughter who suffered a minor injury when her head made contact with the front windscreen. The appellant continued to see Dr Skinner from time to time. On 27th July, 1990 Dr Skinner reported that the depression had improved to some degree but had not resolved completely. 6. On 8th August, 1991 the appellant was seen by another psychiatrist, Professor McFarlane, at the request of her solicitors. He diagnosed two psychiatric disorders, namely, a major depressive disorder and post traumatic stress disorder. He said that both were caused by the accident. Professor McFarlane was of the view that the appellant had also suffered from a post traumatic stress disorder following the incident in which the boat capsized. He said that dissatisfaction with her employer and the birth by caesarean section of her son had played "a perpetuating role in her depression". Professor McFarlane reported:-
    "As suggested in both Dr Skinner's reports and in the
    history given to me, Mrs Tran's initial distress in the accident
    was associated with her fears of injury to her daughter. Her
    sense of traumatisation appears to directly relate to the earlier
    experience with this child where she nearly drowned as an infant
    as they were escaping from Vietnam. As described, she was
    sufficiently traumatised by that experience to develop a post
    traumatic stress disorder. This has left her vulnerable to
    subsequent events, particularly when they focus on this child.
    However, I do not believe that in the absence of this accident,
    Mrs Tran would have developed her current symptoms." 7. Professor McFarlane suggested that South East Asians have difficulty in focusing on the psychological symptoms of depression and that they present with a variety of somatic symptoms including pain and dizziness. He concluded:-
    "In general, her case would appear to demonstrate the
    important interaction between depression, post traumatic stress
    disorder and physical symptomatology. Her psychiatric symptoms
    lead to a greater focus on her underlying physical symptoms
    particularly given her cultural background." 8. Dr Scanlon saw the appellant on 27th November, 1990 and 8th October, 1991. He noted that she did not show any overt signs of psychiatric disability. On the first occasion he took an extensive history from her. He concluded that there was no evidence to suggest that the appellant had any psychiatric disability; nor could he see why an accident of this nature would produce a psychiatric condition. Dr Scanlon expressed the view that if there were any symptoms of anxiety or depression they were more likely to be related to the appellant's pregnancy and the emergency caesarean section which was performed on her. He also viewed the absence of any support from relations apart from her husband as a major problem. Dr Scanlon specifically rejected the diagnosis of major depressive illness and post traumatic stress disorder. 9. The learned trial judge summarised the psychiatric evidence in his reasons for decision. He said he preferred the evidence of Dr Scanlon. He rejected the evidence that the appellant was suffering from a psychiatric illness and stated that the accident was not likely to occasion more than the usual upset consequent upon such an incident. He accepted Dr Scanlon's view that the appellant's pregnancy, the circumstances of her son's birth and the difficulty she encountered in Vietnam and on the trip to Malaysia were all stressors which were more likely to have been the cause of feelings of depression than the accident. 10. In my view the criticism of the learned trial judge for preferring the view of Dr Scanlon over the other psychiatric evidence is unjustified. Nothing which has been put to this court has revealed any flaw in the approach of this witness to the matter. There was no significant difference in the case histories compiled by the psychiatrists. The question as to whether the appellant suffered from a psychiatric illness was a matter of opinion to be determined in accordance with psychiatric criteria with which all the psychiatric experts were familiar. The further issue as to whether, as a matter of psychiatric opinion, any symptoms of depression could be related to the accident was also a matter of judgment. 11. There were some specific criticisms of the reasoning of the trial judge on this issue. In referring to Professor McFarlane's evidence the trial judge stated:-
    "He also said that South East Asians, of which the plaintiff
    is one, suffer in a different way than others particularly having
    regard to the history of the capsize off the shore of Malaysia and
    the trauma to herself and her child and that the same child was
    involved in this accident and therefore renewed the problems of
    the earlier matters." 12. It is true that this comment is somewhat cryptic but in the light of the evidence there can be little doubt as to what the trial judge meant to convey. As I have already mentioned Professor McFarlane referred to the view that people from South East Asia with post traumatic stress disorder tend to focus on somatic symptoms. In that sense it might be said, as the learned trial judge commented, they suffer in a different way. The trial judge's reference to the accident leading to a renewal of the problems associated with the capsize off the coast also reflected something said by Professor McFarlane. This is made plain in the extract from his report which I have quoted above. The witness also referred to this theory in his evidence:-
    "Obviously the information that I have is retrospective,
    but what I was able to establish is this woman developed a post
    traumatic stress disorder after the incident on the Malaysia
    coast, and her symptoms from that receded and were no longer
    apparent, and I believe the reason why this accident was so
    traumatic for this woman was because it reminded her of that
    earlier incident. What occurred in the accident was that her
    daughter cut her head on the windscreen when she wasn't properly
    restrained by the seat belt, and it was the same child as the one
    who nearly drowned off the coast of Malaysia, and often in these
    events the meaning of the experience is the critical issue rather
    than the objective trauma, and I think the meaning of the
    experience had been markedly influenced by that earlier
    occurrence, so I would say she was predisposed as a consequence of
    that earlier incident. There is evidence that once you have had a
    post traumatic stress disorder you are more likely to sustain the
    same symptomology. One can say it is a different episode of
    illness she had on this occasion because of the content of the
    nightmares, and her intrusive recollection wasn't of the incidents
    on the Malaysia coast. This was the memory that specifically
    focussed on the accident. The content of the re-experience
    phenomena tells you about the extent that it has played the
    central role in triggering its onset." 13. Counsel for the appellant then drew attention to the trial judge's assertion that Dr Scanlon's evidence was consistent with his (the judge's) view of the plaintiff when giving evidence during the trial. He went on to say that the appellant presented well, was articulate and could concentrate on the proceedings. The trial judge was quite correct in his further comment that these observations were consistent with Dr Scanlon's view that the appellant was not suffering from a psychiatric illness. Dr Scanlon gave reasons as to why these matters were consistent with his diagnosis. I doubt that they would have loomed large as individual indicators but they were put forward as being compatible with the views expressed. It cannot be said that his Honour attached undue importance to them and the discrepancy between the time the appellant actually spent in the witness box and the information given to Dr Scanlon as to the length of that period can hardly be regarded as significant. 14. Similarly I can see no merit in the complaint that the trial judge viewed the many visits by the appellant to Dr Le Cong before the accident as being consistent with Dr Scanlon's analysis. Dr Scanlon agreed with this proposition (transcript p.219). He said that the complaints of sinus were probably "tension headaches" which could well be the result of the pressures the appellant was under in her life and that by consulting Dr Le Cong she was receiving considerable emotional support from a person who spoke Vietnamese. Nor can I agree with the argument that Dr Scanlon was clearly mistaken in reasoning in this way. 15. Counsel stressed the timing of the symptoms of depression and the fact that the appellant was accepted as being genuine in her complaints. However Dr Scanlon said that it was not unusual for people to fix on a particular event as being the cause of their problems and to "idealise" their pre-accident situation. He also placed emphasis on his view that the accident was a stressor of short duration and limited emotional effect. 16. Despite the arguments addressed by the appellant it has not been demonstrated that the trial judge erred in preferring one psychiatric view over the other and this ground of appeal must fail. 17. Counsel for the appellant challenged the trial judge's findings as to the appellant's intentions in regard to the future of her employment after the accident. The appellant was compensated for past economic loss from the date of the accident to 30th September, 1989. The trial judge found that when she returned to work for a short time after the accident it was the pain in her lower back which prevented her from continuing at the work she was doing prior to the accident. The finding that the only physical barrier to the plaintiff returning to work was her complaint of back pain was challenged by the appellant. 18. In examination-in-chief the appellant said that the pain in her back caused her difficulty on her return to work. In cross-examination she said that both her neck and back gave her pain when working. However the psychiatric evidence aside, the overwhelming preponderance of medical evidence was that the appellant was fit for work by September 1989 at the very latest and I think the trial judge was justified in finding that if the plaintiff was unable to work beyond that date then the cause or causes were unconnected with the accident. 19. At the time of the accident the appellant was a casual employee and it emerged from the evidence that she would have lost her job as a consequence of the pregnancy which led to the birth of her son in May 1990. On 26th October, 1990 the appellant's employer wrote to her terminating her employment as from 23rd November, 1990. The reason cited was the length of time during which the appellant was absent from work which, in the view of the employer, made it impracticable for the company to keep the position open. 20. The learned trial judge commented on the termination of the appellant's employment in the following passage in the reasons for decision:-
    "I find that at the time when, having regard to her medical
    condition, it was appropriate for her to advise her employers and
    keep contact with them that she could return, she failed to do
    this and I am satisfied that it was for reasons other than as a
    consequence of the effects of this accident that she elected to
    desist from further employment at that time. She did not receive
    her notice of dismissal until November 1990 and she ceased any
    attempt at work maybe up to June 1989 but probably prior to that
    date." 21. It was argued that these findings were not supported by the evidence. 22. The appellant said in evidence that she could not cope when she returned to work and in June 1989 her employer told her that she would have to stop working and come back only when she was fit and well. She said she did not apply for work after June 1989 because she still had pain. She said that she would like to return to work "But at the moment I cannot doing anything for a long time". 23. Considered in the light of the events which I have summarised, I can find nothing wrong with the trial judge's finding that the appellant decided not to keep applying for a return to work. The reasons why she did not do so were, as the judge pointed out, unconnected with the accident. She thought she could not return to work because of her disabilities but, apart from the psychiatric evidence, this view receives no support from the medical evidence. There is the further factor that in due course she fell pregnant. 24. Finally the appellant complains of the trial judge's finding that, although the ligamentous strain caused during the accident contributed to the onset of the fistula in the right ear, it was not the only cause. The appellant called Dr Marzec, an ear, nose and throat surgeon, to give evidence of the diagnosis and repair of the fistula. His evidence was not contested. He first saw the appellant on 5th May, 1989. She complained of tinnitus or noise in the right ear. 25. Dr Marzec decided to review the appellant in three months' time and on 18th August, 1989 she returned a positive test for a fistula which the witness described, for the purposes of this case, as being a hole in the inner ear. He operated on the appellant on 25th August, 1989 and found evidence of a fistula which he sealed with fibro-fat. When the appellant was reviewed again on 20th October, 1989 the ear had healed. It was his view that the fistula was no longer a problem and that any pain she might experience subsequently in the right ear would be due to the temporo-mandibular joint dysfunction. It is apparent from Dr Marzec's evidence that the assignment of a cause for a fistula in the ear is often a difficult task. He conceded that there were a number of possible causes for this particular rupture which were unrelated to the accident, but in the end he seemed firmly of the view that this injury was related to the accident. The witness said it was recognised that intracranial pressure caused by ligamentous strain could result in an inner ear fistula and he said it was significant that the symptoms had developed within a reasonably short time of the accident. It is true, as counsel for the respondent pointed out, that the witness originally proceeded on the assumption that the symptoms occurred almost immediately after the accident, an assumption not supported by the evidence. But then Dr Marzec was asked whether it would make any difference to his conclusion if the symptoms appeared three months after the accident and he said it would not. 26. In finding that the accident was a cause, but not the only cause, of the fistula the learned trial judge appears to have misunderstood the witness's views on causation. At no stage was the witness invited to speculate on the suggestion that the fistula resulted from a combination of causes, one or more of them unrelated to the accident. His evidence was confined to individual causes which of themselves could account for the damage. If Dr Marzec's evidence is to be accepted, as it appears to have been by the trial judge, then I think the only conclusion which can be drawn from it is that the accident was the sole cause of this injury. Of course even if it was a precipitating cause by reason of some pre-existing circumstances there would be no justification for the trial judge treating it as no more than a contributing factor so as to in some way reduce its effect as an incident upon which an award for damages might be made. 27. It is clear from the trial judge's remarks that he did not ignore the onset of the fistula and its consequences as a factor in assigning a numerical value for non-economic loss. He gave it some weight by saying that it was relevant to the degree to which it contributed. He said nothing more as to the extent to which it was taken into account. The fistula produced tinnitus, dizziness, and contributed to the pain in the right ear. Although it required an operation it does not appear to have loomed large in the appellant's overall presentation. There is no residual disability. In all the circumstances I am not persuaded that after giving this injury its full effect, the numerical value and hence the award of damages for non-economic loss should be increased. 28. The failure to give full effect to the ear injury cannot have any impact on the award for past economic loss or the refusal to award damages for future loss of earning capacity. There is no suggestion that any symptoms arising from the fistula would have prevented the appellant from returning to work after the end of the period for which she was compensated for past economic loss. 29. However some adjustment should be made to the amount allowed for special damages which was discounted in part by reason of the trial judge's finding that the accident was only partly to blame for the ear injury. It would appear that the medical expenses related to the ear injury include Dr Marzec's fees, those of the anaesthetist who attended during the ear operation and hospital charges amounting in all to $2,889.50. As I have said the trial judge gave no indication as to the extent of the discount made by him but in my view the award for special damages should be increased by an amount of $1400.00. After a reduction of 15% this would increase the total assessment after apportionment by $1,190.00 to $22,116.46. 30. In my view the appeal should be allowed for the limited purpose of increasing the award to $22,116.46. It would be necessary to hear the parties as to any consequential increase in interest.

JUDGE2 COX J In my opinion this appeal should be allowed for the purpose of increasing the damages to $22,116.46. I agree with the reasons that have been prepared by Duggan J.

JUDGE3 DEBELLE J I agree with the reasons of Duggan J. and the order he proposes.