Vallas v Smith

[2002] NSWCA 217

CITATION:	Vallas v Smith [2002] NSWCA 217
FILE NUMBER(S):	CA 40648/01
HEARING DATE(S):	02/07/02
JUDGMENT DATE:	12 July 2002
PARTIES :	Christopher Vallas (Appellant) Dr John Sydney Smith (Respondent)
JUDGMENT OF:	Giles JA at 1; Ipp AJA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1972/95
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL:	C T Barry QC/R Tonner (Appellant) A Bellanto QC/J Young (Respondent)
SOLICITORS:	McClellands (Appellant) Staunton & Thompson (Respondent)
CATCHWORDS:	DAMAGES - appeal against quantum of damages - whether the evidence justified amount of damages - where there was an absence of evidence supporting the findings of the trial judge - award for damages beyond the judge's discretion - - PRACTICE AND PROCEDURE - admission of fresh evidence - discretion - matters occurring after trial - principles - interest on damages. ND
CASES CITED:	M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Orr v Holmes (1948) 76 CLR 632
DECISION:	See para 49.

CA 40648/01
DC 1972/95

GILES JA
IPP AJA

Friday 12 July 2002

CHRISTOPHER VALLAS v DR JOHN SYDNEY SMITH

Judgment

1 GILES JA: I agree with Ipp AJA.

2 IPP AJA: The respondent was the plaintiff in a District Court action in which he claimed damages from the appellant for assault. Moore DCJ held that the appellant was liable to the respondent and assessed the respondent’s damages at $306,000. This sum was made up of $60,000 in respect of general damages, $146,000 in respect of past economic loss and $100,000 in respect of future economic loss.

3 At the trial the appellant denied that he assaulted the respondent. The appellant does not appeal against the finding by Moore DCJ that he had committed the assault. He does, however, appeal against the assessment of damages.

4 The principal ground of appeal is that the evidence did not justify the finding by Moore DCJ that the injuries sustained by the respondent were productive of economic loss. So that this argument can be fully understood it is first necessary to set out some background material and describe the assault committed on the respondent.

5 The respondent is a consultant psychiatrist. At the relevant time, the bulk of his practice consisted of medico-legal work. Insurance companies and other defendants regularly retained the respondent to examine and report on persons who were plaintiffs in actions for personal injuries. The appellant was such a plaintiff and the assault occurred on 4 October 1994 in the respondent’s rooms while he was in the course of examining the appellant for medico-legal purposes.

6 The respondent was then 60 years of age. Moore DCJ noted that the respondent’s “chosen field was a stressful one, both because of its intrinsic nature and the violent behaviour of many of his patients”. In his lifetime the respondent had been subject to a number of factors that had caused him stress. By October 1994 none of these had caused him more than a passing problem.

7 Prior to the examination that led to the assault, the respondent had examined the appellant on three earlier occasions. On the day in question there was a brief discussion between the appellant and the respondent. The respondent then asked the appellant how he had been in the last 12 months. The appellant screamed in offensive language words to the effect that he had been feeling awful. The respondent asked in what way. The appellant screamed, “I’ll show you in what way”. At this stage the respondent was making notes of the interview. The appellant jumped out of his chair, leaned across the desk and hit the respondent across the face with an open hand. The blow took the respondent by surprise and dislodged his glasses. He was propelled backwards from his chair into a window behind him and, at the same time, fell to the floor. The blow caused a laceration to his nose and profuse bleeding. He got to his feet, stunned and sore. The appellant in the meantime was standing in the same place, still screaming. The respondent ran out of the consulting room to his reception area and told his secretary to call the police. The police arrived and took the appellant away.

8 The physical injuries caused by the assault were not serious. An x-ray showed a fracture of the nose, that is, through the bony portion of the central nasal septum. One radiologist was of the view that there had been a slight displacement and deviation of the septum to the left. An ear nose and throat surgeon expressed the view that the nasal septum was straight. No treatment was necessary for the fracture and displacement.

9 The wound to the respondent’s nose was dressed and subsequently treated by cosmetic operation. The respondent was left only with a minor blemish about which he made no complaint.

10 In his evidence in chief the appellant said that, save for the initial blow and stinging that he experienced in the first couple of hours after the blow, there was no pain. His nose did not hurt and the inconvenience of the scar healing took a week.

11 The respondent’s principal injuries were psychological. Moore DCJ found:

“He has continuing nervousness and anxiety, with apprehension in some stressful situations when dealing with patients, which can lead to panic attacks either at the time of the stress, or later”.

12 Prior to the assault the respondent had not suffered from depression, anxiety or any psychological problem.

13 The respondent testified that after the assault he had some panic attacks when there was a suggestion of a confrontation with others. He described panic attacks that he had experienced after the assault in 1994 and 1995 particularly with two violent patients. He said that since 1994 the panic attacks continued on a “fairly steady” basis until August 2000 when arbitration proceedings relating to his claim took place. He said that following those proceedings his level of anxiety increased.

14 The respondent testified that since the assault he had been having difficulty sleeping and needed to take drugs on a regular basis in order to sleep. This he had not experienced prior to the assault.

15 The respondent said that after the assault he had withdrawn socially and he had become colder and less interactive with his wife and family.

16 The respondent testified that after the assault “he was more slowed up physically and mentally”. He said that his concentration was not as good as previously and his “energy level” did not seem to be as high. He said:

“I just chronically felt like an old man, it was – I felt tired just doing any activities, just going through the normal pace of the day I felt exhausted”.

He repeated:

“Inside and outside of my professional life I felt slowed up”.

17 In his evidence in chief, the respondent said that because he had “slowed up mentally and physically” he started to cut down on his appointments. He said this occurred “probably about six months after the assault”. He explained that he always had a waiting list of about three or four months. The respondent said that he instructed his secretary to reduce the numbers of persons he was to assess in the course of his practice. He volunteered that:

“The attrition would have been after the three months [waiting list had expired]”.

He was then asked:

“And from that time it’s been about roughly the same?”

He replied in the affirmative. The point was then clarified by his counsel, who asked:

“That is your ability to see the persons for assessment and prepared [sic] the reports?”

The respondent replied in the affirmative.

18 Again, in evidence in chief, the respondent confirmed:

“I think the initial fall-off that I attributed to my depression and stress was in the initial year [after the assault]”.

19 In cross-examination the respondent said:

“I think it was probably about three or four months after the assault that I realised I wasn’t coping and asked them to cut down [the number of consultations]”.

20 The “fall-off” or reduction in work involved the hours worked by the respondent. Although, after the assault, the number of cases handled by the respondent reduced, the respondent explained that this occurred because the cases became more complex. In other words, the reduction in the number of cases was not due to the appellant’s depression or anxiety or lack of energy – it was due to the growing complexity of medico-legal cases; they took longer to deal with. The respondent’s case was that the fall in his energy level and the tiredness he experienced caused him to cut down in the number of hours worked.

21 The thrust of the respondent’s testimony, therefore, was that three to six months after the assault took place he was compelled by his psychological condition to reduce the number of hours he worked and, once the reduction had taken place, the number of hours he worked remained roughly the same.

22 As part of his case the respondent tendered a report dated 29 August 1998 by Dr Shand, a psychiatrist. The following passages in Dr Shand’s report are relevant:

“[The respondent] has had the tendency to become ‘relatively Aphonic,’ during anxiety provoking circumstances, one of which included having to sack a relatively senior staff member when he was Acting Director of the Neuropsychiatric Unit. This has continued to the present day during consultations with aggressive patients. The last one was two weeks before the consultation with me during a consultation with an agitated epileptic patient in a room at court, when he had trouble writing and talking. Frequency of this has been about four times per year.”

and:

“The respondent does not have any physical complaints as a result of the assault. During the post-assault phase, he suffered from one or more panic attacks. The description indirectly from his wife suggested that there was some degree of numbing for some time after the assault. Since then the history indicates raised general anxiety with respect to consultation with hostile, aggressive patients, causing dysphonia and some difficulty writing. He has noticed this particularly during two such consultations since the assault. He copes with non work-related stresses well, including the experiences of his two children mentioned above. He also apparently coped well with very stressful financial problems due to a large provisional taxation assessment, said to be due to an inefficient accountant, five years ago. He is also no stranger to threats of death and kidnapping by telephone during his involvement with the Neuropsychiatry Unit and with the Chelmsford Hospital Royal Commission. He denies any need of psychiatric treatment as a result of the assault on 4/10/94. He has become involved in regular yoga and benefits from that, both physically and psychologically. He considers that he is functioning efficiently in his psychiatric practice, at all times, in spite of a raised level of anxiety when consulting with disturbed and aggressive patients. In keeping with this he showed no signs of any clinical nervous disorder during the consultation. Prognosis for future mental health is good.”

Dr Shand noted that the respondent had told that he “has a good quality of life now”.

23 Dr Shand’s report was inconsistent with the evidence of the respondent in a number of respects.

24 Importantly, Dr Shand recorded that the respondent “considers that he is functioning efficiently in his psychiatric practice, at all times, in spite of a raised level of anxiety when consulting with disturbed and aggressive patients”. According to the respondent’s testimony, however, by the date of Dr Shand’s report, 29 August 1998, his anxiety state and his depression had – for nearly four years - caused him to be working at a significant reduced hourly level.

25 Dr Shand’s account of the panic attacks experienced by the respondent suggested that there were far fewer such attacks, and they were far less prevalent, than respondent’s evidence indicated.

26 The respondent’s denial of “any need of psychiatric treatment as a result of the assault on 4/10/94” was inconsistent with his complaints of depression, anxiety and panic attacks. In the light of the respondent’s profession, this denial was of particular relevance.

27 The statement by Dr Shand that the respondent “has a good quality of life now” was inconsistent with the complaints the respondent made about his relationship with others, including his wife and family, his withdrawal from social life and his difficulties in sleeping.

28 The objectively proved facts relating to the hours worked by the respondent after the assault also gave rise to material inconsistencies. The significant point concerns the time when the hours worked by the respondent first began to reduce. It was common ground that the first significant reduction in working hours occurred in the year ended 30 June 1997. That is, two years after the assault. Thus, the respondent was in error when he testified that, after three to six months of the assault, he first began to work less. Also, he was wrong in saying that, as from three to six months after the assault, the reduced lesser number of hours worked by him remained more or less constant.

29 Moore DCJ said in regard to the respondent’s testimony:

“I was much impressed by his clear appearance of honesty and genuineness, and the Spartan presentation of his case, without any attempt at artifice”.

His Honour dealt with the inconsistencies in the evidence presented on the respondent’s behalf by saying:

“Even though he is an experienced and highly qualified expert in the field which his case occupies, I feel there is a real likelihood he suffers from the same natural anxiety which affects many plaintiffs as the litigation steadily approaches its climax, stimulated by a arbitration hearing in the process. Firstly, that could well have affected (a) his behaviour over the past year or so, in particular, and (b) his oral evidence, leading to departures, orally, from the objective material provided by himself. I do not doubt his subjective honesty. Secondly, that feature is likely to dissipate substantially when the litigation is over.”

30 Later in his reasons, Moore DCJ observed that Dr Shand’s report “raises such questions as, was the [respondent] intending to inform Dr Shand that the assault had not affected his ability to practise, or, was the [respondent] showing bravado to a fellow psychiatrist while his practice was in fact suffering, or has Dr Shand made a mistake in recording or interpreting the [respondent’s] statements.” It is implicit in his reasons that he accepted one or more of these possibilities.

31 The learned judge proceeded:

“Insofar as it is specific, Dr Shand’s report is directed to the [respondent’s] anxieties at the workplace, and his work capacity. It speaks about ‘clinical nervous disorder’ and ‘mental health’, to the effect that the [respondent] is not suffering from one of the illnesses for where there is a psychiatric label. It is over 2 ½ years old. It makes no mention of the disturbances to his living stated in paragraph 15, or his need for medication. Its confident prediction is in discord with the [respondent’s] evidence that of recent times he has had to increase his medication and reduce his working hours and that this is due to his ‘anxiety and depression’. The [respondent] did not call his condition depression in the formal clinical sense, but his description of his signs and symptoms are some of those encountered in medical evidence about psychiatric disorder. It is not for me as a lay person to attribute any medical diagnosis, but it is necessary for me to decide whether the [respondent] in fact suffers from the complaints he alleges, and whether they result from the [appellant’s] assault.
I prefer the [respondent’s] evidence as to his history and his condition, because I was highly impressed by his demeanour, he is coincidentally well qualified to speak about the things he speaks about, he was forthright and he made no attempt to artifice to embellish his case. Although I allow for the real possibility of his unconscious exaggeration, there was no malice in this. In this case there is no need to find a form medical term, describing his condition, before he is entitled to compensation.”

32 Moore DCJ referred to the fact that there was no decrease in hours worked until two years after the assault, and said:

“This is consistent with his attempting to reduce his caseload, but finding that the average time spent on cases was increasing. He is a highly conscientious person both on my observation of him and from regard to his curriculum vitae. It is quite possible that, even though he was instructing his secretary to reduce the caseload, he was at first honouring requests beyond what he would like, and, with each case, permitting the work expended on it to expand. That possibility would have seen him becoming increasingly less able to cope, and, taking a firmer grip on his commitments, successfully reducing his work to what he could handle. This possibility is the one I favour, on consideration of all the evidence.”

33 Moore DCJ, therefore, attempted to reconcile the glaring inconsistencies between the evidence of the respondent (on the one hand) and that of Dr Shand and the facts that were common ground (on the other) by accepting selective parts of the respondent’s evidence, rejecting selective parts of Dr Shand’s evidence, and by making other factual findings that justified the course he took.

34 There are several problems with this approach. Firstly, Dr Shand’s report was tendered by the respondent himself without any qualification. This report formed an essential plank in the respondent’s case. Accordingly, the appellant’s counsel was entitled to take the view that he would not cross-examine Dr Shand (and he did not) and he would merely conduct the case on the basis that Dr Shand’s evidence would be accepted (and he did). At no time during the trial did the respondent suggest that Dr Shand’s report should not be taken at face value. The learned Judge, too, gave no indication that he would make factual findings that were inconsistent with what was stated in the report. The report was dealt with at all times on the basis that, in its entirety, it was an unchallenged part of the respondent’s case.

35 In these circumstances, his Honour had no basis for factual findings, in effect, discounting a large part of Dr Shand’s testimony.

36 Of like importance is the fact that there was no evidence that justified the findings (express and implied) made by the judge in departing from Dr Shand’s report.

37 There was no evidence that supported the finding by Moore DCJ that, although the respondent instructed his secretary to reduce his caseload, at first (presumably for some two years) he honoured requests “beyond what he would like” and permitted the work “to expand”. Moreover, there was no evidence which supported the suggestions by his Honour that the respondent did not intend to inform Dr Shand that the assault had not affected his ability to practice, or that the respondent was “showing bravado to a fellow psychiatrist while his practice was in fact suffering,” or that Dr Shand made a mistake in recording or interpreting the respondent’s statements. In the absence of supporting evidence there was no basis for his Honour making these findings.

38 In essence, Moore DCJ held that the psychological effects of the assault gradually evolved in such a way that they manifested themselves for the first time two years after the assault to an extent that required the respondent, then, for the first time, to reduce the hours he worked. This underlay his Honour’s finding that “of recent times” the respondent had to “reduce his working hours” due to his “anxiety and depression”. Again, there was simply no evidence that supported this finding. More than that, it was quite contrary to the respondent’s own evidence.

39 In my opinion, having regard to the way in which the respondent’s case was presented and the absence of evidence supporting the crucial findings of Moore DCJ, those findings cannot stand.

40 The medical evidence the respondent tendered at the trial was to the effect that he did not have any physical complaints as a result of the assault, that at all times he was functioning efficiently in his psychiatric practice, that he showed no signs of any clinical nervous disorder and that the prognosis for his future mental health was good. For findings to be made that differed from this evidence, there needed to be testimony that explained that the psychological effects of the assault were delayed for two years, that explained how such a delayed effect occurred, and that explained why Dr Shand’s views and his evidence as to what the respondent had told him should be ignored. There was no such testimony. Or there needed to be evidence from the respondent himself that the psychological effects on him were delayed for two years, in circumstances in which that evidence could be accepted although not supported by medical evidence. There was no such testimony, and I repeat that the respondent’s evidence was to the contrary.

41 The respondent was unable to work for two and a half days following the assault. In my view, the loss he suffered in this period should be incorporated in the award for general damages. In my view, the respondent did not establish that he was entitled to any other award in respect of economic loss, whether past or future.

42 Moore DCJ awarded $60,000 in respect of general damages. This award was based substantially on the degree of anxiety, panic attacks and depression found by his Honour to have been experienced by the respondent and his Honour’s view as to the respondent’s limited prospects of recovery. For the reasons I have expressed, these findings were not justified by the evidence. In my view, having regard to the evidence in fact given by the respondent on the relevant issues, and to Dr Shand’s report, the award of $60,000 for general damages was beyond the Judge’s discretion. I consider an appropriate award under this head to be $20,000 (and this includes an allowance for the two and a half days loss of income to which I have referred).

43 The respondent should be entitled to interest on this sum from the date of the assault in accordance with the principles expressed in M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657. I would regard half of the general damages so awarded as being in respect of the period prior to the date of judgment. I assess interest on this basis at $650.

44 At the commencement of the appeal the respondent sought to tender medical evidence that, arguably, would have supported the judge’s findings. The Court dismissed the application and indicated that it would give its reasons for its decision when giving judgment.

45 In my opinion, the discretionary factors, referred to Doherty v Liverpool District Hospital (1991) 22 NSWLR 284, tending against the admission of evidence, outweighed those factors to the contrary. In particular, as Gleeson CJ put it in that case (at 297):

“What appears to me to be of more importance is the nature of the action, involving as it did the awarding once for all of a lump sum based upon the facts known at the date of the trial, coupled with the circumstance that the relevant event which occurred following the trial was the realisation of a specific contingency … which the jury were specifically instructed to allow for and in respect of which they were told to make a discount from their assessment of damages”.

46 In the present case the medical evidence sought to be tendered by the respondent related to the continued effects, after the trial, of his depression and anxiety. As I have indicated, the contention that the respondent did suffer from anxiety and depression in consequence of the assault was an issue at the trial, as was the question whether that anxiety and depression caused economic loss. Accordingly, the medical testimony sought to be tendered related to the realisation of specific contingencies that Moore DCJ intended to allow for in his assessment of damages.

47 Secondly, there was nothing in the affidavit material that explained why at the trial evidence was not led from the doctors concerned (or from medical practitioners having similar specialities) expressing their opinions as to the future course of the respondent’s anxiety and depression. The only medical evidence tendered on the respondent’s behalf was that of Dr Shand and, as I have indicated, he expressed a highly optimistic opinion as to the respondent’s recovery. Dr Shand’s report was provided more than two years prior to the trial and the affidavits contained no explanation as to why more up-to-date evidence was not supplied. Thus, there was no evidence to show that the evidence sought to be tendered would not have been available at the trial had the respondent prepared his case with due diligence: Orr v Holmes (1948) 76 CLR 632.

48 For the above reasons I considered that the application to lead the new evidence should be dismissed.

49 In my opinion:

(a) The appeal should be upheld.

(b) The orders made by Moore DCJ in relation to the assessment of damages should be set aside.

(c) Damages should be assessed at $20,000.

(d) Interest of $650 should be awarded on the said sum of $20,000.

(e) The respondent to pay the appellant’s costs of the appeal

(f) The respondent to have a certificate under the Suitor’s Fund Act if otherwise entitled.

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