Appellant (Plaintiff) : Ms N Johnson QC & Ms A J Burrows

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Devries v Australian National Railways Commission (1993) 177 CLR 472

Ivkovic v Rinaldi (1980) 25 SASR 516

State Rail Authority of New South Wales v Earthline Constructions Pty Limited & Ors [1999] HCA 3

1 IPP J: This is an appeal against an assessment of damages in a personal injuries action. The appellant was injured on 30 April 1993 when she slipped on a damp floor surface at the Metropolis Concert Club in Fremantle which was owned and operated by the respondent. The appellant was then employed by the respondent as a cleaner. The respondent admitted liability and the only issue for determination at the trial was the quantum of damages to be awarded to the appellant.

2 It was common cause that the appellant sustained a soft tissue injury in the lower spine and left buttock. In consequence, she suffered pain in the lower back which later extended to various parts of her body. According to the appellant, she had "very bad" pain in her back, and right leg and left arm. She experienced changes in sensation and temperature in her lower limbs, her left leg became numb and cold and she sometimes experienced pins and needles. The pain had an effect on her psychological well-being and she became depressed and anxious.

3 At the time of the trial (in August 1997) the appellant's depression had improved but she continued to suffer from chronic pain. The appellant led medical testimony to the effect that her condition was unlikely to improve in the near future, and there was a prospect that she would never improve to the extent that she would be able to work again. The respondent, on the other hand, contended that the respondent was deliberately feigning her symptoms and, at the time of the trial, she was well able to live a normal life and her capacity to work was not affected. The learned trial Judge preferred the testimony led by the respondent and upheld its contentions as to the genuineness of the appellant's condition and her capacity to work. These findings had a significant effect on the damages awarded by her Honour and are the subject of this appeal.

4 Essentially, there were two main issues at the trial. Firstly, the appellant contended that her pain symptoms were caused by reflex sympathetic dystrophy or a similar sympathetic mediated syndrome. This was disputed by the respondent. Secondly, the appellant relied on the testimony of several medical practitioners who expressed the opinion that the appellant's chronic pain symptoms had brought about a degree of depression and anxiety and these interacted with each other so that the depression exacerbated the level of pain which in turn contributed to her depression. The evidence of these doctors was to the effect that the appellant suffered from an unidentifiable psychological problem which brought about depression and resulted in the chronic pain syndrome from which the appellant suffered. The respondent, on the other hand, relied principally on the evidence of a psychiatrist, Dr Mustac, who was of the opinion that the appellant was deliberately feigning her symptoms for some material or psychological advantage. According to Dr Mustac, the appellant could cease her "sick role" by a mere voluntary exercise of will on her part.

5 As mentioned, the learned trial Judge found for the respondent on both these issues. During the argument on appeal Ms Johnson QC, senior counsel for the appellant, challenged only her Honour's findings on the second issue. That is to say, she accepted the finding that there was no physical or organic cause for the appellant's symptoms.

6 Ms Johnson submitted that the learned trial Judge had approached the fact finding task before her by first determining whether the evidence of Dr Mustac should be accepted. She argued that, having found that Dr Mustac's opinion should be preferred to the contrary views expressed by the respondent's medical practitioners, the learned Judge was influenced by that finding to take an adverse view of the appellant's credibility. This, in turn, led her Honour into error in assessing the award of damages generally and, in particular, by determining that no award for future loss of earning capacity and for gratuitous services should be made.

7 It can therefore be seen that the linchpin of the appellant's argument on appeal was the attack on her Honour's acceptance of Dr Mustac's evidence and the rejection of the testimony of the medical practitioners who testified on the appellant's behalf. This argument was based largely on the following submissions:

(a) The reasons given by the learned Judge for accepting the testimony of Dr Mustac were faulty.

(b) The weight of the expert testimony called by the appellant was overwhelming, and the reasons given by the learned Judge for rejecting it were erroneous.

(c) The learned Judge misunderstood the true effect of Dr Mustac's testimony.

8 I shall deal firstly with the reasons given by her Honour for deciding that Dr Mustac's evidence should be accepted. According to the learned Judge, "Dr Mustac's opinion was based on carefully reasoned propositions and substantiated by the objective signs he referred to in some detail in his reports and evidence".

9 Ms Johnson accepted that Dr Mustac had laid out his report "in a very easily readable form which deals with specific matters in specific headings" and that he set out "his conclusions in a logical development of ideas". It was submitted, however, that the reasoning of Dr Mustac was faulty as it was based on his "personalised view" of the appellant's conduct and symptoms. The basic complaint in this regard was that Dr Mustac expressed subjective views on such matters as whether the appellant was malingering, whether she had a capacity to work, and other issues of direct relevance to the appellant's claim. In my view, however, these matters fell within Dr Mustac's expertise as a psychiatrist, and although his views were indeed subjective, that is to be expected - given the nature of the task he was required to undertake - and they must be taken to be based on his expert knowledge as a psychiatrist. Criticism directed at particular opinions expressed by Dr Mustac was merely repetitive of the argument rejected by the learned trial Judge, namely that the opinions of the appellant's medical practitioners should be preferred. In this regard it is to be observed that there is nothing in the testimony of Dr Mustac which establishes that the views expressed by him were wrong and should not have been accepted by the learned trial Judge. Ms Johnson submitted that many of the opinions expressed by Dr Mustac concerned the ultimate issues of fact to be determined by the trial Judge. I accept that this is indeed the case, but I do not think that the learned trial Judge blindly - as it were - accepted Dr Mustac's testimony without independently bringing her own mind to bear on the issues in question. Reading her Honour's reasons as a whole it seems to me that while she did rely on Dr Mustac's views, there were several other factors - including the demeanour, evidence and overall credibility of the appellant - which persuaded her to come to the conclusion that she did.

10 It was submitted, briefly, that the learned Judge was wrong in stating that Dr Mustac's opinion was substantiated by objective signs. A close examination of Dr Mustac's reports and his oral testimony, however, reveals that he referred therein to at least some objective signs on which he based his views. It is sufficient to mention the appellant's qualities and personality traits of indignation, self-righteousness and determination noted by Dr Mustac. He testified that these were objective signs that the appellant was not depressed. Dr Mustac was cross-examined about the evidence of Dr Shannon, a psychiatrist called on behalf of the appellant, who said that he saw no evidence "suggesting factitious disorder or malingering". It was put to Dr Mustac, in effect, that if he (ie Dr Mustac) were right in his diagnosis, Dr Shannon should have been able to see "at least some observable signs" which would support that diagnosis. Dr Mustac replied "would you like me to give you the signs that I think are present?" Cross-examining counsel replied, "no". In the circumstances I do not think it open for the appellant to argue that Dr Mustac's opinion was not substantiated by the objective signs referred to by him.

11 In the circumstances, the challenge to the reasons given by the learned Judge for accepting the evidence of Dr Mustac fails.

12 The opinions expressed by Dr Mustac played a large part in her Honour's ultimate decision, and it would be appropriate to set them out in some detail. Dr Mustac had no hesitation in expressing the opinion that the appellant's symptoms were deliberately feigned. He was of the opinion that the appellant was malingering and was also suffering from a "factitious disorder". According to the expert evidence, the term "malingering" means the feigning of illness for material gain and the term "factitious disorder" means the feigning of illness for psychological gain. Dr Mustac said:

"The point that I'm making [in diagnosing factitious disorder and malingering] is that there's an effort to emphasise her disability, that there's obviously a conscious effort to describe an intense level of disability which is far out of proportion to what one would expect from anyone with this degree of depression if we look at the psychiatric aspect, or back pain, and that the way that she relates is obviously consciously motivated."

"This is not some sort of psychiatric illness that is undiagnosed and explains this form of behaviour, rather ... there's an intention on her part to create the image of severely disabled individual, and what factitious disorder means is that the person is seeking to present themselves in a sick role; in other words, that they are seeking to appear ill and requiring medical attention. Malingering refers to more than just attempting to obtain the sick role. It refers to secondary gain; that there is some benefit the patient is seeking whether it be financial gain or absence from responsibility and so on and what I have done is just put the two there to describe her presentation."

13 Dr Mustac explained that he could find little objective evidence for the appellant's depression. He said:

"Whereas depressed people seem to be self-critical, tend to be self-demeaning, tend to be uncertain of themselves, tend to lack spontaneity and lack determination, I felt that Mrs Bakovic had all of these features. She was very determined to present herself as disabled. She was very determined to make the point. She would become indignant if in any way her claimed level of disability was questioned. ... Now, that sort of indignation, self-righteousness, determination, is not at all a manifestation of somebody who is depressed. It's the exact opposite in fact."

He said that her conduct generally, which included going shopping, going to coffee, visiting friends, was "not consistent with somebody who has a significant depression". His conclusion was that the appellant's reasons in presenting herself as disabled were "not psychiatrically driven". He said "this is a conscious decision on her part". He went further by saying, "her claim of disability is exploitative".

14 Dr Mustac explained that Dr Shannon had expressed the opinion that "the [appellant's] illness has taken on a life of its own and as a result of this negative cognition she now is unable or fit to work and he sees the prognosis as being much more gloomy than I do." Dr Mustac said that he disagreed with Dr Shannon in this respect. He said:

"I regard the evidence as being clear, both in terms of my examination of her and the history of her attempts to return to work, as being that there is a lifestyle decision on her part, in other words a consciously motivated decision, and I don't see this as some sort of untreated illness which continues to haunt and prevent a return to work or successful functioning. I see far too many inconsistencies in her presentation for that."

He went on to describe the matters that led him to conclude that the appellant was malingering and repeated that he was of the opinion that the appellant was suffering from factitious disorder and was malingering.

15 Dr Mustac was cross-examined at length about his opinions and went into considerable detail in explaining why he believed that the appellant was feigning her symptoms and that she was not currently as depressed as Dr Shannon thought she was. He concluded that as the appellant's state of mind and symptoms were "volitional". He said that the appellant would improve once she decided to do so. He said "Mrs Bakovic can make that decision today, tomorrow, a year ago or two years ago ... any time she wants to... it's a matter of her volitional decision making". Under further cross-examination he said that the appellant's "excessive negativity is something which is under her voluntary control". And he believed "that she is consciously exaggerating and disinterested in rehabilitation".

16 On a first reading of the transcript it appeared to the Court that it was open to argument that a factitious disorder was a psychological (but not a psychiatric) disorder over which the appellant had no control. The Court invited further submissions on this issue. This led to an argument advanced on the appellant's behalf that the learned trial Judge had misunderstood the evidence given by Dr Mustac on this question. Having heard the additional submissions, and having reconsidered the transcript of the evidence, I am satisfied that, by factitious disorder, Dr Mustac had in mind a state of affairs whereby a person makes a conscious, voluntary decision to feign and exaggerate symptoms for psychological advantage; it being open to that person - by an exercise of will - to terminate such behaviour. In the circumstances, I do not think that there was any misunderstanding of Dr Mustac's testimony on the part of the trial Judge.

17 Undoubtedly, the import of Dr Mustac's views was that the appellant was giving a false account of her symptoms. As mentioned, it was submitted on the appellant's behalf that the learned Judge (without making an independent assessment of the appellant's credibility herself) mechanically accepted Dr Mustac's opinion as to the veracity of the appellant, and relied that opinion in rejecting the expert testimony tendered on behalf of the appellant. In considering this submission it is necessary to have regard to her Honour's remarks concerning the credibility issue.

18 The learned Judge made express reference to her acceptance of the opinion of Dr Mustac. She said, "I accept Dr Mustac's opinion that the [appellant] was consciously exaggerating or inventing her symptoms." But it appears from the following remarks that the learned Judge did not rely only on Dr Mustac. Her Honour stated:

"The [appellant] gave an unconvincing account of the extent of her symptoms. Her description of the nature of the pain and the effect on her lifestyle was not persuasive as it lacked detail and consistency. Her physical appearance and demeanour, both in the witness box and in the video surveillance, was at odds with her attempts to present herself as an invalid. Taking all of the evidence into account I find that she has consciously fabricated and exaggerated her pain and symptoms because she perceives that this will be of benefit to her either because of monetary gain or because she prefers an indolent life with friends and relatives feeling obliged to render domestic assistance. Although some of her treating medical practitioners commented on her consistent account I consider that either the [appellant] was adept at fabrication or that practitioners themselves were less than objective because of their relationship with the [appellant]. A number of the medical witnesses commented on the [appellant's] determination to impress them with the extent of her disability.

The [appellant] gave the impression that she had either been coached or had obtained information from other people as to symptoms relating to a sympathetic mediated syndrome in order to provide some answer as to the mystery of why there were no objective medical signs of her complaint. Because of this conscious fabrication some of her accounts of these symptoms to the medical witnesses were not anatomically correct and were inconsistent with the usual progress of such injury. The [appellant] gave the impression of someone who was determined to continue in her lifestyle were (sic) she was not obliged to work or carry out domestic responsibilities but continued to receive a weekly wage by way of worker's compensation payments."

19 A number of criticisms were made on the appellant's behalf in regard to these comments. Firstly, it was submitted that it was wrong to say that the appellant's description of the nature of her pain and the effect on her lifestyle was not persuasive "as it lacked detail and consistency". I am inclined to accept this submission. The evidence given by the appellant in this regard was fairly brief and it is difficult to understand what her Honour had in mind in stating that the evidence "lacked detail and consistency". Nevertheless, it must be borne in mind that to some extent, at least, the impression derived from this kind of testimony is necessarily subjective. If the Judge was at fault in making these remarks, her error, if any, was insignificant.

20 Secondly, it was said that there was no basis on which the learned Judge could have concluded that the appellant had "either been coached or had obtained information from other people as to symptoms relating to a sympathetic mediated syndrome", as these matters were never put to the appellant. In my view this submission is justified. It was inappropriate to make such a far reaching finding without there being any direct evidence to support it and without the allegations having been put in cross-examination to the person concerned. Again, however, I do not think that these remarks affect the learned Judge's credibility findings as a whole. While I consider, with respect, that her Honour went too far in making the observations that she did, they do not detract from her views as to credibility and demeanour, generally, which were graphically expressed as indicated in her remarks which I have quoted above.

21 Thirdly, it was submitted that the finding that the appellant was "adept at fabrication" was "a very extreme finding to make" simply on the basis of observing the appellant's demeanour and testimony in the witness box. Again, I think that there is some force in the submission. It was apparent from the expert testimony led on the appellant's behalf that several medical practitioners, including a psychiatrist and psychologist, believed the appellant to be genuine and not a malingerer. In such circumstances great care was needed before concluding that the appellant was indeed feigning her symptoms and giving false evidence about them. I have previously expressed the opinion that "[t]he fact finding exercise a Judge is required to undertake is often difficult and demeanour alone is often an inadequate and unreliable guide to the credibility and accuracy of evidence": Government Employees Superannuation Board v Martin (1997) 19 WAR 224 at 264. Nevertheless, there is nothing that indicates that the learned Judge did not exercise the requisite care, and in my view it was open to her to make the finding that she did.

22 Ms Johnson submitted that the learned Judge's reasons in preferring Dr Mustac's opinions to those of Dr Shannon were faulty. In this regard, her Honour said:

"I find that Dr Shannon, the [appellant's] psychiatrist has simply accepted her account of the extent of her symptoms and was unable to make a more objective or critical assessment because of his role as a treating psychiatrist."

It was argued that there was no justification for regarding Dr Shannon's assessment as being less reliable than that of Dr Mustac merely "because of his role as a treating psychiatrist".

23 The basis of this submission was that there should be no factual presumption to the effect that the opinions expressed by the treating psychiatrist (or a treating medical practitioner, in general) are less reliable because of the intimate relationship that sometimes arises between patient and doctor. I accept unreservedly the general proposition that no such presumption exists, and a judicial decision based on such a presumption would be tainted by fundamental error. Each case depends upon its own circumstances. In many instances the opinion of the treating psychiatrist or treating medical practitioner will be more reliable than the opinion of a consultant who has seen the patient only once or twice or three times. Frequently, it will be found that a long standing relationship between medical practitioner and patient will enable the medical practitioner concerned to express more reliable opinions, having a greater depth of knowledge and understanding of the patient concerned, than some other medical practitioner called in purely for medico-legal or other short term purposes. On the other hand, it cannot be gainsaid that there will be instances where the close relationship between doctor and patient will result in the medical practitioner being so subjectively influenced that the opinions expressed by him or her will be regarded as less reliable than those expressed by a more objective expert.

24 On a close examination of the learned Judge's reasons I consider that her Honour's decision that Dr Shannon's assessment was affected "because of his role as a treating psychiatrist" fell into the latter category. The learned Judge's words, "I find that Dr Shannon ... has simply accepted her account of the extent of her symptoms", it seems to me, are indicative of a judgment made in regard to Dr Shannon personally, having seen and heard him give evidence, and not one based on a presumption applicable to treating psychiatrists in the abstract.

25 I now turn to the issue relating to the weight of the respective expert testimony led on behalf of the respective parties and her Honour's reasons for rejecting the opinions expressed by the medical practitioners called by the appellant. In this regard it is only necessary to deal with those doctors who sought to explain the appellant's pain symptoms by reference to her state of mind, and who were able to give expert testimony concerning her depression.

26 The appellant led the evidence of Dr Kostov, a consultant psychiatrist. According to him the appellant suffered from a chronic pain syndrome which led to a depressive illness with anxiety depressive syndrome. He explained that "chronic pain syndrome" means "somebody who has continuing pains of varying intensity for at least six months or more". According to Dr Kostov the depression lowered the threshold of pain perception.

27 Dr Raich, a psychiatrist, testified that the appellant "was moderately depressed with a lot of anxiety symptoms and phobic symptoms". She accepted that her opinions were based on what she was told by the appellant. She said, "this is what she is telling me. I mean, I have no other way of knowing".

28 Dr Shannon, the psychiatrist to whom I have already referred, expressed the opinion that the appellant's "main problem" was the pain that she experienced and, "secondary to that", she had "a moderate degree of depression". According to Dr Shannon the pain and the depression interacted with each other and were "intermixed", although the pain was the primary condition. When it was put to Dr Shannon that the appellant's "degree of invalidity" was "consciously motivated" he replied, "I can't agree that it is clearly consciously motivated. I don't know that I have any evidence to substantiate that ...". He was of the opinion that the appellant's reluctance to involve herself in rehabilitation programmes was caused by her fixation that she has a significant physical disability, rather than lack of motivation.

29 Dr Harper, an occupational physician, was of the opinion that it was unlikely that the appellant would ever return to work. He attributed her disability to the accident and considered her complaints to be genuine. Miss Dow, a clinical psychologist, was of the opinion that the appellant was depressed and "increasingly anxious".

30 Dr Rosenthal was a physician in rehabilitation medicine called by the respondent. He was of the opinion that the appellant had developed "activity intolerance" as part of her pain syndrome and had adopted a "chronic illness profile". He was of the opinion that her condition was caused by "psychological factors". He said that these might be the perception of illness, the perception of injury, cultural factors, medico legal factors, and factors related to fear, anxiety, levels of illness conviction, fear of being disabled and fear of never being able to work again. These, he said, resulted in a "chronic anxiety state". Dr Rosenthal was asked what was "driving" the appellant. In reply, he said that pain associated with psychological factors did not necessarily imply that the illness behaviour was deliberately contrived. He explained that illness behaviour that was deliberately contrived fell into two categories, namely malingering and factitious disorder. Dr Rosenthal was not prepared to say whether the appellant's symptoms were genuine or deliberately contrived. He said "I think that is a matter for the Judge".

31 Other doctors, who are not psychiatrists or specialists in occupational matters, also testified that in their opinion the appellant's complaints were genuine and she was unlikely to be cured other than perhaps in the long term.

32 The learned Judge had to weigh this testimony against that presented by the respondent. Her Honour stated:

"In general terms I find that the [appellant's] treating doctors have accepted the [appellant's] account of her symptoms and tried to find medical explanations for them which could not be justified because of reluctance to conclude that she was not genuine."

33 It seems to me, with respect, that this was an entirely legitimate conclusion that was open to the learned Judge on the evidence. It is the case that all the medical practitioners who testified on the appellant's behalf were dependent on the veracity of the appellant for the conclusions to which they came. Once the learned Judge found that the appellant was not a credible person and was deliberately pretending to have symptoms which were not genuine, it was open to her to prefer the opinions of Dr Mustac. It is immaterial, in these circumstances, that the number of expert witnesses who testified on the appellant's behalf far outnumbered those who testified on behalf of the respondent.

34 For the reasons I have expressed, I would dismiss the appeal.

35 OWEN J: I have seen the reasons for decision that Ipp J intends to publish. I agree with his Honour's reasons and with the conclusion that the appeal must be dismissed.

36 In the end it comes down, I think, to a proper appreciation of the evidence of Dr Mustac and to whether it was open to the trial Judge to prefer his evidence over the opinion of other expert medical witnesses. At the outset I was in some doubt on these issues. However, as I understand the medical evidence overall it is open to conclude that the difference between factitious disorder and malingering is in the source of, or motivation for, the adoption or exaggeration of symptoms for which there is no pathological explanation. In the former it may be for some psychological reason. In the latter the explanation is more likely to be monetary. What is common to them both is that it involves a conscious decision to adopt the symptoms and it is within the capacity and control of the person to cease doing so at will. The difference between Dr Mustac on the one hand and other medical specialists, such as Dr Shannon and Dr Rosenthal on the other, is as to whether the appellant possessed the requisite capacity. Dr Mustac said she did. Dr Shannon said she did not and Dr Rosenthal did not address the issue.

37 At the risk of over-simplifying the matter, her Honour concluded that the opinions in favour of the appellant were based almost exclusively on what she had told the practitioners concerned. The view of Dr Mustac was formed on more objective grounds. Once that stage had been reached it was inevitable that the trial Judge's assessment of the appellant's credibility would assume critical significance. As Ipp J has said, there are individual aspects of her Honour's treatment of the credibility issue that could have been more happily phrased. It is not to the point that I may have come to a different conclusion. Indeed, without seeing and hearing the witness it would be inappropriate (in the circumstances of this case) to reach a considered position on that issue. But it is difficult to say, overall, that her Honour was not entitled to arrive at the conclusion that she did.

38 If her Honour's conclusions on credibility are to stand, as I think they must, it follows that it was open to her to prefer the opinion expressed by Dr Mustac. That, it seems to me, is the linchpin on which the ultimate decision rests.

39 STEYTLER J: I have read the reasons for decision proposed to be published by Ipp J. I agree with them. I have nothing to add.