Foong v Ghaly; Foong v McLellan

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his Honour's reasons and proposed orders.
2. McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes.
3. MACFARLAN JA: On 2 March 2011 Ms Yena Foong, the appellant, was involved in a motor vehicle accident caused by the fault of Ms Diane McLellan, a respondent. On 26 September 2011 Ms Foong was involved in a further motor vehicle accident, on this occasion caused by the fault of the respondent Mr Osama Ghaly.
4. Ms Foong claimed damages for negligence against the two respondents in separate actions in the District Court. Ms Foong alleged that in each accident she had suffered injuries to her head, neck, back, both arms, both shoulders, both knees and had suffered psychological injuries. She also alleged that she had sustained substantial economic and other loss.
5. After the respondents admitted liability, Ms Foong's claims came before Gibson DCJ for assessment. Of the damages that Ms Foong claimed against each respondent (in excess of $20 million), her Honour awarded Ms Foong $1,250 in each action ([2017] NSWDC 303). Her Honour rejected Ms Foong's evidence that she had been seriously injured in the accidents and found that she had only suffered mild soft tissue injuries from which she recovered within weeks of the two motor vehicle accidents occurring.
6. Ms Foong appeals to this Court against the judgment in each action and, lest it be considered that there is less than $100,000 at issue in each appeal, she also seeks leave to appeal. Ms Foong was self-represented on the appeals, as she was at first instance. Her principal ground of appeal is that her Honour's judgment was "perverse, contrary to the weight of evidence, and … inconsistent with undisputed facts" (Ground 7). The remaining, more particular, grounds are referred to below, as is Ms Foong's application to adduce further evidence on appeal and her challenge to the primary judge's costs judgment.
7. For the reasons given below, Ms Foong's appeals and applications for leave to appeal should be dismissed with costs.

Ms Foong's background

1. The primary judge recorded that Ms Foong was born in Vietnam and was about 58 years of age at the time of the District Court hearing. After living in New Zealand for a period, Ms Foong came to live in Australia in 1996. Her working history has been principally in real estate. In about 2009 she was investigated in relation to trust account discrepancies arising from the sale of a property earlier that year. She had previously been made bankrupt as a result of unrelated financial activities involving her husband.
2. Ms Foong gave evidence that at the time of the March 2011 accident she was operating a real estate business and that, as a result of the accident, she was unable to continue work from about the beginning of June 2011. She told a number of doctors about the injuries she allegedly suffered in the accident. She did not tell them however that her real estate agent's licence was due for renewal on 2 July 2011, that she was unsuccessful in her attempts to renew it and that she was therefore unable to practice as a real estate agent.
3. On 11 May 2010 she suffered a severe injury to her left shoulder when she fell down stairs. She was advised to have surgery on the shoulder but chose not to have it. Prior to 2011, she also had difficulties of a degenerative nature with her right shoulder.

Ms Foong's credit

1. The primary judge noted that a significant issue for determination was whether Ms Foong's evidence that she suffered "consistent unbearable pain" as a result of the two motor vehicle accidents should be accepted. For a variety of reasons as follows, her Honour concluded that it should not.
2. First, the primary judge found that Ms Foong's social media posts following the March 2011 accident were inconsistent with her evidence that she was unable to "do much" in the weeks following the accident. Her Honour found that "[a]ccording to [Ms Foong's] posts on social media, her social and personal life appears to have continued unabated, as did her work and social activities".
3. Secondly, her Honour found that letters dated 2 August 2011 and 28 September 2011 that Ms Foong had written to the government regulators in respect of the investigation concerning her trust account were inconsistent with her evidence that the motor vehicle accidents rendered her unable to work. In the first letter, Ms Foong claimed that she had been "extremely busy". She referred to real estate agency activities in support of that claim. In the second, she asserted that she needed her real estate licence "so I can work", rather than suggesting that injuries suffered in the motor vehicle accidents had precluded her from doing that.
4. Thirdly, the primary judge found that Ms Foong's counsel's conduct of an appeal to the District Court against her Local Court conviction in relation to the trust account matter, which took place after the motor vehicle accidents occurred, was inconsistent with Ms Foong's evidence that the motor vehicle accidents had rendered her unable to work. The effect of what her counsel put to Zahra DCJ on the appeal was that Ms Foong would be able to work to repay the money that she had wrongfully used if she were not subject to the home detention order made against her in the Local Court, and did not make any reference to the motor vehicle accidents or the impact that they may have had on her ability to work.
5. Fourthly, the primary judge had difficulty reconciling Ms Foong's evidence of incapacity with the fact that she had undertaken in 2012 to 2016 significant study in order to obtain an Advanced Diploma of Conveyancing and a Bachelor's degree in Property Economics, as well as allegedly providing 20 hours per week of domestic and study assistance to her son.
6. Fifthly, her Honour considered contemporaneous notes of Ms Foong's general practitioner as inconsistent with Ms Foong's evidence that in the March 2011 accident she suffered a head injury and "lost a few minutes [of] memory". Her Honour also found an inconsistency between contemporaneous ambulance and hospital records on the one hand and Ms Foong's evidence on the other hand that, as a result of the September 2011 accident, she had suffered a head injury and consequent loss of consciousness. On appeal, however, the respondents concede that her Honour may have been in error in this respect.
7. Sixthly, her Honour found that surveillance tapes of Ms Foong's movements during 2012 indicated, contrary to Ms Foong's evidence, that she was "a busy and active woman who was successfully pursuing tertiary education" without the physical disabilities that she claimed.
8. Seventhly, her Honour formed an adverse view of Ms Foong's demeanour when giving evidence.
9. Eighthly, her Honour found that the extensive medical evidence before her: "paint[ed] a consistent picture of [Ms Foong] as a person who claims substantial and serious injury which is unsupported by investigative reports and described by the practitioners who have seen her as being largely feigned."
10. Associate Professor Aggarwal, a neurologist and specialist in rehabilitation and pain medicine, appears to have been the only specialist medical practitioner from whom Ms Foong sought treatment in respect of her alleged motor vehicle accident injuries. Over a long period, he investigated Ms Foong's complaints, including by EEG tests and MRI scans. Her Honour said that Professor Aggarwal's report of 22 December 2015 indicated that he "was satisfied that [Ms Foong] was consciously performing badly throughout [a formal neuropsychological assessment] and that she was 'looking for avenues for compensation' which he considered were unlikely to be fruitful". Her Honour continued: "This renowned specialist had spent nearly three years endeavouring to determine [Ms Foong's] problems. He reluctantly, but politely, came to the conclusion that she was exaggerating her symptoms for the purposes of obtaining compensation."
11. Her Honour found that a report of Dr James Bodel, an orthopaedic surgeon, was of no assistance because the history that Ms Foong had given to Dr Bodel was "totally at variance with [Ms Foong's] very busy life of study and attending proceedings in court". Her Honour took a similar view in relation to the reports of Dr Robert Hampshire, a psychiatrist, and Ms Natalie Windsor, a psychologist, to whom her Honour found Ms Foong had made misleading and untruthful statements.
12. Her Honour made the following observations concerning the conclusions of the medico-legal experts that the respondents called:

• Dr Michael Lim, an occupational physician, concluded that Ms Foong's motor vehicle's accidents "resulted in mild injuries only which had fully recovered and that her ongoing symptoms were 'most probably feigned'". Her Honour continued: "Dr Lim's long and careful reports are of great assistance in the determination of the plaintiff's problems. She has genuine physical disabilities which were pre-existing at the time of the accident, and there is no evidence [that the injuries] she incurred in either of the accidents resulted in any further injury or aggravation to her shoulders or knees. He concludes, and I agree, that what the plaintiff suffers from is an underlying psychiatric disorder or disorders, which he suggested were potentially somatoform disorder, depression and personality disorder. These were unrelated to the accident."
• Dr John Cummine, an orthopaedic surgeon: "did not consider [Ms Foong's] complaints and the disabilities described as reasonable and considered there was no direct relationship between her complaints and the respective accident. He considered that she suffered from underlying pre-existing degenerative disease which, combined with abnormal illness behaviour, had become part of a chronic pain syndrome unrelated to the accident. He confirmed this view in his report of 4 August 2016, noting a series of reports from Professor Mattick, Associate Professor Spira and Dr Dalton, with all of which he was in agreement".
• Associate Professor Paul Spira, a consultant neurologist, "concluded that there were clear features of embellishment of disability and of complaints about severe pain where there was no pain at all. He considered that it was highly unlikely that any of her disabilities (if she had any) resulted from the motor vehicle accident".
• Dr Seamus Dalton, a consultant in rehabilitation medicine, agreed with, what he described as, "the consensus of opinions by other medical practitioners that there was 'significant exaggeration and embellishment of [Ms Foong's] psychological symptoms and cognitive dysfunction'".

Assessment of damages

1. The primary judge did not award damages for non-economic loss as neither of the two Medical Assessment Service assessors found that Ms Foong had suffered any permanent impairment.
2. Consistently with the primary judge's findings referred to above concerning Ms Foong's credit (see [11]-[22] above), her Honour stated that she was "not satisfied that [Ms Foong] has suffered anything other than an amount representing one or two days' absence from work, at most. Dr Lim suggested an absence of up to two weeks might be reasonable". Her Honour continued: "108 There should be no award for future economic loss, as I am satisfied that the plaintiff suffered no compensable injury beyond soft tissue injuries, which resolved within days or weeks of the accident in question. 109 I am prepared to award a modest cushion for past economic loss of $1,000 for each of the two accidents, to allow for the two weeks of absence which Dr Lim thought would be appropriate. That will be the total of the plaintiff's claim for past and future economic loss."
3. By an earlier judgment of 13 September 2017, her Honour had rejected Ms Foong's tender of an expert report of Mr Kenneth Leo, a chartered accountant, on the basis that the report contained no reference to the Expert's Code of Conduct, as is required under r 31.23 and Schedule 7 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Ms Foong sought to tender the report on appeal (an application to which I refer below) but did not identify any arguable basis for concluding that the primary judge erred in exercising her discretion to reject the report. As her Honour recognised, there was a significant question as to whether Mr Leo had properly exposed his reasoning in his report. As well, as the respondents pointed out on appeal, the report appears to have suffered from the deficiency of not having been prepared upon the basis of business records but on the basis of "income tax returns" which had not been submitted to the Australian Taxation Office, but instead were prepared for the purposes of these proceedings.
4. The primary judge declined to award damages referable to domestic assistance provided to Ms Foong after the motor vehicle accidents, as there was no evidence to establish that she received such assistance for at least six hours per week for a continuous period of at least six months (s 141B of the Motor Accidents Compensation Act 1999 (NSW)). Nor did her Honour find that Ms Foong did, in fact, suffer from any disability that required domestic assistance.
5. Her Honour awarded Ms Foong $250 in respect of each accident as a "cushion" in case she needed non-prescription medication for pain relief in the future. Her Honour noted that the respondents' insurers had paid $5,852.24 in respect of Ms Foong's past out-of-pocket expenses.

DETERMINATION OF THE APPEALS AND APPLICATIONS FOR LEAVE TO APPEAL

1. As indicated above, Ms Foong's principal ground of appeal was Ground 7. It is convenient to deal with that first.

Whether the judgment below is perverse, contrary to the weight of evidence or inconsistent with undisputed facts (Ground 7)

1. The primary judge's conclusions were largely founded on her assessment of Ms Foong's credit. Ms Foong therefore has a high bar to surmount for her to succeed in a challenge to them. In effect, it is necessary for Ms Foong to demonstrate that her Honour's conclusions are contrary to "incontrovertible facts or uncontested testimony", or are "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]).
2. Ms Foong has not done this. With one minor exception, she has not made any submissions that might arguably achieve that result.
3. The minor exception is that mentioned at [16] above, where I refer to the respondents having accepted that her Honour's conclusion that Ms Foong did not suffer any head injury or dizziness as a result of the second accident was inconsistent with contemporaneous ambulance and hospital records. The point is not however of significance as those records do no more than suggest that Ms Foong complained of dizziness and "blacking out for ? few seconds". The records do not suggest that the opinions of the various doctors who gave evidence were in any respect erroneous or based on any materially incorrect assumption.
4. Furthermore, this limited matter assumed only a minor role in her Honour's assessment of Ms Foong's credit. There remains a wealth of compelling material that her Honour relied upon to conclude that Ms Foong's evidence should not be accepted. In addition, her Honour, of course, had the advantage of seeing and hearing Ms Foong give evidence and therefore of being able to take into account Ms Foong's demeanour in reaching her conclusions. In my view, no basis for rejecting her Honour's conclusions has been established.
5. For these reasons, Ground 7 should be rejected.

Whether Ms Foong had pre-accident disabilities (Ground 1)

1. This ground asserts that Ms Foong did not have any physical or emotional disabilities before the March 2011 accident. This is inconsistent with the medical evidence and her Honour's findings. No arguable basis for departing from those findings has been advanced.

The insurance claims manager's statement (Ground 2)

1. This ground is expressed as follows: "Mr Stephen Doumanis, the Allianz Claims Manager honestly asked me 'how much' do I 'want for the motor vehicle accident, 26 September 2011?'. I replied honestly, approximately $10,000,000, as that was what I calculated to be my total loss from the accident."
2. Even if this conversation occurred, it could have no bearing on the outcome of these appeals.

Whether the primary judge considered whether the accidents aggravated pre-existing conditions (Ground 3)

1. The primary judge clearly did consider this (see [22] above).

Whether Ms Foong was particularly susceptible to injury (Ground 4)

1. This ground is expressed as follows: "The court must consider the precedent set down in Watts v Rake [1960] HCA 50 and Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 takes a person as they find them and consider the impact of the incident even though the incident has caused harm beyond the scope of what a normal person may have suffered."
2. There was no evidence that Ms Foong was particularly susceptible to harm. In any event, no part of her claim was rejected on the basis that she was.

A statement by the primary judge about Ms Foong's damages (Ground 5)

1. This ground was expressed as follows: "Misdirection by the Judge Gibson at the court below, Her Honour told me that I could 'increase the calculations up or down' on 14 September 2017."
2. Even if her Honour said anything of this character, it is clearly of no relevance to the outcome of the appeals. Her Honour would have been doing no more than indicating to Ms Foong that the level at which she pitched her damages claim was a matter for her.

Whether the primary judge applied an incorrect principle and failed to give adequate reasons for her decision (Ground 6)

1. In this ground, Ms Foong alleges first that the primary judge failed to apply the principle that damages should be assessed in such a way as to place the plaintiff into the position that he or she was in before the alleged tort occurred. Her Honour did not fail to do this.
2. Secondly, as part of this ground, Ms Foong contends that her Honour failed to give adequate reasons for her decision. Her Honour's reasons were however more than adequate and Ms Foong did not identify on appeal any arguable basis for concluding otherwise.

Post-hearing reports of Dr Matthew Sherlock

1. Ms Foong sought to tender Dr Sherlock's statement dated 9 April 2018. Dr Sherlock is a shoulder and elbow orthopaedic surgeon who Ms Foong has consulted on a number of occasions since 3 August 2010. Earlier reports of his were in evidence before the primary judge.
2. Dr Sherlock's statement of 9 April 2018 recounts the history of his consultations with Ms Foong. It is expressed to be an "expert witness statement" but contains no reference to the Expert Witness Code referred to in r 31.23 and Schedule 7 of the UCPR. The statement concludes as follows: "Mrs Foong now has chronic rotator cuff tears in both shoulders, the tears in her left shoulder are the result of a work related injury when she fell down some stairs. The tears in her right shoulder may have occurred due to the motor vehicle accidents in 2011. Mrs Foong has significant pain and weakness in both shoulders and therefore this would affect her ability to lead a normal life."
3. This conclusion does not assist Ms Foong's case as Dr Sherlock attributes her left shoulder injury to her earlier fall, rather than the subject motor vehicle accidents. In his conclusion, Dr Sherlock states that the right shoulder injury "may" have been caused by the motor vehicle accidents, but that observation goes no material distance towards proof of causation of the injury by the accidents. This is particularly the case when, earlier in his statement, Dr Sherlock records that Ms Foong did not make any complaint to him about a right shoulder injury when she consulted him on 12 December 2011 (after the motor vehicle accidents), but rather made her first complaint at a consultation in June 2013.
4. Under s 75A(7)-(9) of the Supreme Court Act 1970 (NSW) further evidence which is not evidence of matters occurring after the date of the hearing may only be admitted where "special grounds" exist. Ordinarily, for such evidence to be admitted: "(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible" (Akins v National Australia Bank (1994) 34 NSWLR 155 at 160).
5. Dr Sherlock's statement should not be admitted on appeal, at least for reasons (1) and (2). As to the first, Ms Foong did not explain why the opinions expressed in Dr Sherlock's statement could not have been obtained before, and utilised at, the hearing at first instance. As to the second reason, as I have said, the evidence does not assist her case.
6. Dr Sherlock's statement does not appear to be based upon consultations or any other matters occurring after the date of the hearing at first instance. However, even if it were, the evidence should not be admitted, at least for the reason that it would not provide any material assistance to Ms Foong's case.
7. Likewise, the tender on appeal of an "Addendum" dated 8 May 2018 to Dr Sherlock's statement should be rejected. Based on a consultation with Ms Foong on that date, Dr Sherlock specifies in the Addendum the likely cost of surgery to Ms Foong's shoulders. As Ms Foong has not established that the need for surgery is related to the subject motor vehicle accidents, the Addendum should be rejected as irrelevant.

Other reports sought to be tendered

1. Ms Foong also sought to tender on appeal reports of Mr Ashish Isaac, a physiotherapist, Mr Kenneth Leo, the accountant referred to in [25] above, and Mr Vincent Romeo, a property valuer. These tenders should be rejected, at least for the reason that the primary judge's findings on damages, which will be upheld on appeal, render these reports as to the quantum of Ms Foong's claimed damages irrelevant.

APPEAL AGAINST COSTS JUDGMENT

1. By judgment of 12 December 2017 ([2017] NSWDC 343), the primary judge ordered that each party pay his or her own costs up until 10 March 2014 and that from 11 March 2014 Ms Foong pay each of the defendant's costs on an indemnity basis. The indemnity costs order was based upon Ms Foong's non-acceptance of Calderbank offers (Calderbank v Calderbank [1975] 3 WLR 586). The defendants in each action offered to pay Ms Foong the sum of $20,000 plus costs and disbursements.
2. Her Honour considered that the offers allowed a reasonable time for acceptance and that Ms Foong's non-acceptance of the offers was unreasonable, as their acceptance would have achieved a favourable result for her in the actions. (Certainly it would have been a significantly better result than that which she ultimately achieved.)
3. Ms Foong has not identified any arguable basis for setting aside her Honour's indemnity costs orders, nor her Honour's decision not to make a costs order in respect of costs incurred prior to 11 March 2014. Her challenge to the orders should therefore be rejected.

ORDERS

1. For the reasons given above, Ms Foong's appeals and applications for leave to appeal should be dismissed with costs.

Amendments 27 November 2018 - Catchwords and [5]: Changed sum of $250 to $1,250. 28 November 2018 - [3]: Date changed from 2 September 2011 to 26 September 2011. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2018