Foweraker v Krishnanantharmoorty & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Esperenza FOWERAKER v Nallia KRISHNANANTHARMOORTY & Anor

1 MASON P: The appellant was injured in a motor vehicle accident on 26 June 1992. She was the driver of a vehicle stopped at lights when a taxi collided into the rear. Liability was admitted by the respondents who were the driver and owner of the taxi respectively. 2 Judge Murrell SC assessed damages in the sum of $47,645.90 made up as follows: s79 (non economic loss, 15%) $17,000.00

Future out of pocket expenses 5,000.00 $47,645.90 The appeal challenges the adequacy of damages. 3 The appellant is a Filipina who was born in 1956. She married her husband in 1979. Between 1979 and 1986 she raised two young children and performed home duties. 4 The appellant's husband is much older than her. A heart condition that developed in the mid-1980s meant that he could not continue as the family's breadwinner. Consequently, the appellant commenced working at Lifesavers in 1986. She was a reliable worker who enjoyed her employment. Her work consisted of repetitive packaging and involved the lifting of weights of up to 11 kilograms. 5 Immediately after the accident on 26 June 1992 the appellant attended the Royal North Shore Hospital. She was x-rayed and discharged with a cervical collar. Dr Grant, a general practitioner who became her treating doctor, diagnosed a whiplash injury to the cervical spine. He referred the appellant to a physiotherapist. 6 On 13 July 1992 the appellant returned to work on light duties and on 11 August she returned to normal duties. During the remainder of 1992 there was one day's sick leave, which occurred on 7 December 1992. The appellant remained in full employment with Lifesavers (later Nestle) until she took voluntary redundancy in mid-1994. 7 Dr Grant noted continuing but improved symptoms when he examined the appellant on 31 July 1992. However, from late 1992 and during 1993 the appellant began to make what the trial judge described as "unusual complaints". She told Dr Grant in September 1992 that she was unable to think properly, to remember friends' names at work and even her son's name. In her evidence in chief the appellant said that her neck pain had been getting worse since the date of the accident and that the pain was constant. She felt as though there was a knife in her neck. She said that she could not raise her right arm above shoulder level and that she could not walk properly. 8 The physiotherapy prescribed by Dr Grant provided only temporary relief. The appellant reported experiencing right shoulder pain, double vision and blurred vision together with headaches. She was sleeping badly. 9 The treatment prescribed by Dr Salmon, a pain management specialist, seemed to provide little or no relief. The appellant used a TENS machine and began to take a wide range of painkillers. Nevertheless she continued to report to her treating doctors that she was restricted in her neck rotation and in her capacity to use her right arm. 10 The doctors appear to have been somewhat baffled by the extent of the condition as reported to them. There were no objective signs. Of course, soft tissue injury can produce extreme symptoms. Some of the experts speculated that there may be a supervening psychiatric problem (see eg Dr Jenkins' report 20 January 1998 and Mr Glancey's report dated 2 June 1997). 11 Symptoms of depression and hysteria led Dr Grant to refer the appellant to Dr Roland, a psychiatrist. However, she appears not to have consulted him or any other psychiatrist. 12 There were other factors which contributed to what became an increasingly distressed and depressed state as reported to and observed by the medical practitioners. 13 The first was the stress associated with the breakdown of the appellant's marriage and the alienation of the appellant from her eldest son. (The appellant's case was that these were themselves factors contributed to by the accident. But there was a live issue on the evidence as to whether or not they were independent factors.) 14 A second matter which was apparently operating adversely to the appellant's wellbeing was the development of a condition which caused episodes of collapsing. The first such episode occurred on 26 November 1993. The appellant was taken to hospital but discharged shortly afterwards. The evidence did not suggest that diabetes was the cause, neither did it link these episodes with the accident. In April 1994 an endocrinologist reported that there was no evidence of hypoglycaemia. Nevertheless these episodes were a major symptom of or contributor to a worsening psychological condition. In a report dated 6 September 1994, Dr Grant described the appellant as "depressed, teary, anxious and experiencing hysterical attacks [which were] jeopardising her job". Immediately after this observation the doctor added: "There are other factors which are doubtlessly greatly influencing her symptoms. An unhappy marriage and an impending job redundancy at some as yet unknown date are contributing significantly to her current psychological state. These circumstances are certainly not ideal in providing a firm basis to recover from her physical complaints suffered as a result of the motor vehicle accident." 15 During the trial two events occurred which contributed to the formation of a strong adverse finding as to credit. 16 The first was "a collapse" that occurred while the appellant was giving her evidence in chief and which led to her being taken to hospital by ambulance. The trial judge, who observed what took place, considered that the appellant had deliberately induced the collapse as a histrionic attempt to bolster her case. The suggestion was put to the appellant in cross-examination. In the absence of medical evidence on the topic, I consider that her Honour was entitled to form this view based upon her own observation. 17 The second matter was more serious. It had been the appellant's evidence, in chief and in the early part of her cross-examination, that she was in constant pain and that the pain always caused trouble walking. Medication helped somewhat, but "I walk like drunk" (Tr 38). She said that driving her car was hard work, because using one hand was very difficult. She could not steer using both hands (Tr 42). She said she was unable to turn her neck independently of her body (Tr 43-44). Pain was constant (Tr 44). 18 The appellant was then confronted with a videotape taken on 29 November and 1 December 1997. This showed her walking jauntily along the street, getting in and out of a car, adjusting her seat belt and driving the car. According to the evidence of Dr Brian, an orthopaedic specialist, the video discloses no difficulty in movement and the use of both hands for driving. We were invited to view this video and have done so. I agree with Dr Brian's assessment. 19 When confronted with this evidence, the appellant sought to explain it on the basis that she had good days and bad days and that she had taken Panadeine Forte shortly before the occasions on which she was filmed. But her Honour was clearly entitled to reject this explanation in the light of the earlier evidence. The video disclosed a completely different woman to that described by the appellant in her own evidence and as reported by her to her treating doctors. It was relevant both as to credit and as an objective demonstration of the range of movements that she was capable of doing. 20 There were other difficulties with the appellant's case, even though it was supported to a degree by the lay evidence of members of her family. Some of the medical witnesses described in their reports what they considered to be histrionic or deliberately feigned behaviour. (I am not suggesting that all of the doctors were of this view.) Dr Brian, an orthopaedic specialist, also reported that the appellant's right arm had a greater girth than her left, a finding consistent with the right dominant arm being used in a normal manner. This was at variance with the appellant's case. 21 As indicated, there was a live issue at trial as to the appellant's credibility and as to her essential claim, which was that the accident had caused or materially contributed to the major physical and psychological symptoms which she reported. 22 The nub of her Honour's reasoning can be discerned from the following passages in her judgment: "Having seen the plaintiff myself, I can understand the difficulties experienced by health care professionals in ascertaining where the truth lies. This creates a forensic difficulty for the plaintiff as the onus lies on her to establish the nature and extent of her disabilities. It will be apparent from the above that I consider that the plaintiff was an unreliable witness who deliberately lied about the nature and extent of her disabilities and deliberately induced the collapse which occurred in the course of the hearing.

Having regard to the evidence to which I have referred and the reports of Dr Fearnside, I am satisfied on the balance of probabilities that, as a result of the accident, the plaintiff did sustain a soft tissue injury to her cervical spine, which rendered symptomatic previously asymptomatic cervical spondylosis. However, because the plaintiff is such an unreliable witness I cannot be satisfied on the balance of probabilities that the symptoms attributable to the rendering symptomatic of the previously asymptomatic condition, are more than mild to moderate. In these circumstances, having regard to the extent of sick leave taken in 1992 and 1993, and the other factors motivating the plaintiff to leave work (see Dr Grant's reports) I am not satisfied that as a result of any orthopaedic disability the plaintiff lost earnings or has sustained a loss of earning capacity beyond the initial period. The plaintiff herself seems to attribute work incapacity to her seizures. As far as the seizures are concerned, these may be partly anxiety based. If so, the anxiety derives principally from matters other than the plaintiff's orthopaedic problems. It is my view that the seizures are largely a conscious invention by the plaintiff." 23 The non-economic loss was assessed as 15 per cent of a most extreme case ($17,000). In the light of the findings, it is hardly surprising that her Honour described the case as a borderline one. Indeed she was possibly generous in her conclusion that she was satisfied on the balance of probabilities that the threshold imposed by s79 of the Motor Accidents Act 1988 had been passed at date of trial (cf Matthews v Dean (1990) 11 MVR 455, Roberts v White [1999] NSWCA 12). 24 Past economic loss was confined to the period June to August 1992 (an agreed figure of $3560). The reason for rejecting the claim with respect to future economic loss appears in the passage quoted above (par 22). 25 Her Honour allowed out of pocket expenses paid to date together with a small lump sum ($5000) for future medication and treatment. She was not satisfied on the balance of probabilities that there was an ongoing need for a TENS machine or physiotherapy. 26 The appellant argued the case before us in person by reference to written submissions. Her oral submissions were given sometimes through an interpreter and sometimes unaided. She sought to tender some recent medical reports but these were rejected. 27 The principal submission was that the trial judge had erred in rejecting the appellant's case as to the level of continuing physical and psychological disability stemming from the accident. 28 This is an appeal by way of rehearing. I have anxiously considered the evidence led at trial. However, the High Court has made it plain that an appellate court must respect the trial judge's advantage in forming an opinion as to credit where that opinion is based upon the opportunity to observe key witnesses under examination and cross-examination over a prolonged period of time. See Abalos v Australian Postal Commission (1990) 171 CLR 167. 29 In my view the learned trial judge was entitled to reject the appellant's claim that the accident contributed to significant ongoing physical and psychological injury in the light of (a) the fact that the appellant returned to her employment and resumed full duties within six months of the accident, continuing until she accepted redundancy in mid-1994; (b) the evidence disclosed in the video; (c) the objective evidence indicating that matters unconnected with the accident (ie the appellant's family situation and the problems with her blood sugar level) were major contributing factors to her unhappy state; and (d) the impact of the credibility findings upon a case in which objective indicia of trauma were largely absent and in which the appellant bore the onus of proof. 30 The appeal should be dismissed with costs and the costs should include those incurred on the day when the parties were directed to appear before me so that the appellant might explain her default in failing to file appeal papers and submissions in time. On that day the original hearing date was vacated. 31 Counsel for the respondent submitted that the costs thrown away should include counsel's costs for the hearing date that had been set aside. I decline to do so because I am not satisfied that costs were wasted on his behalf in view of the fact that he readily acceded to the offer of an alternative hearing date, only eight days later. With the constant pressure of chamber work, I cannot believe that a busy practitioner like him did not put the vacated hearing date to good purpose. 32 GILES JA: I agree with Mason P. * * * * * * * * *

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