Hoblos v Alexakis

Hoblos v Alexakis - [2021] NSWCA 126 - NSWCA 2020 case summary — Zoe

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Hoblos was injured in a motor vehicle accident in 2015. The respondent was at fault and liability was admitted. The insurer agreed to meet medical and related expenses until February 2018, when a doctor retained jointly by both parties reported his opinion that Mr Hoblos was demonstrating "abnormal illness behaviour". The insurer stopped payments following the receipt of that report. Mr Hoblos brought proceedings in the District Court. The primary judge (Priestley SC DCJ) found that whilst Mr Hoblos may have some kind of injury or disability arising from the accident, his unreliability as a historian of his symptoms and as a witness meant that damages could not be quantified on any rational basis. Accordingly, judgment was entered for the respondent. Mr Hoblos appealed from that decision. The principal issue on appeal was whether the primary judge conflated the tasks of determining liability and measuring damages. Held (per McCallum JA; White JA and Davies J agreeing), allowing the appeal: Notwithstanding evidence of malingering and exaggeration, the medical evidence supported a compelling inference that Mr Hoblos was suffering from a major depressive episode and should be compensated accordingly: per White JA at [48], McCallum JA at [177], Davies J agreeing at [195]. If some injury or disability was established, Mr Hoblos was entitled to damages, however difficult they were to quantify: per McCallum JA at [159], Davies J agreeing at [195]. Remittal to the District Court for a rehearing as to damages should be avoided if possible as the costs of that exercise would in all likelihood be disproportionate to the interest at stake: per White JA at [53], McCallum JA at [181]-[182], Davies J agreeing at [195]. Consideration as to whether this Court could assess damages in the absence of findings by the primary judge including those required by s 126 of the Motor Accidents Compensation Act and where credit findings about the plaintiff may need to be made: per White JA at [54], McCallum JA at [181]-[182], Davies J agreeing at [195].

[3]

Judgment

WHITE JA: This appeal raises two separate but, in the circumstances of this case, related issues. The first is the application of the principle that the burden lies on the plaintiff to prove the injury or loss for which he seeks damages (Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 per Gibbs CJ and Wilson J at 412) where the plaintiff suffers some injury but is disbelieved as to its extent. The second is the legitimate scope for this court to set aside findings of fact by the primary judge based upon the primary judge's assessment of the credibility of witnesses (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22).
The appellant was involved in a motor vehicle collision occasioned by the admitted fault of the respondent. At the time of the accident he was employed as a bus driver by a company known as Redy2Go. He drove smaller buses between Sydney airport and hotels in the city. As McCallum JA records in her judgment which I have had the advantage of reading in draft, his physical injuries as a result of the collision were confined to temporary soft tissue injuries.
The appellant's case at trial was that he suffered severe psychological injuries as a result of the collision and suffered ongoing soft tissue injury that caused continued pain.
The primary judge did not believe the appellant. Nor did his Honour believe the evidence of his then partner, Ms Zena Latifi, who corroborated his evidence.
The appellant was assessed as having a degree of impairment as a result of his injury of seven per cent. As this fell below the 10% threshold, he was not entitled to damages for non-economic loss (Motor Accidents Compensation Act 1999 (NSW), s 131).
Because the appellant sought damages for economic loss for consequential mental harm, he needed to show that he suffered a recognised psychiatric illness (Civil Liability Act 2002 (NSW), s 33).
The respondent's case was that the appellant did not incur any compensable injury in the accident and that his presentation both in court and when seeing doctors was nothing but an act. The respondent's case was that Ms Latifi was a "co-conspirator to this sham." The respondent argued that there was a "… total disparity between the medical evidence and the clinical presentation of the plaintiff." The respondent also relied on surveillance photos.
The primary judge said that the issues in the case fell to be determined by an examination of the medical evidence including determining the extent to which doctors relied on the self-reporting of the appellant. His Honour said that the appellant: "… must establish on the balance of probabilities what injuries and disabilities he suffers from, which of them were caused by the motor vehicle accident, and to what extent do those injuries cause him the economic loss he claims so as to sound in damages."
The primary judge's conclusions were: "Medical evidence 161. The conclusion that I reach on the medical evidence is that it fails to make out the plaintiff's case. I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them. This alone may not always mean that the plaintiff fails. The reason the plaintiff fails here to make out any claim for damages arising from his injuries is because whilst he may in fact have some kind of injury and/or disability arising from the accident, the manner of presentation of the plaintiff, that is his inconsistencies and exaggerations and consequently his unreliability, makes it sheer speculation to determine how that sounds in monetary damages. I am unable to determine any such amount on any rational basis. Put simply, the plaintiff has failed to establish his claim to the necessary standard of proof. 162. The above conclusion is based on the review carried out above of the medical evidence and my assessment of the credibility and reliability of the evidence for the plaintiff. In summary, the medical evidence showed that there was no pathological or radiological support for ongoing physical injury; see most particularly the report of Dr Rowe. The case for an ongoing physical injury rests with accepting there is ongoing soft tissue injury, which in turn depends upon accepting the plaintiff's evidence. The medical evidence is that there is no condition known that could account for the presentation of the plaintiff; see at [76] above. 163. If there was to be any success for the plaintiff it would need to be based on the psychiatric evidence. I have reviewed the reports of the 5 psychiatrists above. For the reasons discussed the reports of Drs Hampshire, Synott and So can be discounted. We are left with the reports of Dr Lim and Dr Smith. Neither was cross examined; Dr Lim could not be due to the MAS legislative provisions; Dr Smith could have been though I note he was a jointly retained expert. No criticism was made of the lack of cross examination of either of these doctors by either party. 164. My analysis of these two reports shows that neither of them can adequately explain the plaintiff's presentation. Dr Lim almost begrudgingly in a kindly way allows for some kind of psychiatric condition, though my view is that conclusion runs counter to other parts of his report. 165. Dr Smith's report is more persuasive. Unlike Dr Lim, Dr Smith does not reach an ultimate conclusion running counter to the earlier assessment of the plaintiff recorded within his report. In my view, Dr Smith displays what I might call a greater amount of intellectual rigour in seeking to determine just what it is that explains the plaintiff's presentation. Dr Smith arrives at the term "abnormal illness behaviour". The plaintiff in submissions relies on this finding as supporting the plaintiff's case. For the reasons stated above when dealing with Dr Smith's report, my view is that finding is against the plaintiff. In short it is a finding that the explanation of the plaintiff's presentation is that he is exaggerating. I accept that finding. Conclusion on credibility 166. The basis for accepting the finding of exaggeration is based not only on the contents of the medical reports, but also on the review of the plaintiff's evidence. I have indicated by a number in parentheses and highlighted in these reasons most (but not all) of the occasions where I found the evidence for or of the plaintiff to be unsatisfactory and where I consider it supports a finding of exaggeration or other unreliability. There were a total of 49 such points."
For the reasons which follow, I do not consider that the primary judge's findings that the plaintiff exaggerated or feigned symptoms and was unreliable, nor his adverse credit findings in relation to Ms Latifi, can be disturbed on appeal. Nor do I consider that the primary judge erred in finding that no damage sounding in damages had been proved if his Honour's assessment of the medical evidence were correct.
However, I consider that the primary judge erred in his assessment of the medical evidence. His Honour assumed that if the appellant exaggerated or feigned his symptoms to psychiatrists, that vitiated their diagnoses, even if they appreciated that that was what he was doing.
The primary judge did not undertake an assessment of damages against the possibility that the appellant might succeed on appeal.
One preliminary matter should be noted but may be set aside. The appellant's claim was that he suffered mental harm as a consequence of his physical injury from the accident. The respondent did not dispute that the appellant suffered some physical injury but said that it was transient. The respondent did not rely on s 32 of the Civil Liability Act 2002 (NSW).
The first ground of appeal was that the primary judge erred in finding that the appellant had suffered no assessable loss or damage having regard to 15 matters which were either findings of the primary judge or matters established by the evidence. The substance of ground 1 was that at para [161] of his judgment, the primary judge found he was not satisfied as to the extent of disabilities suffered by the plaintiff but did not find that the appellant had not suffered some kind of injury or disability. The appellant contended that the preponderance of evidence established that he had suffered injuries and disabilities at least until February 2018.
The appellant submitted that the primary judge failed to apply the "compensatory principle" and improperly treated the assessment of damages for personal injury "as being literal, a sum certain or rational, as opposed to applying the objective to give fair compensation, neither more nor less. The appellant submitted that because the primary judge found it reasonable for the appellant to have sought and obtained treatment including x-rays as a result of his injuries, and therefore impliedly should have found that it was reasonable for him to be absent from work, that ought to have sounded in damages.
The accident occurred on 8 March 2015. The appellant attended on a Dr Alsayed on the following day. The primary judge recorded that in the course of the next week the appellant complained of headache, sleep disturbances with fears, vomiting, neck pain, shoulder pain, pain in the left arm, back pain, left knee pain and left foot pain. X-rays were requested but showed no specific bony cause for the pain. The appellant attended on four other general practitioners within eight days of the accident. The primary judge found that it was reasonable for the appellant to have attended a doctor or doctors frequently after having been involved in a motor vehicle accident. His Honour considered that this material did not advance his consideration of the issues save that it showed a lack of any x-ray support for the appellant's complaints.
There was no objective corroboration of the appellant's reports to doctors of his pain and reported depressed mood, irrational fear and panic attacks, except through Ms Latifi whom the primary judge regarded as also not being a credible witness.
On 9 November 2015 the appellant was seen by an orthopaedic surgeon, Dr Roger Rowe, on referral by the respondent's insurer. Dr Rowe reported that on physical examination the appellant was "markedly overreactive to the lightest of touch over the back and trapezius region" and all over the lumbar region although there was "no local tenderness and no muscle spasm". He reported that the appellant overreacted to the testing of reflexes. Dr Rowe reported that: "His current presentation is a reflection of psychiatric factors only. There is no evidence of residual organic pathology. The prognosis should be determined by a psychiatrist. … The initial strains may well have been the result of the subject motor vehicle accident. … His current restrictions and treatment needs are not the result of any physical injury but are a reflection of psychiatric factors."
Unless the primary judge's fact finding can be reversed on appeal, I do not accept that his Honour erred in his findings at para [161] (quoted above at [9]) that whilst the appellant may have suffered some kind of injury or disability arising from the accident, his unreliability was such that it was sheer speculation to determine how that might sound in damages.
In McGregor on Damages, 21st ed, 2021 (James Edelman) Sweet and Maxwell, the learned author states: "I. THE PROBLEM OF CERTAINTY A claimant claiming damages must prove their case. To justify an award of substantial damages where loss is asserted the claimant must satisfy the court both as to (i) the fact of damage, that is an adverse consequence; and (ii) as to its amount. If the claimant satisfies the court on neither, the action will fail, or at the most the claimant will be awarded nominal damages where a right has been infringed. If the fact of damage is shown but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages; this situation is illustrated by the old cases of Dixon v Deveridge, and Twyman v Knowles. On the other hand, where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams LJ put it in Chaplin v Hicks, the leading case on the issue of certainty: "The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages."…"
The primary judge reasoned that because the appellant's evidence was not credible, his report of symptoms to his doctors was not credible, and further, because the doctors' assessment of psychological injury or pain was dependent upon the appellant's reporting, and because the corroborative evidence of Ms Latifi was not credible, the appellant failed to prove the harm for which he claimed damages. If the premises are accepted, there is no error in that reasoning. On the primary judge's factual findings, the issue was not one of difficulty of assessment of damages where some substantial loss has been incurred, but whether any such loss had been incurred.
This appeal then raises the familiar task of the appellate court both to conduct a real rehearing on questions of fact and to exercise the appropriate restraint due to the advantage of the primary judge, particularly in seeing the appellant and Ms Latifi.
In Fox v Percy, the plurality said (at [26]) that the trilogy of cases (Jones v Hyde (1989) 63 ALJR 349 at 351-352; [1989] HCA 20; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; [1990] HCA 47 at 482-483; and DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78) remains the instruction of the High Court to appellate decision-making (at [26]-[27]). In DeVries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said that if a trial judge's finding depended to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge failed to use or palpably misused his advantage or acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable: at [479].
In Fox v Percy the plurality said: "28. … In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion…"
That does not mean that other errors in fact findings are necessarily immune from review. In Nominal Defendant v Smith [2015] NSWCA 339; (2015) 73 MVR 257 Basten JA said at [11] that: "… while recognising that written reasons cannot provide a complete picture of the circumstances of the trial, or the considerations which may have led to the preferring of the testimony of one witness over another, nevertheless the appellate court is entitled to infer error from the manner in which the testimony was addressed in the reasons, including a failure to refer to factors which appear to the appellate court to be significant."
The primary judge's findings that the appellant was exaggerating or feigning his symptoms were not contrary to any incontrovertible evidence. I doubt that it is glaringly improbable that he would feign symptoms to his doctors and to his former employer to maximise his prospects of obtaining damages from the accident.
None of the psychiatrists whose reports were tendered was cross-examined. This does not mean that this court is in as good a position as was the primary judge to evaluate those reports. The psychiatrists did not have the advantage that the trial judge enjoyed of seeing the appellant's version of events and symptoms challenged. This court does not have the advantage that the primary judge had of observing the appellant.
Nonetheless, the primary judge's fact finding was flawed.
Dr Robert Hampshire provided a report dated 1 February 2016 following a consultation of 20 January 2016.He considered that the appellant was in obvious pain and diagnosed a pain disorder of both organic and psychological causality. He diagnosed the appellant as suffering from PTSD of considerable severity and a major depressive disorder. But Dr Hampshire did not query the appellant's credibility.
The appellant was assessed by Dr Inglis Synott on 1 November 2019. Dr Synott gave a certificate pursuant to Part 3.4 of the Motor Accidents Compensation Act that the appellant had suffered injuries caused by the motor accident that gave rise to a degree of permanent impairment of greater than 10%. He assessed the appellant as suffering from post-traumatic stress disorder and an adjustment disorder with anxiety and depressed mood. When recounting the history given by the appellant, Dr Synott said that "[a]t times, Mr Hoblos was vague about dates and details - one could not be confident in the accuracy of the history". The appellant displayed the kind of bizarre behaviour he exhibited on other occasions. He lay on the floor in the waiting room and lay down during the consultation.
Dr Synott reported: "… PTSD and adjustment disorder are broad diagnostic categories and cover a wide range of presentations and there are no automatic implications simply on the basis of these diagnoses. One should not necessarily assume there is any significant psychiatric impairment or incapacity for employment and the diagnoses are not an automatic contraindication to participating in employment and other life roles - and they do not explain the totality of the situation. In my opinion, psychiatric diagnoses are a simplistic and incomplete conceptualisation of the situation; he describes being overwhelmed by the circumstances and has "given up"; he has lost so many things in his life - with little to hope for in the future."
The respondent relied on a report of a consultant psychiatrist, Dr Selwyn Smith. Dr Smith's report was provided on the joint instructions of the solicitors for the appellant and respondent. Dr Smith's report is dated 27 February 2018. Dr Smith reported: "Mr Hoblos was a most difficult historian. He stated that he could not recall any detailed issues related to his background, current functioning or details of the motor vehicle accident. He spent most of the time throughout the examination lying in a corner of my office. He also frequently stated that he felt that he was going to faint and could not continue with the examination. He was provided with water but only drank a minimal quantity. … Mr Hoblos presented as a bearded, dishevelled man wearing a cap. He did not reveal overt anxiety, agitation, hyperactivity nor combativeness. He was delayed in his responses to me. His speech was slowed and hesitant. His presentation was most dramatic. Mr Hoblos reported being persistently depressed. He described being self contemptuous. He revealed a blunted affect. He was not labile, constricted, fearful nor anxious. He stated that he has experienced "flashback" of the accident. He did not reveal language impairments, obsessions, compulsions nor phobias. He did not report suicidal ideation nor delusions. He stated that his memory was poor and his concentration was impaired."
Dr Smith referred to other medical reports including that of Dr Jeffrey Bogan, a psychologist, who applied a "test of memory malingering", the scores of which revealed an indication of exaggeration of symptoms" and inconsistency in the appellant's account of the accident and subsequent consequences of it.
Dr Smith stated: PSYCHIATRIC OPINION From the history that I have obtained, documentation reviewed and my own clinical examination it is my opinion that Mr Hoblos is a most unreliable historian. The history that he has provided has been clearly noted to be inconsistent by a number of examiners as well as myself. In particular he stated that he was rendered unconscious and was admitted to hospital overnight. He also reported to me that he could not provide details of the accident because his memory was impaired. He also could not provide details of his personal life and in particular the name or age of his child. His presentation at the time of my examination was dramatic and significantly pain focused. He displayed similar presentations to other examiners according to their findings. I have noted a paucity of physical findings by various examiners. I would of course defer any physical symptomatologies to other specialists including orthopaedic surgeons. I have noted no requirement to engage in physical treatments other than the utilisation of analgesic medication. Although Mr Hoblos stated that prior to the accident he was in excellent psychological health, I have noted that in 2010 he presented to a new physician requesting a letter to assist in refunding his airline ticket in the light of a pre-existent history of anxiety and panic attacks. I have noted the psychological test results undertaken by Dr Bogan that clearly demonstrate exaggeration if not malingering of his symptomatologies. In my opinion it is highly unlikely that Mr Hoblos has sustained a head injury and there was no clinical evidence from the documentation that I reviewed that he has sustained cognitive impairment or a traumatic brain injury. Given his statement that he was rendered unconscious this in and of itself in my opinion would preclude the diagnosis of Post Traumatic Stress Disorder. His lack of memory for the accident would also discount the prevalence of Post-Traumatic Stress Disorder. Given his dramatic presentation and the unreliable and inconsistent nature of his account of his symptomatologies it is my opinion that it is more likely than not that Mr Hoblos is demonstrating abnormal illness behaviour. … In my opinion Mr Hoblos's credibility in regard to his symptomatologies taken together with a lack of consistency in his presentation and the grossly abnormal psychological testing results reported by Dr Bogan has caused me to regard Mr Hoblos as demonstrating abnormal illness behaviour. His symptoms are not consistent with a formal psychiatric disorder as defined within the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) of the American Psychiatric Association as a result of the accident that occurred on 8 March 2015. I was also struck by Mr Hoblos's account that he has not improved and in fact has deteriorated both from a psychological and physical perspective and has become completely dependent on his former partner who has to undertake domestic care and continued assistance to him."
Dr Smith did not say what he meant by the term "abnormal illness behaviour". The primary judge considered that this was a polite reference to a person who was embellishing, feigning and exaggerating his or her condition.
However there was no evidence to that effect. As noted above, none of the psychiatrists was cross-examined. On the face of it, "abnormal illness behaviour" is a medical term, not a euphemism. The term was not explained. Nonetheless, if Dr Smith's opinion should be preferred, the appellant did not suffer a recognised psychiatric illness.
Dr Samuel Lim examined the appellant as an approved medical specialist to provide a certificate as to whether the degree of the appellant's permanent impairment as a result of the injury caused by the motor accident was greater than 10%. His report is dated 1 August 2018. He examined the appellant on 24 July 2018. He diagnosed the appellant as suffering a major depressive disorder but certified him as having a permanent impairment which was not greater than 10%. The impairment of the appellant's capacity to work was only one of six factors relevant to that assessment. In relation to the appellant's capacity to work, Dr Lim opined that: "taking into account his physical limitations (ongoing headaches, tinnitus, and pain) I am of the opinion that the contribution from his psychological symptoms in relation to his Major Depressive Episode would prevent him from tolerating full time work or study and from a role that was stressful."
Dr Lim stated: Diagnosis and Causation The assessment of Mr Hoblos was somewhat complicated by a degree of inconsistency observed within the assessment in regard to Mr Hoblos' account of his symptoms and his clinical presentation, and the inconsistency in the reports of his presentation across different assessors. On the whole, I did not feel that his entire presentation and account of his difficulties could be consider credible. With regard to the declared diagnosis of Posttraumatic Stress Disorder, Mr Hoblos himself described symptoms consisting of the intrusive unpleasant recollection of the motor vehicle accident combined with an avoidance of triggers and an increased startling reflex in relation to traffic sounds. This was somewhat inconsistent with both the observation that he did not appear to be troubled or to notice the loud traffic sounds just outside the assessment area and also in the variation in which he described his avoidance of driving as a result of his reported anxiety symptoms. On this basis, I feel that I am not able to reliably diagnose a Posttraumatic Stress Disorder. What appears to be more clear are Mr Hoblos' description of his depressive symptoms. These appear to be somewhat more consistent both within the assessment and across different assessors. Mr Hoblos describes low mood, a pervasive sense of hopeless and helplessness and negative impacts on his social rhythms which would meet the criteria for a Major Depressive Disorder. In relation to causation, Mr Hoblos denies any pre-existing difficulties with his mood. His description of his difficulties with anxiety relating to flying in 2010 were strongly suggestive of an instrumental motivation in obtaining medical dispensation in order to get a refund for the flight. From a temporal perspective, it is likely that Mr Hoblos developed his depressive symptoms following the indexed motor vehicle accident. Furthermore, Mr Hoblos' description of his negative cognitions of his depressive illness, relate to the subsequent deficits he experiences which he attributes to the motor vehicle accident. The accident itself appears to be a very significant for Mr Hoblos. It has become the major attributing factor for his subsequent difficulties. On balance, given the temporal relationship of his depressive symptoms, combined with the content of his depressive ruminations which relate to the consequences of the accident, I feel that, his Major Depressive Episode was caused by the motor vehicle accident. I have noted the submitted diagnosis of an Adjustment Disorder with Anxiety and Depressed Mood. I am redefining this as a Major Depressive Episode taking into account the clinical intensity of his reported symptoms, and the persistent and pervasive nature of his difficulties which would be more consistent with a Major Depressive Disorder.
The primary judge emphasised that Doctor Lim did not consider the appellant's presentation to be credible (and included three of Dr Lim's findings to that effect in his 49 matters that he noted that indicated the appellant's lack of credibility). The primary judge considered that there was an inherent inconsistency in Dr Lim's report in that, on the one hand, Dr Lim did not consider the appellant to be credible and yet the presentation was accepted to establish a major depressive disorder. His Honour found the report to be unpersuasive.
But the implicit assumption in this criticism is that people with major depression do not give a presentation and account of difficulties which can be exaggerated or feigned. There is no basis for that assumption. It is clear that Dr Lim did not consider the appellant's presentation and account of his difficulties to be credible. He nonetheless considered that the appellant's depressive symptoms were credible.
Dr So, a consultant psychiatrist, was a treating doctor for the appellant. The appellant consulted Dr So on eight occasions between 20 March 2018 and 19 February 2019. His report is dated 26 March 2019. Dr So diagnosed the appellant as suffering from chronic post-traumatic stress disorder of moderate severity and chronic major depression in the range of moderate to severe.
Dr So said that the appellant was incapacitated by lethargy, mental preoccupations, mood irritability, lack of confidence, poor stress tolerance and indecisiveness which was consistent with a functional disability from clinical depressive disorder and chronic PTSD.
Dr So agreed with Dr Lim's diagnosis of major depressive disorder, and considered that the appellant also suffered from post-traumatic stress disorder. Dr So did not comment on the appellant's credibility but he had Dr Lim's and Dr Synott's reports.
The primary judge said of this report that it stated little more than a bald conclusion and noted there was no psychiatric testing or psychological testing. The primary judge said there was no detailed record of the appellant's presentation. The primary judge gave little weight to the report.
However Dr So's opinion followed from numerous consultations. It followed from his examination of the appellant. Such a psychiatric opinion following from multiple consultations need not depend on reasoning as distinct from experience and professional intuition.
Dr Lim, Dr Synott, Dr So and Dr Smith differed in their opinions as to whether the appellant was demonstrating a recognised psychiatric disorder. The primary judge preferred the opinion of Dr Smith. He characterised Dr Smith's opinion that the appellant suffered "abnormal illness behaviour" as being no more than a statement that in his presentation the appellant was exaggerating. The primary judge said that he accepted "that finding". But that was not Dr Smith's finding.
The primary judge made numerous findings of the appellant's having feigned or exaggerated his symptoms. The respondent's case below appears to have been presented on the basis that if this attack on the appellant's credibility were sustained, then it should follow that the opinions of the psychiatrists upon whose evidence the appellant relied should be discounted because they relied upon the appellant's self-reporting. That is how the primary judge dealt with the matter. But that was not the evidence. Both Dr Lim and Dr Smith considered that the appellant's presentation to them was not credible, but nonetheless accepted that the appellant suffered either a major depressive order (in the case of Dr Lim) or abnormal illness behaviour (in the case of Dr Smith). In either case that condition meant that the appellant was unable to work. Nonetheless, it is only if Dr Lim's, Dr So's, Dr Synott's or Dr Hampshire's diagnoses are preferred that the appellant is entitled to damages for economic loss (Civil Liability Act, s 33).
My assessment of the medical evidence is substantially the same as that of McCallum JA. I agree with her Honour's assessment that the preponderance of evidence favours Dr Lim's assessment of a major depressive disorder.
The assessment of Dr Lim dated 1 August 2018 and the report of Dr So of 26 March 2019 demonstrate that the appellant's mental harm continued at least to March 2019. His presentation before the primary judge is consistent with his condition continuing to trial.
An earning capacity assessment report prepared by Dr Robin Mitchell, Ms Alicia Tyler, Ms Geraldine Nelson, Mr Andrew Hook and Ms Emma Carter assessed the appellant as having both physical and psychological capacity for full time work on the basis that he had demonstrated willingness to return to his previous employment in a reduced capacity and on the reporters' doubts as to the validity of his self-reporting. But they recommended more extensive testing. I would accept Dr Lim's assessment of the appellant's employment prospects referred to at [37] above.
I agree with McCallum JA that the appellant has not demonstrated an entitlement to damages for domestic care. The primary judge's rejection of the evidence of the appellant and Ms Latifi based on his assessment of their credibility negates such an award.
The appellant's concession that damages might be assessed only up to February 2018 was a fall-back position in case Dr Smith's opinion was also accepted. I see no reason that the appellant's damages should be confined to past economic loss.
As McCallum JA observes the proceeding should not be remitted to the District Court for assessment of damages if that can be avoided.
It is not presently clear to me whether damages can be assessed by this court in the absence of findings by the primary judge (including as to those required by s 126 of the Motor Accidents Compensation Act) and where credit findings about the plaintiff may need to be made. The parties should be directed to provide submissions on the assessment of damages, including as to whether that assessment should be remitted to the District Court. I would not confine the submissions to the matters referred to in paras [188] and [189] of McCallum JA's reasons.
I propose the following orders: 1. Appeal allowed. 2. Set aside the orders of the District Court of 20 December 2019. 3. Direct that within 28 days each party provide written submissions on the assessment of damages in accordance with these reasons, including as to whether damages can be assessed by this court or whether their assessment should be remitted to the District Court. 4. Any submissions in reply are to be provided within seven days thereafter.
The appellant is entitled to his costs of the appeal to date. The determination of the costs of the proceedings below should await the assessment of damages.
McCALLUM JA: Khaled Hoblos was injured in a motor vehicle accident on 8 March 2015. The other driver was at fault. The relevant third-party insurer initially admitted liability and agreed to meet medical and related expenses. That was the insurer's position until about February 2018, when a doctor retained jointly by both parties reported his opinion that Mr Hoblos was demonstrating "abnormal illness behaviour". The insurer stopped payments following the receipt of that report. Mr Hoblos subsequently brought proceedings in the District Court. The insurer admitted breach of duty but did not admit that Mr Hoblos had suffered any loss or damage. The defence alleged that Mr Hoblos had made false and misleading statements amounting to fraud in connection with his claim. At the hearing of the proceedings, the insurer's case was that Mr Hoblos's presentation to medical practitioners from a time very soon after the accident on 8 March 2015 was "contrived" and that his symptoms were "manufactured or at least greatly embellished for the purposes of his damages claim". It was submitted that he was not entitled to any damages.
The primary judge (Priestley SC DCJ) for the most part accepted the insurer's case and entered "verdict for the defendant" (as noted by White JA at the hearing of the appeal, the order should properly have been "judgment for the defendant"). Mr Hoblos appeals from that order.
Although Mr Hoblos's car had what appears to have been a forceful and no doubt frightening collision with a pole, Mr Hoblos escaped with relatively minor physical injuries (temporary soft tissue injuries). The medical evidence at the trial was concerned primarily with his psychiatric condition, as to which different opinions were expressed at different times. The insurer's position at trial and in the appeal was that the case presented a stark choice between, on the one hand, a debilitating major depressive disorder resulting from the accident and, on the other hand, a case of a claimant engaging in an elaborate ruse from the outset. The insurer alleged that Mr Hoblos's partner at the time, Ms Latifi, [1] was a co-conspirator in the sham. The primary judge's conclusion was accordingly heavily dependent upon his assessment of their credibility. However, although he disbelieved Mr Hoblos and Ms Latifi, the primary judge stopped short of making a positive finding in the terms contended for by the insurer, that Mr Hoblos's claim was a complete contrivance from the outset and that he had suffered no disabilities at all. Instead, his Honour's conclusion was framed in terms of a failure to discharge the onus of proof. The critical conclusion is at [161] where his Honour stated: "The conclusion that I reach on the medical evidence is that it fails to make out the plaintiff's case. I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them. This alone may not always mean that the plaintiff fails. The reason the plaintiff fails here to make out any claim for damages arising from his injuries is because whilst he may in fact have some kind of injury and/or disability arising from the accident, the manner of presentation of the plaintiff, that is his inconsistencies and exaggerations and consequently his unreliability, makes it sheer speculation to determine how that sounds in monetary damages. I am unable to determine any such amount on any rational basis. Put simply, the plaintiff has failed to establish his claim to the necessary standard of proof."
Mr Hoblos's principal argument in the appeal was that the primary judge's decision to award no damages in circumstances where his Honour accepted that there may be some disability was erroneous and that the Court should set aside the judgment and enter judgment for the appellant.

[5]

The compensatory principle

Ground 1 gives a tendentious summary of the evidence and the primary judge's findings and asserts on the strength of that summary that the primary judge erred in finding that Mr Hoblos had suffered no assessable loss or damage.
The insurer's written submissions in the appeal went to the trouble of addressing all fifteen sub-paragraphs of that ground in turn. While that was helpful, I do not think it is necessary in this judgment to engage individually with each separate point. The gravamen of ground 1 is that the primary judge misapprehended the compensatory principle. To repeat the critical conclusion at [161], the judge held that, whilst Mr Hoblos "may in fact have some kind of injury and/or disability arising from the accident", his unreliability as a historian of his medical symptoms and as a witness made it "sheer speculation to determine how that sounds in monetary damages".
Mr Hoblos relied in this context on the decision of this Court in Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan (2004) 59 NSWLR 694; [2004] NSWCA 93. I note that there was an appeal from that decision to the High Court. The appeal was dismissed in terms that did not in any way qualify this Court's discussion of the relevant principles: Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15). In the decision of the Court of Appeal, Spigelman CJ said at [698]; [6]: "The compensatory principle is a statement as to the measure of damages. It is not a statement about liability. The gist of an action in negligence is damage, not damages. The former is a reference to loss or injury. The latter is concerned with measurement, leading to a consequential inquiry to determine a sum of money."
Mason P, who dissented, nonetheless agreed with that statement at 716; [126]; and see the discussion of the principle by Ipp JA at 728-731; [214]-[232].
Mr Hoblos's argument is, in substance, that the primary judge's conclusion conflated the tasks of determining liability and measuring damages. In my respectful opinion, the conclusion at [161] reveals that the submission must be accepted. His Honour found that, although Mr Hoblos may have suffered loss or injury, the credibility findings meant that he had failed to prove "how that sounds in monetary damages". The statement from Harriton set out above makes plain that there must be a separate determination as to whether the plaintiff has suffered loss or injury (liability) followed by an inquiry to determine a sum of money (damages) that will fairly compensate the plaintiff for that loss or injury. If actionable damage was established, Mr Hoblos was not precluded from recovering compensation by the uncertainty or unreliability of his evidence. If the assessment of damages was difficult because of the state of the evidence, the judge's task was to do the best he could, as explained in the decision in Harriton in the High Court at [84] (Kirby J; his Honour was in dissent but the principle is well established).
Returning to Mr Hoblos's grounds of appeal, a point to the same effect as ground 1 is raised by ground 2(d), which asserts that the primary judge erred in abrogating his responsibility to undertake an assessment of damages in circumstances where his Honour's conclusion was framed in terms implicitly accepting that some disability had been established ("I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them": primary judgment at [160]).
If the primary judge did accept that some injury or disability was established, the law is clear that his Honour should have proceeded to quantify damages, however difficult that task may have been. However, the determination of this ground is complicated by the fact that, with respect, it is not clear to what extent, if at all, the primary judge was persuaded on the balance of probabilities that Mr Hoblos had suffered any injury. His Honour framed the liability question correctly at [160] ("has the plaintiff satisfied me on the balance of probabilities that he is suffering the injuries and disabilities arising from the accident as he claims") but did not make a clear finding on that issue. He stopped short of finding fraud (at [160]) but concluded only that Mr Hoblos had failed to prove his injuries and disabilities "to the extent" claimed. His Honour did not find that Mr Hoblos had not suffered any injury or disability.
Accordingly, ground 1 raises an anterior factual question as to whether any injury was established. To the extent that that question turns on an assessment of the credibility of Mr Hoblos and Ms Latifa, as noted by White JA during oral argument, it raises the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. However, the evidence that Mr Hoblos had suffered psychiatric injury was not confined to his own testimony and presentation. His case was supported by the opinion evidence of a number of medical experts who had examined him. None of the psychiatrists or psychologists was cross-examined. Two things follow from that. First, apart from the MAS specialists (who cannot be cross-examined), the evidence may be regarded as uncontested, although the same can be said of the insurer's experts. Secondly, this Court is in as good a position as the primary judge to assess their reports.
As to a number of the experts, the primary judge analysed their reports on the assumption that their opinions were based wholly on the self-reported symptoms of Mr Hoblos, whom his Honour did not believe, and that their expert opinions were accordingly of little weight because they were based on assumptions that were not proved. It will be necessary to test that assumption.
In considering whether the evidence established that Mr Hoblos suffered some injury, it is also helpful to consider the alternative hypothesis put by the insurer (that Mr Hoblos's symptoms were completely contrived from a point very shortly after the accident). Counsel for Mr Hoblos asked rhetorically why a man who had previously been happy and healthy, in gainful employment and enjoying the love of a good woman would give that life away for the sake of a damages claim. However, in exploring that question, I am mindful of the fact that his Honour did not have to accept the insurer's hypothesis in order to conclude that there should be judgment for the defendant.

[6]

Assorted other points

The remaining grounds of appeal raised a further 26 separate points under the headings "misuse of materials and evidence", "weight of evidence" and "lack of or inadequate reasons". The insurer submitted that it is doubtful whether ground 3, which takes issue with the weight attached by the primary judge to various aspects of the evidence, is an available ground of appeal in the circumstances of this case. But the primary judge's task of finding the facts did not involve the exercise of a discretion. This Court must give effect to its own conclusion as to the facts, making all due allowances for the advantages available to the trial judge: Fox v Percy at [29].
In any event, as with ground 1, while the insurer's written submissions went to the trouble of addressing each sub-paragraph in turn, and that was helpful, I do not think it is necessary to do the same in this judgment. The points specified in grounds 2 and 3, upon analysis, are more properly seen as arguments in support of the critical question identified above.
Ground 4 is framed as a ground of failure to give adequate reasons but was not developed in argument as an assertion of discrete legal error of that kind. Rather, as with grounds 2 and 3, the points raised appear to be relied upon to support the central contention that the primary judge erred in finding that Mr Hoblos had suffered no assessable loss or damage.
Two of the points in ground 2 (points (b) and (c)) asserted that it was a misuse of evidence, when assessing certain medical opinions, to have regard to events before or after the period to which those medical opinions related, or to "apply the presentation of the plaintiff" in his evidence at the trial to all events that had occurred since the accident. I do not understand the contention to have been that earlier or later events were irrelevant as a matter of principle. As submitted by the insurer, the primary judge was entitled and indeed required to consider all of the events, reports and surveillance material and Mr Hoblos's presentation at various times in order to determine whether he had reported his symptoms truthfully (or reliably) to the various medical experts. That approach was not wrong in principle.
Further, I accept, as submitted by the insurer, that the primary judge undertook a careful and thorough analysis of the medical evidence. That said, his Honour may have unduly complicated that task by considering the medical reports in the order in which he did in the judgment, the logic of which escapes me (apart from the fact that he distinguished between plaintiff's and defendant's experts). If later information was to be taken into account for the purpose of discounting earlier medical assessments, that had to be done in a disciplined way, giving proper consideration to the context in which each medical opinion was reached. For the purpose of undertaking that assessment myself, I have to the extent possible instead analysed the evidence in chronological order.
Apart from making these preliminary points, I have addressed the appellant's individual points below, to the extent that I considered them to be pertinent to the assessment of the issues raised by the appeal.

[7]

Evidence about the applicant's life before the accident

Mr Hoblos was born in 1979 and was almost 36 at the time of the accident. According to a chronology provided to the primary judge, he came to Australia from Lebanon in October 2008. His life in Lebanon was not explored in evidence in the trial but he told one of the medical experts that he was in the police force there and worked as an undercover officer for two years.
In November 2009, some 13 months after Mr Hoblos's arrival in Australia and well before the accident, a general practitioner at a medical practice in Punchbowl, Dr Giurgius, recorded symptoms of "anxiety; stress; shaky; tense; shortness of breath" and a history of "Poor sleep. Depressed mood. Suicidal thoughts." Dr Giurgius prescribed Valium on that date.
In December 2010, a medical centre in Auburn recorded three progress notes in Mr Hoblos's medical records within the space of a week. The first was on 7 December when Dr Islam recorded "dizziness, unwell feeling". The second was on 11 December (a Saturday) when Dr Robat-Meily recorded "1 yr hist of anxiety + depression; scared of travelling; wants letter to refund his ticket; no evidence in this file". That related to an attempt by Mr Hoblos to obtain a refund for a Qantas airline ticket. The doctor did not provide the certificate sought, instead referring Mr Hoblos back to his regular GP. The following Monday, Mr Hoblos went back to Dr Islam, who recorded "suffers from anxiety/panic attacks; scared to fly" and provided a medical certificate.
Mr Hoblos's attempt to obtain a refund for his Qantas ticket became a major credit issue in the trial, not only against Mr Hoblos but also against Ms Latifi. The primary judge addressed it at length in the judgment, including setting out a passage from the transcript in which his Honour took over the questioning of Mr Hoblos, expressed scepticism at one of his answers and reminded him "you are on oath, Sir": at [92]. The judge explained at [166] that he had identified 49 points (numbered throughout the judgment) which he considered supported a finding of "exaggeration or other unreliability". No fewer than five related to the Qantas refund issue, an event that occurred over 4 years before the accident and 9 years before the trial.
In February 2012, Mr Hoblos commenced working as a bus driver. In May 2012, he graduated with a diploma of Information Technology.
In August 2013, Mr Hoblos moved in with Ms Latifi, who was pregnant with their child at that time. Mr Hoblos gave evidence that he and Ms Latifi were "a very happy couple". He said they were expecting a baby and had planned to get married and "just settle down and everything". Mr Hoblos had met Ms Latifi in 2009 through her brother, with whom he played football. Their daughter was born in November 2013. Mr Hoblos said that he used to cook and clean at that time and that, after the birth of their daughter, he was involved in caring for her, changing her nappy and helping make up her bottle to feed her. He said he was very active and had energy to do anything.
There is some, albeit slight, independent corroboration of Mr Hoblos's claim to have been actively involved in housework at that time. His medical notes during that period include several consultations for dry skin and eczema which Mr Hoblos attributed to "doing the dishes".
Ms Latifi described Mr Hoblos before the accident in the following terms: "He had an amazing personality, very decent guy. Is the reason he's - his caring character and respectful personality drew my attention. He was very considerate, very compassionate, very loving, very adaptable. And it's the reason, obviously made a decision to move in with me in the August of 2013, just shortly after I found out when I was pregnant."
In August 2014, Mr Hoblos changed jobs to work with a company called Redy2Go, still as a bus driver. For the period of six months leading up the accident he was working 6 days a week for that company earning $1000 per week. The acting general manager of Redy2Go, Mr Millard, gave evidence as to Mr Hoblos's suitability for that position before the accident: "Okay, so he was - he was very loyal, he was very - he presented very well. He very quickly picked up how to plan routes and do things like this so he was, yeah, he was a good employee in that regard."
Shortly before the accident, on 3 March 2015, Mr Hoblos saw a general practitioner, Dr Hanna, complaining of a sore left knee. Upon examination, Dr Hanna found that Mr Hoblos had pain in the neck, back and left knee "in extreme movement". Mr Hoblos gave evidence that those complaints did not in any way affect his capacity to work.
In his evidence in the trial, Mr Hoblos was asked why he told the doctor that he had a sore left knee. He replied, "just tiredness". Again, the primary judge was sceptical ("It gets tired from doing nothing?"). In fairness, the term "tiredness" readily describes the soreness or stiffness commonly experienced when a leg is kept in the same position for many hours while driving. The judge's scepticism at that point of the evidence is, with respect, difficult to understand. This was an appointment before the accident. It could hardly be part of the alleged sham. Perhaps it was thought that Mr Hoblos was playing down a pre-accident injury but that was never the insurer's case; the insurer disputed that there was anything wrong with Mr Hoblos apart from a dishonest disposition. In any event, that was the first of the 49 credit points numbered throughout the judgment.

[8]

The accident and its immediate aftermath

The accident occurred on 8 March 2015. Medical records made within days after that date record that Mr Hoblos did not lose consciousness. He later said he had, a matter plainly capable of indicating exaggeration or embellishment. Mr Hoblos was able to walk away from the accident but the car was a write-off. He called his uncle, who collected him and took him back to his (the uncle's) house. The plaintiff said that, within two hours, he started feeling pain in the lower back. His uncle then drove him to Ms Latifi's house. He said he was feeling pain and experiencing a buzzing noise in his ear. When he woke the next morning, his feet felt numb and two of his fingers felt numb. Asked how he felt emotionally that morning, he said "that's changed all my entire life. That day." He took sick leave and saw Dr Alsayed at a medical practice at Lakemba. Dr Alsayed recorded "headache, sleep disturbance with fears, vomited, neck pain, shoulders pain on left more and left arm, back pain on left more, the right side also pain due to the double impact, left knee pain no swelling, left foot pain". Mr Hoblos was sent for x-rays and prescribed pain relief medication.
Two days later Mr Hoblos was referred to a psychologist because he could not sleep and was suffering memories of the accident which made him feel scared, "shake a lot" and have short breath. The medical notes for that date record "also symptoms of PSTD (sic), sleeping problems, scared."
The medical notes record numerous further consultations with general practitioners during 2015 and regular prescription of anti-depressants and strong pain relief medication. The insurer submitted to the primary judge that those repeated attendances on doctors were all "part of the act" and that Mr Hoblos's attendance on different doctors demonstrated "doctor-shopping or the creation of a paper trail". The primary judge rejected that submission. I would reject it too. In my view, it is clear from the medical evidence that Mr Hoblos had a psychological response to the accident.
Mr Hoblos gave evidence that, during that time, his personality started to change. He said he lost his appetite, started to be isolated, stopped talking to people and lost connection with friends, family and his daughter. He said he obtained only temporary relief from the pain medication he was given during that time; that physiotherapy was of "no help" and that although he was seeing a psychologist who tried to help him, that also "never helped". He said that he tried to have an MRI of his lower back in May 2015 but that he was "too scared" and "had to stop them too many times".
As to his relationship with Ms Latifi in the months following the accident, Mr Hoblos said "everything changed". He said he wasn't able to control his behaviour and was doing "stupid things", screaming and waking her up at midnight for a glass of water because he felt scared and depressed. The primary judge asked him, as to requiring Ms Latifi to go downstairs and get him a glass of cold water from the fridge, whether that was "a physical thing or a mental thing". He responded that it was both.
As to his relationship with his daughter, Mr Hoblos said "almost - I didn't have that feeling there was anyone there, just I was conscious of myself".
Mr Hoblos said that during that time Ms Latifi was doing everything for him. He said he had problems with his "physical movement at the beginning" such as showering and something to do with his clothes (the transcript is incomplete and that she had to cook for him, take him to the doctor and drive him to the shopping centre.
Ms Latifi's evidence was to like effect. The primary judge did not accept her as a witness of credit and all due allowances must be made for the advantages available to his Honour. I will confine myself to the observation that his Honour's reason for rejecting Ms Latifi's evidence as to the level of care sought or provided during the post-accident period reflected a measure of scepticism which, with respect, I would not share. The primary judge said at [100]: "To be clear this witness is giving evidence about the man the subject of the medical reports canvassed above in which she says he is incapable of moving. He apparently on her account is incapable of getting out of a chair to get a telephone. There is absolutely no medical support for injuries remotely close to this degree of injury or disability. Nor is there any psychiatric material which would suggest that his mental state of health has the effect that he is unable to move at any time let alone any indication of what the length of time of such immobility might be."
That analysis appears to overlook the debilitating impact of severe depression, which should be well understood but is perhaps easily dismissed by those who do not suffer from it or treat it. As may be seen from the criteria addressed in the medical assessment conducted by Dr Lim in accordance with the Permanent Impairment Guidelines, the impact of depression is measured according to impairment of daily personal and social activities which the patient is physically capable of doing. That explains why Dr Rowe, an orthopaedic surgeon retained by the insurer, saw fit to advise the insurer that Mr Hoblos's restrictions and treatment needs were not the result of any physical injury but were a reflection of psychiatric factors and that Mr Hoblos "should be assessed and treated by a psychiatrist."
There was evidence that Mr Hoblos did attempt to return to work during that period. His former employer, Mr Millard, gave evidence that, perhaps weeks or months after the accident, Mr Hoblos came to see him to ask whether he could come back to work. He told one doctor he had even had a two-week trial at that time. Mr Millard gave the following evidence: Q. What - did you form any opinion as to whether the company should re-engage him? A. Well yes. We decided we couldn't. Q. Can you explain to his Honour why you came to that view? A. Because in my opinion when I was speaking to him, he wasn't the same person that was working for us previously. He was very vague. For instance his - he couldn't seem to recall things that he was asked and he certainly, you know, he seemed dizzy. He wouldn't have been able to fulfil the role that he was doing before. Q. Did you notice any difference in his appearance to the person you knew beforehand? A. Yeah. Well, he - I can't really describe it other than to say he seemed a bit like a shell of his previous self. He didn't seem - you know, he - where before he was confident, he certainly wasn't that. He looked, you know, he looked pale but he didn't look like the same Khaled."
That was a powerful account of Mr Hoblos's presentation before and after the accident. The primary judge set that evidence out in a short passage of the judgment listing "matters favourable for plaintiff" but, as submitted by Mr Hoblos in the appeal, does not appear to have attempted to reconcile it with the insurer's hypothesis of a sham.
The insurer submitted that Mr Hoblos's presentation to Mr Millard, which was said to be similar to his presentation when giving evidence in court, was "simply part of the ruse". If Mr Hoblos's approach to his former employer was all part of the plan, it was a cunning plan indeed. The uncontested evidence was that Mr Hoblos asked Mr Millard if he could come back to work and there is a suggestion that he had a trial period at that time. The insurer's hypothesis is that Mr Hoblos did so, not because he actually wanted to return to the employment in which he appears to have been so valued (and taking the risk that the employer might say, "Yes please! Start tomorrow!") but so that when inevitably the insurer defended the action, his former employer, having been fooled by his skilled acting, would give convincing evidence to support his case. In my view, that hypothesis is glaringly improbable.
Mr Hoblos gave evidence that Ms Latifi forced him to move out in July 2015, about three months after the accident. Medical histories given at around that time are consistent with that chronology. Mr Hoblos then stayed with a friend in an area he described as "like a little granny flat that wasn't granny flat". He said the people he stayed with were doing things for him on a daily basis during that period. Those people were not called as witnesses and accordingly it was open to the primary judge to draw an inference that their evidence would not have assisted Mr Hoblos's case. His Honour went a step further and relied on their absence as one of the 49 numbered credibility points. As submitted by Mr Hoblos, the Jones v Dunkel inference should not have been elevated to a positive credibility point against Mr Hoblos (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8).

[9]

Investigation of physical injuries - Dr Rowe (November 2015)

On 9 November 2015, Mr Hoblos saw Dr Rowe. As already noted, Dr Rowe is an orthopaedic surgeon who was qualified as an expert witness for the insurer. He recorded (as at the date of his report) that Mr Hoblos remained under the care of his general practitioner; that he was taking strong pain relief daily; that he was continuing to attend physiotherapy every two weeks but that his symptoms became "worse" with every visit and that he only attended physiotherapy because his general practitioner told him to do so. Dr Rowe also recorded that Mr Hoblos was attending a psychologist, Mr Emad Girgis. A later report from Dr Lim (discussed below) makes reference to a report of Mr Girgis dated 9 September 2015 (two months before Dr Rowe's report) in which it was determined that Mr Hoblos met the full criteria for a diagnosis of an adjustment disorder "with features of Posttraumatic Stress Disorder". However, that report does not appear to be before this Court and may not have been before the primary judge.
Mr Hoblos described symptoms to Dr Rowe that indicated "all his regions of discomfort are becoming progressively worse rather than better". He recorded: "He said that both his neck and back ache constantly all the time. The ache is worse on getting up from the bed or a chair. It is worse if he is lounging on a chair. It is worse with walking so that he has difficulty with walking and is very slow. He said that he has to hold onto rails or furniture. He said that his right leg becomes tired with walking for 10 or 15 minutes."
Dr Rowe also recorded physical symptoms in the left knee and the left foot and noted that Mr Hoblos had "a buzzing in the left ear all the time". Mr Hoblos told Dr Rowe he lived alone in a granny flat owned by a friend; that he was able to wash and dress himself, that food was supplied to him by his friends and that he was able to drive a car for only five or 10 minutes at a time.
Upon physical examination, Dr Rowe recorded that examination of the neck revealed normal alignment "although it was generally held in a somewhat flexed position". He said Mr Hoblos was "markedly overreactive to the lightest of touch all over the back of the neck and trapezius region bilaterally". He said the same of the back: that the whole region was overreactive to the lightest of touch. Examination of the left knee and foot revealed no abnormality.
Dr Rowe also considered various radiological reports which, in summary, revealed no abnormality and no explanatory pathology. He concluded that Mr Hoblos's "initial strains may well have been the result of the subject motor vehicle accident" but that Mr Hoblos's "current restrictions and treatment needs are not the result of any physical injury but are a reflection of psychiatric factors". The only treatment he recommended was by a psychiatrist. He concluded "it is considered that Mr Hoblos does not have any assessable whole person impairment as the result of any physical injuries sustained in the subject motor vehicle accident".
There was also a report from an orthopaedic surgeon, Dr Lee, who assessed Mr Hoblos on 24 October 2015. He diagnosed mild intervertebral disc injury in the cervical and lumbo-sacral spine, noting however that "it did not show up on the MRI scan". He saw Mr Hoblos again on 26 May 2016 and confirmed that diagnosis. In both reports he said Mr Hoblos was not able to return to work. However, those reports did not feature in the appellant's argument and it is unnecessary to consider them further.
Separately, Dr Rowe's conclusion finds some support in a later certificate of an assessor with the Medical Assessment Service, Dr Cameron, a rehabilitation specialist who assessed Mr Hoblos for soft tissue injuries to the cervical spine, lumbar spine, left shoulder and left knee. As at 22 November 2016, Dr Cameron diagnosed soft tissue injuries but made no significant clinical findings and assessed zero whole person impairment for each injury. He noted that Mr Hoblos appeared to have significant psychological and psychiatric problems, but that was not his area of expertise and should be taken to be merely an observation. Appeal ground 2(a) asserts error in the primary judge's understanding of that report but the resolution of that issue does not appear to have any great significance for the appellant's argument.

[10]

Investigation of psychiatric injuries - Dr Hampshire (January 2016)

On 20 January 2016, Mr Hoblos was examined by Dr Robert Hampshire, psychiatrist. The defendant objected to the admission of his report because he has since been removed from the role of practising psychiatrists, twice, for drug abuse and separately for inappropriate behaviour of a sexual kind. The primary judge took the view that, despite his misbehaviour, Dr Hampshire "would still most likely retain the body of knowledge that he had at the time of the report" and accordingly admitted the report. I note that the jointly retained expert, Dr Smith (whose report is considered below), was instructed to disregard Dr Hampshire's report "because of the loss of his credentials".
Dr Hampshire recorded that Mr Hoblos had told him he was unaware of any psychiatric history in the family and that he (Mr Hoblos) did not have a psychiatric illness in his past personal history.
Dr Hampshire stated that the "absolutely dominating clinical feature of [the appellant's] presentation is his pain". After describing the detail of the pain, Dr Hampshire said that the pain devastated Mr Hoblos and had a very significant negative impact on most aspects of his life, disrupting his interpersonal relationship with his girlfriend of whom Dr Hampshire recorded "they now have no intimate love life and the marriage is called off and she lives by herself, although she comes to see him two or three times a week and help or urge him to shower". Dr Hampshire was of the opinion that Mr Hoblos had developed a significant depression. He recorded the results of his mental state examination as follows: "On mental state examination he presented as a man in obvious pain. He could actually walk to the room and sit down for a few minutes only, here or there. At one stage he wanted to lie down in my room. That said, he is a warm and kindly man, who could smile at times. He has a nice interactive interpersonal approach. His affect was very flat and his mood depressed. There is no evidence of any psychotic phenomena in this man and I did not get a sense of his malingering. There were no internal inconsistencies in the history. His cognitive testing is within normal limits and he does not have a brain syndrome"
Dr Hampshire gave the following diagnosis: "This man is suffering from a pain disorder of both organic and psychological causality. He is also suffering from a PTSD of considerable severity, and he is also suffering from a major depressive disorder with marked melancholic but no psychotic features. His depression could be considered to be comorbid to his PTSD, but such is its severity that it deserves a stand-alone diagnosis and management."
Dr Hampshire recommended treatment at a pain disorders clinic. He noted that Mr Hoblos felt "quite helpless" and that he was "completely impoverished and has moved into substandard living in an industrial shed with friends, for which he doesn't pay rent." I note that the primary judge remarked that Ms Latifi had described that accommodation as "a storage facility". His Honour regarded that description to be "just another oddity to add to an increasing number of oddities in this case". It is not clear whether his Honour considered that to be another embellishment in the sham but that is certainly the suggestion. Yet there does not appear to be any basis for his Honour to question that evidence. It is not unknown for impoverished people to have to resort to unusual accommodation.
The primary judge considered the report of Dr Hampshire to be of very little weight because "so much more is known after that time of January 2016 concerning the plaintiff". As already explained, I do not accept (as contended by Mr Hoblos) that it was wrong in principle to have regard to later events in order to assess an earlier report. In my respectful opinion, however, closer attention might have been paid to the untested assumption that the unidentified later knowledge necessarily undermined Dr Hampshire's clinical judgments or his diagnosis. That is particularly so where Dr Smith, on whose report the primary judge placed considerable weight, was instructed to disregard Dr Hampshire's report. The primary judge does not appear to have considered or analysed the possibility that a person with a proper diagnosis of a major depressive disorder might display abnormal illness behaviour at the same time or at a later point in time.

[11]

Evidence of depression coupled with malingering - Dr Baron Levi aka Bogan

On 4 March 2016 Mr Hoblos saw Dr Geoffrey Baron Levi. At the time of the trial Dr Baron Levi was known as Dr Bogan. To avoid confusion, I will refer to him by his former name, which is the name that appears in the documents tendered at trial. Dr Bogan is a neuropsychologist who was retained by the insurer. He provided a report dated 28 April 2016 and a further report dated 9 May 2016. The second report was directed to the doctor's assessment of whole person impairment based on the psychiatric impairment rating scale. It did not feature in the primary judge's reasoning.
In his first report, Dr Bogan reported that he had administered a "test of memory malingering" which he described as "a recognised measure of exaggeration of symptoms or poor effort". He also administered the Beck Depression Inventory. The results of those tests indicated that Mr Hoblos was exaggerating his symptoms. Dr Bogan nonetheless was of the opinion that Mr Hoblos did present with symptoms of depression "although not to the extent that current testing would suggest". He also noted that there was evidence that Mr Hoblos presented with symptoms of depression, anxiety and panic attacks prior to his motor vehicle accident based on the notation in 2010 at the time Mr Hoblos attended to obtain a certificate to support a refund for the Qantas ticket. Dr Bogan also referred to a report of Dr Hampshire which does not appear to be before this Court (it is not clear whether it was before the primary judge) in which Dr Hampshire expressed the view that, given the number of tablets Mr Hoblos took during the day, he had developed a substance abuse disorder. Dr Bogan noted that Mr Hoblos also told him (Dr Bogan) that he was taking a regular cocktail of medication each day and complained that the medication made him feel dizzy and fatigued. Mr Hoblos had told Dr Bogan that he was unable to continue with the assessment for that reason which, as the report explains, prevented Dr Bogan from administering the DASS 42 and auditory verbal learning tests which he had planned to administer.
Dr Bogan concluded: "In summary I am of the opinion that Mr Hoblos presented with symptoms of depression although I suggest the strong possibility existed that he was exaggerating his symptoms. There was evidence that his depression and anxiety pre-existed his motor vehicle accident as evidenced by notations from the Nas Advanced Medical Centre. I would agree with Dr Hampshire that in all likelihood Mr Hoblos had developed a substance abuse disorder given the number of tablets he reportedly took on a daily basis and his complaints of side-effects."
Dr Bogan's second report provided his calculation of whole person impairment based on the findings recorded in his first report. He calculated whole person impairment based on the symptoms of depression identified (and repeating his view that there was some exaggeration of symptoms) at 11%. Because of the exaggeration he said that was at the upper limit.
Dr Bogan's opinion is significant because, although he found evidence of malingering, he also accepted the diagnosis of depression. He did not regard exaggeration or malingering to be inconsistent with depression.

[12]

First report from the Medical Assessment Service - Dr Synott

By November 2016, a dispute as to the degree of permanent impairment resulting from the accident had evidently been referred to the Medical Assessment Service, as contemplated by Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW). On 1 November 2016, Mr Hoblos was assessed by Dr Synnott, a medical assessor with the Medical Assessment Service, for posttraumatic stress disorder and adjustment disorder with anxiety and depressed mood.
The defendant objected to the admission of Dr Synnott's report because it had been superseded by a later report prepared for the purposes of the MAS Scheme; because further information had become available since its creation such as surveillance evidence and other medical evidence which the defendant contended made the report "unreliable"; and because, under the MAS Scheme, assessors cannot be cross-examined.
The primary judge admitted the report, relying on the decision of this Court in Brown v Lewis [2006] NSWCA 87. His Honour noted that the inability to cross-examine a medical assessor was of greater disadvantage to Mr Hoblos as he, equally, was unable to cross-examine the author of the report that superseded Dr Synnott's report, a report by Dr Lim (discussed below). Dr Synnott was of the opinion that Mr Hoblos described experiencing sufficient psychological symptoms in relation to the motor vehicle accident to meet the diagnostic criteria for post-dramatic stress disorder and adjustment disorder with anxiety and depressed mood.
Dr Synnott wrote: "In my opinion, psychiatric diagnoses are a simplistic and incomplete conceptualisation of the situation; he describes being overwhelmed by the circumstances and has "given up"; he has lost so many things in his life - with little to hope for in the future. In my opinion, the current degree of psychiatric impairment will not improve by more than 3% in the next 12 months - with or without medical treatment; he has reached maximum medical improvement; it is appropriate to determine the WPI".
Dr Synnott calculated a whole person impairment of 26% with final percentage permanent impairment of 27%.
Under the heading "Diagnosis and Causation", Dr Synnott stated "although giving a generally coherent and organised history, he was vague about dates and details - one could not be confident in the accuracy of the history". The primary judge noted that proviso but commented that the conclusions of the report "nevertheless seem to be based on an unquestioned acceptance of that history" which his Honour considered was "not sound". He concluded that the report did not give much assistance to the plaintiff. But Dr Synnott recorded that he did not unquestioningly accept the history. Further, part of the history at least was not in dispute. By the time of Dr Synnott's report 20 months after the accident, Mr Hoblos had, as recorded by the doctor, lost his relationship and his job. His presentation as a man who appeared to have "given up" is not implausible in that context.

[13]

First assessment by Ms Memon

On 8 February 2017, Mr Hoblos was assessed by Ms Memon, an occupational therapist, as to his care needs. Ms Memon undertook a second assessment on 11 March 2019 and prepared a second report dated 11 May 2019. Ms Memon gave evidence in the trial and was cross-examined.
The primary judge took the view that the entirety of her report was based on the self-reporting of Mr Hoblos and accordingly that the persuasiveness of the conclusions reached were very much subject to his Honour's view as to Mr Hoblos's credibility. His Honour formed the view that the report did not assist Mr Hoblos. The reasons his Honour gave for reaching that conclusion included his Honour's view that Ms Memon had incorporated into her assessment "some kind of psychological assessment beyond her expertise". That was not put to her in cross-examination. In her evidence-in-chief she stated that, in addition to her training, her experience included "a lot of cases with major depression and psychological issues" due to a range of causes (including accidents). She was not challenged on that evidence; indeed, the cross-examiner repeated it.
Ms Memon did not accept that her opinion was totally reliant on the truthfulness of what she was told by Mr Hoblos and the truthfulness of his presentation. She said if she had totally relied on his reporting, she would have offered Mr Hoblos 24 hour care. The primary judge noted that this evidence amounted to an acknowledgement by Ms Memon of exaggeration by Mr Hoblos and concluded that her evidence identified no basis for arriving at a figure of eight and a half hours per week for care as opposed to the 24 hour a day care presentation. With respect, that analysis illustrates Mr Hoblos's point in the appeal. The fact of exaggeration did not preclude the conclusion that Mr Hoblos had some disability, it just made it difficult to quantify.
In my own assessment, the conclusion that Mr Hoblos failed to establish any need for care was harsh. However, notwithstanding Ms Memon's uncontested experience in evaluating psychological issues, I would accept that the assessment of domestic care needs is in a different category from the diagnosis of a psychiatric condition. I do not think it can be said, in accordance with the principles in Fox v Percy, that the primary judge's conclusion was wrong given that it was based on his Honour's assessment of the credibility of Mr Hoblos and Ms Latifi and the ramifications of that assessment for the evidence of Ms Memon.

[14]

Earning Capacity Assessment Report

On 19 December 2017, Mr Hoblos was assessed by a multi-disciplinary team retained by the insurer to ascertain his earning capacity. A report was prepared dated 23 January 2018. It was noted at the outset of the report that it was a difficult assessment: "Mr Hoblos had indicated that he wanted to lie down, during an earlier assessment in a nearby room. The only room with that facility was my examination room so I saw him straightaway and he spent most of his time subsequently lying down on the examination couch. Mr Hoblos appeared to be in considerable discomfort, and I asked if he wished us to arrange for him to be taken to a nearby hospital, however he indicated that he did not want to, and he wanted to proceed with his assessment."
Other members of the multidisciplinary team noted similar observations of bizarre behaviour by Mr Hoblos during the assessment and expressed doubts as to his reliability as a historian. That is to be contrasted with Mr Hoblos's presentation to Dr Hampshire less than a year after the accident. As already noted, he described Mr Hoblos very differently. After noting that at one stage Mr Hoblos wanted to lie down in the doctor's room, Dr Hampshire wrote: "That said, he is a warm and kindly man, who could smile at times. He has a nice interactive interpersonal approach. His affect was very flat and his mood depressed." The contrast is significant in the assessment of the medical evidence and emphasises the importance of considering the evidence in context and in chronological order.
The primary author of the report, Mr Mitchell, gave evidence in the trial. He found no functional impairment.
The psychologist on the team, Ms Tyler, similarly recorded the difficulty in relying on Mr Hoblos's self-reported symptoms. She noted that he had demonstrated an ongoing willingness to return to Redy2Go in a reduced capacity. She assessed him to have "psychological capacity for work", which she thought should support his well-being. However, her assessment was that he was able to drive only "up to 30 minutes at a time taking a short break after each 30 minutes of driving". She also recommended "procedural duties to reduce cognitive level". Ms Tyler did not give evidence in the trial.
The primary judge considered the report and Mr Mitchell's evidence at some length in the judgment. However, in light of his Honour's conclusion as to Mr Hoblos's credibility, the report did not feature in his Honour's conclusions.

[15]

Jointly-retained expert - Dr Smith

On 20 February 2018, Mr Hoblos was examined by Dr Selwyn Smith, a consultant psychiatrist. He provided a report dated 27 February 2018. Dr Smith was appointed jointly by the parties. Dr Smith's report was the report that prompted the insurer to stop payments for medical expenses from February 2018. It was heavily relied upon by the primary judge to support the conclusion that Mr Hoblos exaggerated his symptoms.
Dr Smith described Mr Hoblos as "a most difficult historian". He said Mr Hoblos could not recall any detailed issues related to his background, current functioning or details of the motor vehicle accident.
Dr Smith's report continued: "He spent most of the time throughout the examination lying in a corner of my office. He also frequently stated that he felt that he was going to faint and could not continue with the examination. He was provided with water but only drank a minimal quantity. Prior to my examination he was observed in the waiting room slumped across a chair. He had to be assisted in walking to my office by his partner Zena. He walked with a markedly antalgic gait."
Dr Smith later described Mr Hoblos's presentation as "most dramatic".
Dr Smith undertook a careful review of the extensive material before him. As already noted, however, he was asked to disregard the report of Dr Hampshire. Accordingly, he was not in a position to assess the deterioration in Mr Hoblos's presentation over the intervening two years since the time of Dr Hampshire's examination. In my assessment, a comparison of the two reports reveals a dramatic deterioration in presentation over that period, from a man who wanted to lie down in the doctor's surgery but was a "warm and kindly man, who could smile at times" and who had "a nice interactive interpersonal approach" to a man with the histrionic presentation described above. All the indications are that Mr Hoblos was spiralling into an abnormal response to his injuries at that time and of course that is the conclusion reached by Dr Smith, but it does not follow that Mr Hoblos did not experience severe depression resulting from the accident.
In the conclusion of the report, Dr Smith reiterated his opinion that Mr Hoblos was "a most unreliable historian". He also noted that, although Mr Hoblos stated that prior to the accident he was in "excellent psychological health", he had presented in 2010 to a new physician requesting a letter to assist in refunding his airline ticket in the light of a pre-existent history of anxiety and panic attacks. I pause here to note that, although the insurer sought to rely on the Qantas saga as a previous instance of telling lies to doctors to gain a financial advantage, the primary judge did not accept that submission. His Honour did, however, count Mr Hoblos's evidence on that issue against him (and Ms Latifi's, evidently on the assumption that she knew he had previously suffered from anxiety and panic attacks) as "an effort by the plaintiff and [Ms Latifi] to distance themselves from the plaintiff having given, on two occasions, a pre-accident history of anxiety and depression": at [94]. Why Mr Hoblos would seek to distance himself from a medical history consistent with his later presentation was not explored. The insurer did not seek any deduction for pre-accident depression; its case was that there was no depression.
Returning to Dr Smith's report, he noted the test results obtained by Dr Bogan which clearly demonstrated exaggeration of his symptomatologies, if not malingering. However, he did not in that part of the discussion refer to the same practitioner's acceptance that there was some depression.
Dr Smith concluded: "Given his dramatic presentation and the unreliable and inconsistent nature of his account of his symptomatology is it is my opinion that it is more likely than not that Mr Hoblos is demonstrating abnormal illness behaviour."
He disagreed with Dr Synnott's diagnosis of post-traumatic stress disorder and stated his opinion that "caution needs to be applied in definitively stating that Mr Hoblos has experienced a formal psychiatric disorder such as post-traumatic stress disorder or an adjustment disorder". He concluded his opinion as follows: "In my opinion Mr Hoblos's credibility in regard to his symptomatologies taken together with a lack of consistency in his presentation and the grossly abnormal psychological testing results reported by Dr Bogan has caused me to regard Mr Hoblos as demonstrating abnormal illness behaviour. His symptoms are not consistent with a formal psychiatric disorder as defined within the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) of the American Psychiatric Association as a result of the accident that occurred on 8 March 2015. I was also struck by Mr Hoblos's account that he has not improved and in fact has deteriorated both from a psychological and physical perspective and has become completely dependent on his former partner who has to undertake domestic care and continued assistance to him."
Dr Smith considered that Mr Hoblos did not need psychiatric treatment and indeed was of the opinion that would "only reinforce his disabled mode of functioning."

[16]

Referral to a treating psychiatrist in 2018 - Dr So

Mr Hoblos's general practitioner must have taken a different view. In March 2018, he was referred to Dr Eddie So, a consultant psychiatrist. In a report a year later dated 26 March 2019, Dr So recorded that Mr Hoblos first consulted him on 26 March 2018 and on seven "subsequent" occasions (one predating the first), the last consultation being on 19 February 2019. Dr So diagnosed post-traumatic stress disorder which was chronic and of moderate severity and major depression, also chronic and "moderate to severe".
Dr So reported: "The patient presented to the first consultation with sleeping disturbances, irritability, nauseation, loss of appetite, extreme lethargy, crying spells and lack of interest. On subsequent review, symptoms of palpitations, recurrent nightmares, intrusive thoughts and behavioural avoidance were identified. Findings from serial examinations reveals that the patient suffered from depressed mood, mild psychomotor retardation, flattening of affect, without pervasive nihilism or concrete suicidal ideations. Mr Hoblos has remained unwell and disabled with chronic multiple mental and physical symptoms, despite ongoing treatment. He has not been able to drive since the injury. He has not been able to return to his previous capacity as a professional bus driver."
Dr So concluded: "In my opinion, Mr Hoblos is currently incapacitated by lethargy, mental preoccupations, mood irritability, lack of confidence, poor stress tolerance and indecisiveness, which is consistent with the functional disability from clinical Depressive order and chronic PTSD. Mr Hoblos is unfit to compete for open employment".
The primary judge dismissed Dr So's report on the basis that it stated little more than a "bald conclusion". In the appeal, Mr Hoblos submitted that remark was a bald conclusion on the part of the primary judge. Addressing the passage of the report set out immediately above, the primary judge commented that there was no psychiatric testing or psychological testing and no detailed record of the presentation of the plaintiff. For that reason, his Honour was of the view that "little weight" could be given to the report. With respect, that conclusion suggests his Honour overlooked the fact that Dr So was not called as an independent expert witness; he was Mr Hoblos's treating psychiatrist. He was not required for cross-examination. He treated Mr Hoblos for a period of almost a year. Further, he expressly said that he agreed with the diagnosis given by Dr Lim, for the reasons stated by Dr Lim. It is difficult in the circumstance to see how the reasons given by the primary judge warranted the conclusion that the report was of little weight.

[17]

Pain and Trauma Clinic with Dr Emad Girgis in March 2018

As already noted, the report of Mr Emad Girgis referred to in Dr Lim's report does not appear to be before this Court (it is not possible to ascertain whether it was before the primary judge). However, Mr Hoblos's evidence included a letter from Mr Girgis dated 28 March 2018 addressed "to whom this may concern". The letter identified Mr Girgis as a clinical psychologist at the Pain and Trauma Clinic. The author records that Mr Hoblos "presented with symptoms of low mood irritability" (it does not say when) and reported insomnia/nightmares/flashbacks, lack of appetite, fatigue and lack of concentration and memory. Mr Girgis states "based on his presenting symptoms and psychological testing [not specified or explained], Mr Hoblos continues to suffer from post-traumatic stress disorder." The letter further asserts (again without explanation) that Mr Hoblos "has developed this disorder as a result of the MVA he was involved in".
The letter states: "Mr Hoblos's current psychological well-being has been exacerbated by his difficult and distressing life, such as the termination of his relationship last year. Mr Hoblos also reported that it left him homeless and sleeping in a car. He attended the clinic in a distressed and dishevelled manner."
In his discussion of Dr Lim's report (considered below), the primary judge appears to have mistaken those remarks as having been written in the first report dated 9 September 2015 rather than on 28 March 2018. His Honour commented that whereas Mr Girgis had recorded that Mr Hoblos's psychological well-being had been exacerbated by the termination of the relationship "last year", other evidence showed the relationship "intact in 2014". His Honour counted that as one of the 49 credit points against Mr Hoblos. However, as at that 28 March 2018, a statement that the relationship had terminated "last year" was consistent with other evidence.
The primary judge also considered Mr Hoblos's description to Dr Girgis (recorded by Dr Lim) of being "homeless" and having to sleep in a car as "something of an overstatement" given that it was a reference to his living at a friend's home with access to indoor facilities and apparently "for no more than a month sleeping in his vehicle at that property". For my part, I would have no difficulty describing a person temporarily staying with a friend and sleeping in a car at the friend's property (which would be akin to "couch-surfing", if not worse) as "homeless". Mr Hoblos was not claiming to be a vagrant beggar. It was true, and indeed appears to have been common ground, that Ms Latifi had asked him to leave her home, following which he had no secure tenure of accommodation and for a period slept in his car.

[18]

Further medical assessment conducted by Dr Lim in July 2018

As already noted, Dr Synnott had in November 2016 certified permanent impairment based on psychiatric injuries of 27%, which meant that Mr Hoblos met the threshold for damages for non-economic loss under s 131 of the Motor Accidents Compensation Act 1999 (NSW). Following the receipt of Dr Smith's report, the insurer sought a further medical assessment from the Medical Assessment Service evidently based on that new information. The matter was referred to Dr Lim, who assessed Mr Hoblos on 24 July 2018. Following a careful review of all of much of the material to which I have referred and more, Dr Lim provided a detailed statement of his conclusions as to diagnosis and causation. Rather than attempt to summarise those conclusions, it is appropriate to set out the whole of the relevant passage: "Diagnosis and Causation The assessment of Mr Hoblos was somewhat complicated by a degree of inconsistency observed within the assessment in regard to Mr Hoblos' account of his symptoms and his clinical presentation, and the inconsistency in the reports of his presentation across different assessors. On the whole, I did not feel that his entire presentation and account of his difficulties could be considered credible. With regard to the declared diagnosis of Posttraumatic Stress Disorder, Mr Hoblos himself described symptoms consisting of the intrusive unpleasant recollection of the motor vehicle accident combined with an avoidance of triggers and an increased startling reflex in relation to traffic sounds. This was somewhat inconsistent with both the observation that he did not appear to be troubled or to notice the loud traffic sounds just outside the assessment area and also in the variation in which he described his avoidance of driving as a result of his reported anxiety symptoms. On this basis, I feel that I am not able to reliably diagnose a Posttraumatic Stress Disorder. What appears to be more clear are Mr Hoblos's description of his depressive symptoms. These appear to be somewhat more consistent both within the assessment and across different assessors. Mr Hoblos describes low mood, a pervasive sense of hopeless and helplessness and negative impacts on his social rhythms which would meet the criteria for a Major Depressive Disorder. In relation to causation, Mr Hoblos denies any pre-existing difficulties with his mood. His description of this difficulties with anxiety relating to flying in 2010 were strongly suggestive of an instrumental motivation in obtaining medical dispensation in order to get a refund for the flight. From a temporal perspective, it is likely that Mr Hoblos developed his depressive symptoms following the indexed motor vehicle accident. Furthermore, Mr Hoblos's description of his negative cognitions of his depressive illness, relate to the subsequent deficits he experiences which he attributes to the motor vehicle accident. The accident itself appears to be very significant for Mr Hoblos. It has become a major attributing factor for his subsequent difficulties. On balance, given the temporal relationship of his depressive symptoms, combined with the content of his depressive ruminations which relate to the consequences of the accident, I feel that, his Major Depressive Episode was caused by the motor vehicle accident. I have noted the submitted diagnosis of an Adjustment Disorder with Anxiety and Depressed Mood. I am redefining this as a Major Depressive Episode taking into account the clinical intensity of his reported symptoms, and the persistent and pervasive nature of his difficulties which would be more consistent with a Major Depressive Disorder."
Dr Lim certified a whole person impairment of 7%. As noted by the primary judge, the effect of that report was to supersede the report of Dr Synnott, so that Mr Hoblos no longer met the threshold for damages for non-economic loss.
As explained by Dr Lim in the lengthy passage extracted above, although he felt he was not able reliably to diagnose a Posttraumatic Stress Disorder, he accepted that Mr Hoblos had suffered from a Major Depressive Episode caused by the motor vehicle accident. That conclusion was founded on a clinical examination and a careful consideration of a wealth of medical material, importantly including Dr Smith's report.
The primary judge found Dr Lim's reasoning unpersuasive because of what his Honour regarded to be an inherent inconsistency in the report in noting that the plaintiff's presentation was not credible but accepting it as the basis for a diagnosis of a Major Depressive Disorder. That analysis makes the untested assumption that a patient whose presentation is not credible cannot reliably be diagnosed with a psychiatric condition. For reasons explained later in this judgment, that assumption is illogical and inconsistent with three of the expert opinions in evidence before the primary judge.
In his summary of the medical evidence, the primary judge expressed the view that Dr Lim's report could not "adequately explain the plaintiff's presentation". His Honour said at [164]: "Dr Lim almost begrudgingly in a kindly way allows for some kind of psychiatric condition, though my view is that conclusion runs counter to other parts of his report."
With respect, that is a misreading of the report. Dr Lim was careful to explain that he did not feel that Mr Hoblos's entire presentation and account of his difficulties could be considered credible and accordingly that he felt unable reliably to diagnose a post-traumatic stress disorder. However, as to symptoms of depression, he considered those to be more consistent both within the assessment and across different assessors. As submitted by counsel for Mr Hoblos at the hearing of the appeal, Dr Lim did not "allow for some psychiatric condition", as the primary judge put it at [164]. He made a positive diagnosis of a major depressive disorder. There was no basis to infer that he did so "begrudgingly in a kindly way". With respect, that was a serious aspersion to cast on the professionalism of a medical expert employed by the Medical Assessment Service.

[20]

The false dichotomy posited by the insurer's case

The determination as to what inferences can properly be drawn (or rejected) from the medical evidence in light of the judge's credibility findings raises an interesting question as to the intersection between medical and legal expertise. It must be accepted, of course, that the tribunal of fact in legal proceedings is never bound to accept any expert evidence. However, in my view, the insurer's case invited the primary judge to reject cogent expert medical evidence by applying a legal construct which the evidence indicates is a medical fallacy.
The legal proposition is a familiar one. The opinions of the medical experts were based on assumptions derived wholly from the subjective history given to the experts by Mr Hoblos. That is not uncommon in the case of psychiatric conditions; indeed, the converse is rare. Psychiatric conditions do not readily lend themselves to objective testing. The untested premise of the insurer's case is that, if Mr Hoblos is an unreliable historian who cannot be believed, the assumptions on the strength of which the various medical opinions were expressed fall away and those opinions carry no weight. But the proposition that a person who is exaggerating or feigning symptoms or behaving in a fashion that is not explained by any objective medical evidence could not possibly be suffering from a depressive disorder is rejected in a number of the medical reports in the case. As I have explained, three of the medical experts who gave a psychiatric diagnosis or psychological assessment did so after noting the apparent unreliability of aspects of the history provided (Dr Bogan, Dr Synnott and Dr Lim). The neuropsychologist, Dr Bogan, did so after conducting tests that indicated malingering.
With respect, the primary judge never grappled with the false syllogism underlying the insurer's case. The overwhelming weight of the medical evidence revealed that the insurer's case posited a false dichotomy; Mr Hoblos either has genuine symptoms of depression or he is lying. If he has had the wit to exaggerate and embellish his symptoms, he must have a healthy mind. As I have explained, the medical reports proceed on a different premise and it is a medical premise: that Mr Hoblos's presentation, with all its inconsistencies, bizarreness and embellishment, was not mutually exclusive with a diagnosis of depression. The assessment of such matters is the bread and butter of psychiatrists. It is open to a tribunal of fact in a legal proceeding to conclude that a medical expert was misled but lawyers should be wary of dismissing such medical assessments where they are reached bringing to bear clinical experience and medical expertise.

[21]

The improbability of the insurer's hypothesis

I have already noted that the insurer did not have to prove as a positive proposition that Mr Hoblos was nothing more than a malingerer of able body and mind in order successfully to defend the proceedings. The case was determined as a matter of onus and it was Mr Hoblos who carried the onus. It is nonetheless informative to assess the insurer's hypothesis.
If Mr Hoblos's claim was all a ruse, it was at once poorly conceived and brilliantly executed. It was method acting taken to its perfect extreme. Over a period of five years, Mr Hoblos lost his job, lost his partner, lost his home, allowed himself to rely heavily on the goodwill of others, stopped interacting with his infant daughter, took significant quantities of prescription drugs, stopped playing football, became dishevelled and took to behaving oddly in his presentation to all manner of people, slept in a car, slept in the presence of medical practitioners who could have supported his case and, in the denouement of this extended performance, behaved so bizarrely during the hearing that it plainly became a source of irritation to his ultimate audience, the primary judge. In all that time, on the insurer's hypothesis, he was playing a deceitful game during which he barely dropped his guard except as depicted in a few moments of surveillance that went no further than to capture exaggeration in the description of his symptoms where a degree of exaggeration was recognised by a number of the medical experts. He was not caught on film returning to the soccer field or joyfully swinging his toddler above his head. But according to the insurer, the sham was unsuccessful because he played it too well. He became ridiculous, such that no one should believe his performance.
The alternative hypothesis posited on behalf of Mr Hoblos is that, while it is accepted that he has exaggerated his symptoms, exaggeration and histrionic behaviour are not inconsistent with a diagnosis of depression.

[22]

The weight of the evidence

Mr Hoblos submitted that the preponderance of expert evidence supports the existence of ongoing loss and disability due to psychiatric illness (debilitating depression) up until around February 2018. I agree. Mr Hoblos was assessed by two psychiatrists during that time (Dr Hampshire and Dr Synnott) and one who diagnosed depression after that time (Dr Lim). His treating psychiatrist, Dr So, agreed with Dr Lim's diagnosis of depression and provided treatment for that condition over a period of just under a year from March 2018.
Dr Hampshire was the first to diagnose depression, in January 2016, less than a year after the accident. He did not see signs of histrionic behaviour - he saw a man who smiled and had "a nice interactive interpersonal approach". Two months later in March 2016 the neuropsychologist, Dr Bogan, found evidence of malingering but still accepted the diagnosis of depression. In November 2016 Dr Synnott noted that "one could not be confident in the accuracy of the history" but still diagnosed PTSD and adjustment disorder with anxiety and depressed mood as at November 2016.
While the position is not entirely clear, it appears that Mr Hoblos saw the psychologist, Mr Girgis, from at least September 2015, when he evidently formed the view that Mr Hoblos was suffering from PTSD, until about March 2018 when the insurer stopped meeting medical expenses.
Dr Smith formed his opinion that Mr Hoblos was demonstrating abnormal illness behaviour in February 2018. His report indicates that, by that time, Mr Hoblos was presenting in an abnormal, dysfunctional way that was not able to be explained by any objective medical evidence. It seems likely that his mental state had been spiralling for some time up until that point. I accept that it is difficult from that point to disentangle Mr Hoblos's dysfunctional presentation from his psychiatric condition resulting from the accident. That is not to say he was not depressed before that point and for a period after. What Dr Smith's report establishes is that, by early 2018, the symptoms of Mr Hoblos's depression were becoming obscured by his abnormal response.
In July 2018, five months after Dr Smith's damning assessment, Dr Lim also questioned the reliability of the history. He did not consider that Mr Hoblos's "entire presentation and account of his difficulties could be considered credible" and did not agree with the diagnosis of PTSD in that circumstance. However, Dr Lim still considered that there had been a Major Depressive Episode caused by the motor vehicle accident.
Dr So, who treated Mr Hoblos for a year between early 2018 and early 2019, confirmed his diagnosis of PTSD and major depression at the conclusion of that period. As to the diagnosis of major depression, he agreed with Dr Lim and with Dr Lim's reasoning.
Dr Smith's report was based on an examination that fell between Dr Bogan and Drs Lim and So. There is no doubt that he provided a damning report. The primary judge expressed the view at [53] that he was "well-informed and has perhaps as much information as any doctor other than for not knowing of the surveillance, a matter which supports his conclusions." However, Dr Smith obviously did not have the reports of Dr Lim or the treating psychiatrist, Dr So.
Dr Smith expressly excluded a diagnosis of post-traumatic stress disorder, disagreeing with Dr Synnott on that issue. He then said that he had not diagnosed Mr Hoblos with a somatic symptom disorder or a chronic pain disorder because Mr Hoblos's account of his symptoms "clearly requires further closer examination."
His conclusion is set out above but repeated here for convenience: "In my opinion Mr Hoblos's credibility in regard to his symptomatologies taken together with a lack of consistency in his presentation and the grossly abnormal psychological testing results reported by Dr Bogan has caused me to regard Mr Hoblos as demonstrating abnormal illness behaviour. His symptoms are not consistent with a formal psychiatric disorder as defined within the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) of the American Psychiatric Association as a result of the accident that occurred on 8 March 2015. I was also struck by Mr Hoblos's account that he has not improved and in fact has deterioriated both from a psychological and physical perspective and has become completely dependent on his former partner who has to undertake domestic care and continued assistance to him."
It is not clear from that conclusion whether he considered and excluded the possibility of Mr Hoblos suffering from an episode of depression as later diagnosed by Dr Lim.
The primary judge noted a difficulty with the report that the label "abnormal illness behaviour" was not expressly defined. It is clear enough from the conclusion set out above that it is not a formal psychiatric disorder defined in DSM 5. There was no explanation in the evidence in the trial as to what might cause a person to demonstrate abnormal illness behaviour, nor as to whether it is inconsistent with depression resulting from a motor vehicle accident.

[24]

Damages

As to damages, Mr Hoblos's written submissions contended that the matter would need to be remitted for retrial, citing the decision of this Court in Lloyd v Thornbury [2019] NSWCA 154 at [157]. However, the submissions also included suggestions as to how this Court might assess damages. At the hearing of the appeal, it was common ground was that it would be vastly preferable to avoid remitting the matter if possible. The parties expressed their respective positions as follows: MCILWAINE [counsel for Mr Hoblos]: It's true that Mr Rewell has been able to pick inconsistencies here there and elsewhere, but when you look at the matter overall, entirely, the appellant, in our submission, has discharged the onus of proving that the psychiatric illness that he suffered was real, is real and was caused by the accident. They're the submissions that we would make. And assuming those submissions were to find favour with the Court, the question of course is what should happen to this matter. We have made submissions as to how damages could be assessed, partially. Otherwise, if credit is such an important issue in this case, perhaps it needs to return for a new trial, which would be most regrettable. I don't know if Mr Rewell has got any view about that? Do you have a view about that, Mr Rewell, or-- REWELL [counsel for the respondent]: Well, we would obviously submit that the Court would be extremely reluctant to send this back for a new trial, given the nature of the case and given the time already spent. Of course our primary submission is that it's not necessary to do so.
Mr McIlwaine's submission indicates that, contrary to what was put in writing, Mr Hoblos would be content for this Court to assess damages and the respondent did not oppose that course.
The position in Lloyd v Thornbury was quite different from the present case. In that case, the primary judge had found in favour of the plaintiff and entered judgment in a quantified sum. The ground for appeal was inadequate (oral) reasons after a lengthy delay. The Court of Appeal dismissed the appeal insofar as it concerned the issue of liability but allowed the appeal in part as to damages. The Court felt compelled to remit the proceedings to the District Court for a rehearing on the assessment of damages because it was not a case where the evidence was all one way so that the only conclusion open on the evidence was that which the primary judge had reached. In the same decision at [10], the Court emphasised that this Court's power in an appeal by way of rehearing to make all findings necessary to sustain the order that ought to have been made at first instance should be exercised where possible in order to avoid the necessity for a retrial. Having reached the conclusion that remittal was necessary in that case, the Court imposed a condition that the issue of damages first be referred to mediation, as allowed under UCPR 53.51(5)(a).
In the present appeal, I understood both parties to be urging the position that remittal to the District Court for a rehearing as to damages should be avoided if at all possible. The costs of such an exercise would in all likelihood be quite disproportionate to the interest at stake: cf s 60 of the Civil Procedure Act 2005 (NSW). The parties' position on that issue was apt to assist the Court to further the overriding purpose stated in s 56 of the Act.
To that end, both parties put forward sensible submissions as to how damages might readily be assessed by this Court.
Mr Hoblos submitted that, if the Court considered there was sufficient evidence to reassess damages, the findings on credit and the medical evidence against him could only be supported from February 2018 (the point at which the insurer stopped payments in the face of Dr Smith's report). It was submitted that the Court could award damages up to that point in accordance with agreements between the parties as to quantum that had been conveyed to the primary judge, giving an award for economic loss in full of $152,000 ($1000 a week for 152 weeks) plus loss of superannuation of $16,720. The submission did not refer to medical expenses or any care component of damages.
The insurer's primary submission was that, in light of Mr Hoblos's "false presentation which confounded any accurate assessment of any injuries he might have suffered", the primary judge was not required to "divine" the amount of damages to be awarded and was entitled to take the course his Honour did, namely, to find for the defendant on the basis that the plaintiff had failed to discharge his onus of proving any injury or economic consequence compensable in damages. I reject that submission, for the reasons given in this judgment.
The insurer's alternative submission was that, if the Court took the view that Mr Hoblos should be compensated for temporary soft tissue injuries of the kind postulated by one of the medical experts, Dr Rowe (whose evidence is considered below), the Court would make that assessment itself. The insurer identified two possibilities on that analysis: 1. An award of damages for soft tissue injuries which had recovered within three months after the accident, giving an award of $13,000 for loss of earnings, $1,430 for loss of superannuation at 11% and $8,669 for medical expenses paid by the insurer under s 83 of the Motor Accidents Compensation Act, giving a total of $23,099; 2. Alternatively, if the Court were of the view that soft tissue injuries were sustained which recovered within eight months after the accident (that is, shortly prior to the examination by Dr Rowe on 9 November 2015), the damages to be awarded would be $34,000 for loss of earnings, $3,740 for loss of superannuation and $9,600 for medical expenses paid under s 83 of the Motor Accidents Compensation Act 1999 (NSW), giving a total of $47,340.
I do not think it is necessary to remit the proceedings to the District Court. The quantification of damages will turn primarily on the expert medical evidence, which this Court has analysed in detail and which does not raise issues of credit.
The alternative scenarios proposed in Mr Hoblos's written submissions in the appeal implicitly accepted that, if this Court were to reassess damages, no component would be included for domestic care. In any event, if that is wrong, that is the conclusion I have reached for the reason identified above.
The submission was silent as to whether the Court should also award medical expenses paid by the insurer for that period under s 83 of the Motor Accidents Compensation Act 1999 (NSW). If such expenses are sought, the parties should have an opportunity to address that issue based on the evidence before this Court and the findings in this judgment.
I do not accept the insurer's submission that any reassessment would be confined to damages for the impairment caused by Mr Hoblos's soft tissue injuries. As already indicated, the evidence establishes that Mr Hoblos experienced an episode of debilitating depression as a result of the motor vehicle accident. It is clear enough that Mr Hoblos is entitled to compensatory damages for the impairment of his capacity to work due to a major depressive illness from the date of the accident until at least early 2018. It is not clear to me whether the submission recorded at [183] indicates that Mr Hoblos consents to quantification of economic loss on that basis. If not, the parties should have an opportunity to address the quantification of economic loss based on the evidence before this Court and the findings in this judgment.
I have considered first referring the proceedings for mediation of the issue of damages, as occurred in Lloyd v Thornbury. Upon reflection, in light of the sensible positions proposed by the parties and the experience of counsel appearing in the matter, that is probably unnecessary. However, I propose that directions be made in terms that will give the parties an opportunity to resolve any outstanding issues before the need to prepare any further round of written submissions arises.
Before leaving the topic of damages, I should record a submission put on behalf of Mr Hoblos concerning the insurer's alleged failure to comply with its duty under s 84 of the Motor Accidents Compensation Act to do all things reasonable and necessary for the rehabilitation of an injured person. It was noted that compliance with s 84 is a condition of an insurer's license.
It is not clear to me that the section imposes a positive duty to offer rehabilitation services and it was not explained how any breach of that duty should feature in the determination of Mr Hoblos's claim. To that extent, the submission may be taken to have been rhetorical. It may nonetheless be observed that the imposition of the duty contained in the section to meet the expenses of rehabilitation is a statutory reflection of the desirability of adopting proactive programs to pre-empt the very kind of dysfunctional spiral displayed by Mr Hoblos. As already acknowledged, however, that observation does not affect the assessment of damages - it is merely an observation as to the commerciality of expending resources on litigation rather than rehabilitation.

[26]

Ground 1 - No Damages 1. The primary judge, having: 1. found that the respondent was at fault for turning right across the path of the appellant's vehicle; 2. found that the respondent's vehicle collided with the appellant's vehicle, which then in turn collided with a power pole and traffic light; 3. found that it is reasonable for a person to attend a doctor or doctors frequently after being involved in a motor vehicle accident; 4. found that the appellant was employed as a bus driver for Redy2Go, working 6 days per week; 5. found that the evidence of Mr Millard was favourable to the plaintiff; 6. found Mr Millard's evidence to be that he could no longer employ the appellant in his role; 7. a preponderance of evidence of historical supporting injuries and disabilities (sic) at least until February 2018; 8. having found that he was not satisfied as to the extent of disabilities suffered, rather than explicitly that he has suffered no disabilities; 9. having found that he may have some kind of injury and/or disability; 10. been advised of agreement between the parties that he appellant's earning but for the accident to the date of trial would have been $1000 net per week; 11. been advised that the respondent, through its compulsory CTP insurer NRMA, offered no rehabilitation services in accordance with Section 84 of the Motor Accidents Compensation Act 1999; 12. been advised of agreement between the parties that the appellant's earnings but for the accident from the date of trial would have been $1,050 net per week; 13. been advised that the respondent, through his compulsory CTP insurer NRMA, had initially admitted liability and made payment of treatment expenses; 14. no evidence of the respondent or his compulsory CTP insurer NRMA advising the appellant of a denial of all liability until as pleaded in the defence, filed on 14 June 2019; 15. been advised that the amount of past out-of-pocket expenses claimed, but to be agreed mathematically by the respondent, amounted to $26,559.73 (notice to associated 17 December 2019); erred in finding that the appellant had suffered no assessable loss or damage.

[28]

Ground 3 - Weight of Evidence 1. The primary judge erred: 1. In failing to give proper weight to the opinion of Dr So, based upon seven consultations with the appellant, and in circumstances where the doctor was not required for cross-examination; 2. In failing to explain the reason for a lack of weight given to the evidence of Mr Millard; 3. In failing to give the opinion of Dr Lim proper weight by misunderstanding the nature of psychiatric illness and finding inconsistences in the opinion that were not properly interpreted; 4. In giving less weight of the opinion of Dr Lim due to an inability to cross-examine the doctor despite all relevant matters having been provided to that doctor by the respondent in the provision of his opinion; 5. In speaking as to the state of mind of Dr Lim about begrudgingly making a psychiatric diagnosis; 6. In failing to give proper weight to the opinion of Dr Synnott by relating a failure to consider additional information that did not exist at the time of assessment; 7. In finding that the opinion of Dr Synnott did not support the loss of earning capacity claim nor any economic loss claim; 8. In finding that the opinion of Dr Hampshire should not be given very little weight due to the date of the report due to more known after January 2016, yet not disclosing a line of reasoning that would render the opinion at that point defective in any way; 9. In the weight given to the opinion of Dr Smith in respect of all periods, rather than as an opinion at that point in time and for the future; 10. In not giving any weight to the opinion of Dr Bogan; 11. In failing to give any weight to the evidence of Ms Tyler that the appellant was not capable of working overtime and should take short breaks after 30 minutes of driving; 12. In preferring the evidence of Dr Smith despite the preponderance of the evidence to the contrary and failing to give adequate reasons; 13. In the determination of matters relating to the assessment by Ms Memon in failing to delineate between examination on different dates; 14. In failing to have regard to the clear special experience explained to Ms Memon.

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