Conclusions
133To the extent that there was any inadequacy in the reasons or fact-finding undertaken by the trial judge, these are defects which could not be remedied by this Court. Accordingly, if the appeal were to be upheld, it must be on the basis that a retrial is warranted. That course is only to be taken, however, if the Court is satisfied that there has been "some substantial wrong or miscarriage": Uniform Civil Procedure Rules 2005 (NSW), r 51.53. The circumstances of this case do not warrant such a conclusion.
134As noted above, the only specific error alleged is immaterial to the ultimate conclusions reached. In other respects, the conclusions are supported by evidence and depend to a significant extent on the judge's assessment of Mr Lu's evidence. It is apparent that Mr Lu failed to satisfy the trial judge on the balance of probabilities of the critical elements in his claim for significant damages. In these circumstances, the appeal should be dismissed.
135SACKVILLE AJA: I have had the benefit of reading in draft the judgments of McColl JA and Basten JA. Although there is some common ground in the two judgments, particularly in identifying inadequacies in the primary Judge's reasoning and fact finding, their Honours differ as to whether this Court should order a new trial or simply dismiss the appeal. Basten JA proposes the latter course on the ground that the Court cannot be satisfied that there has been a "substantial miscarriage of justice", as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.53.
136It is always regrettable when an appellant court finds it necessary to order a new trial. Such an order inevitably involves the parties in additional inconvenience, expense and delay. It is no doubt for this reason that UCPR, r 51.53, echoing common law principles developed in relation to jury trials, provides that the Court is not to order a new trial on any ground "unless it appears to the Court that some substantial wrong or miscarriage has thereby been occasioned": see Tory v Megna [2007] NSWCA 13 at [34]-[36] (Spigelman CJ, Beazley and Bryson JJA agreeing). The need for caution in ordering a new trial is emphasised by the requirement in s 56 of the Civil Procedure Act 2005 (NSW) that the Court, in interpreting the UCPR, must seek to give effect to the "overriding purpose" of facilitating "the just, quick and cheap resolution of the real issues in the proceedings": Tory v Megna at [28]-[30].
137Bearing these matters in mind, I nonetheless agree with McColl JA that the appropriate course in the present appeal is to allow the appeal and order a new trial limited to damages. To adapt the language of Heydon J in Dixon v Whisprun Pty Ltd [2001] NSWCA 344, at [74] (Beazley JA and Davies AJA agreeing), there are sufficient doubts and questions about the primary Judge's reasoning and fact finding to conclude that the appellant's claim was not given proper consideration (Dixon v Whisprun concerned Supreme Court Rules 1970 (NSW) Pt 51 r 23(1), the predecessor to UCPR r 51.53). On this basis, I am satisfied that a substantial wrong or miscarriage has been occasioned to the appellant.
138There are several points that should be made about the proceedings at first instance that are relevant to the conclusion that I have reached.
139First, as the primary Judge noted (at [4]-[5] and [8]), it was not easy to evaluate the appellant's claims. One difficulty was that the appellant gave evidence through a Vietnamese interpreter and his Honour found parts of the appellant's evidence hard to understand. That difficulty, as his Honour explained, was compounded by delays in making the transcript of the proceedings available. His Honour's task was further complicated by the very large volume of medical records and reports with which he was confronted. As both McColl and Basten JJA have observed, the medical and psychological experts expressed conflicting opinions, yet only one (Dr Smith, a psychiatrist) was cross-examined. Moreover, whether by reason of pressures of time or otherwise, his Honour appears to have received relatively little assistance in resolving the apparent conflicts in the expert evidence.
140Secondly, as McColl JA has explained, his Honour overlooked some evidence favourable to the appellant. In particular, the primary Judge erred in finding that the appellant had made no complaint to the respondent immediately after the accident concerning the injuries he had sustained. It is true that this error does not necessarily detract from his Honour's preference for the respondent's account of events in the wake of the accident over that of the appellant. Even so, there can be little doubt that the error played some part in the primary Judge's rejection of the appellant's case (at [34]) as not making "any sense".
141Thirdly, the appellant's counsel on the appeal did not dispute that the appellant had given evidence in "a florid fashion". It was clearly open to the primary Judge to find that the appellant greatly exaggerated his physical symptoms, both in his dealings with doctors and in his evidence at trial. But such a finding does not necessarily mean that the appellant was deliberately malingering or that he was not experiencing subjectively physical symptoms throughout the period between the accident and the trial.
142It is important to appreciate that one of the submissions put to the primary Judge on the appellant's behalf was that the evidence supported a finding that, although the accident may have had relatively minor physical consequences for the appellant, it triggered a major depressive illness for which he had received treatment. That illness, so it was said, involved a "conversion disorder" - that is, a condition in which psychological stress causes the sufferer to experience physical symptoms. It was submitted that the psychiatric injury was compensable, since it was a consequence of the respondent's negligence.
143The primary Judge dealt with this aspect of the appellant's case very briefly. His Honour said that he was "not convinced that [the appellant] suffers from any psychiatric condition at all", but that if he did the condition was unrelated to the accident. His Honour made no express finding that the appellant was a malingerer or had feigned symptoms at any particular time after the accident. Some expert reports, such as those by Dr Chase, an occupational physician (June 2003), and by Mr Weatherby, a clinical psychologist (July 2003), raised the possibility that the appellant had been malingering, but each indicated that further investigation was required. As Mr Rewell SC, who appeared for the respondent on the appeal, accepted, it was not directly put to the appellant that he had deliberately feigned his symptoms, whether shortly after the accident or subsequently.
144It is not clear from the primary Judge's reasons why he was not prepared to find that the appellant suffered from a psychiatric condition. Even if Dr Clark's opinion, which the primary Judge rejected, is put to one side, there was other evidence that the appellant suffered from a psychiatric disorder. As Dr Smith noted in his report of 10 February 2012, Dr Luong, the appellant's treating psychiatrist, considered in May 2007 that the appellant was suffering from a major depressive disorder. In March 2008, Dr Lewin, who made a determination of the degree of the appellant's impairment for the purposes of the Motor Accidents Compensation Act 1999 (NSW), accepted that the appellant had an adjustment disorder which had "arisen within the context of his emotional response to the motor vehicle accident and to the experience of pain".
145The finding that the appellant exaggerated his symptoms is by no means inconsistent with the existence of a psychiatric condition, such as a major depressive illness. The primary Judge may have had good reasons for rejecting the diagnoses of Dr Luong and Dr Lewin, but in my view those reasons do not emerge from the judgment. I appreciate that his Honour considered the video evidence of the appellant's physical abilities and the extent of his activities in Vietnam were inconsistent with some of his claims. But his Honour seems to have referred to this evidence in support of his finding that the appellant exaggerated his physical symptoms, rather than as a basis for concluding that the appellant was not suffering at any material time from a significant psychiatric condition.
146Nor is it clear why his Honour found that any psychiatric condition from which the appellant suffered was unrelated to the accident in February 2003. It is possible that his Honour considered that any depressive illness from which the appellant suffered post-dated the injuries he sustained in the 2005 motorcycle accident in Vietnam and was attributable to that accident, rather than to his earlier injuries. However, the judgment does not identify this as the reason.
147In the critical paragraph (at [38]), the primary Judge appears to assume that the appellant's case was that he was suffering from a psychotic condition which was attributable to the 2003 accident. His Honour accepted Dr Smith's evidence that a psychotic condition cannot be attributed to stress arising from trauma (as distinct from a progression attributable to genetic factors). But in his cross-examination, Dr Smith agreed that the 2003 accident could have triggered a non-psychotic major depressive disorder in the appellant. Dr Smith also took no issue with Dr Luong's diagnosis that the appellant in 2007 was suffering from a major depressive illness. Dr Smith further accepted that a person can subconsciously "fabricate" symptoms by reason of what he described as a "somatoform disorder" which may be causally related to trauma.
148While I recognise the difficulties confronting the primary Judge, I do not think that his Honour gave adequate reasons for rejecting the appellant's case, insofar as it was based on a psychiatric illness attributable to the accident. Of course, it does not follow that the appellant is bound to succeed on a retrial. Nonetheless, the trial miscarried in the relevant sense because the appellant's case has not been properly addressed. This Court cannot be sure as to the result that would be reached in a new trial if the appellant's case is appropriately considered: see Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[86] (Basten JA, Ipp and Campbell JJA agreeing).
149I agree with the orders proposed by McColl JA.