Mason v Demasi

Mason v Demasi - [2009] NSWCA 227 - NSWCA 2009 case summary — Zoe

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(e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history. 3 The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice. 4 Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant's oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts. 5 As Simpson J notes, the trial judge received less assistance than he might have by way of diagnoses of the applicant's current psychological condition. The fact that she may have been vulnerable to psychological deterioration before the attack would not preclude a relevant causal link between the attack and her current condition; the 'eggshell skull' principle may encompass a vulnerable psyche. That in turn may require discounting of damages to take account of the possibility that the applicant would have suffered psychological deterioration independently of the tortious conduct at some future time and in any event: see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 and Civil Liability Act 2002 (NSW), s 13. Similarly, it might have been necessary to consider to what extent the motor vehicle accident in 2006 contributed to the appellant's psychological state at the date of trial. 6 None of these issues was adequately addressed. Rather, as Simpson J explains, the trial judge was distracted from the real issues, perhaps in part by the search for inconsistency in the appellant's statements, first pursued by Dr Samuell, particularly in his second report. Indeed, closer attention to the rules of evidence governing the admissibility of expert opinion might have led to a greater focus on the weaknesses of Dr Samuell's reports, on which the trial judge placed some reliance, in relation to questions of psychiatric injury and diagnosis. 7 For the reasons given by Simpson J, the trial miscarried and his Honour's judgment in an amount of $39,719.40 should be set aside. No reference was made in the course of the hearing to any costs order. 8 Ultimately, for the appellant to recover an amount in excess of that awarded by the trial judge will depend on the plaintiff establishing, on the basis of her own evidence and that of relevant health professionals, that she has suffered on-going psychiatric injury as a result of the attack by the respondent's dog. Because her credibility was very much in issue, this is not a task that can be undertaken by this Court. 9 Before the Court can order a new trial, it must be satisfied that the errors occasioned some substantial wrong or miscarriage: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). In the present case that requirement is satisfied by the fact that the appellant has not had a proper trial according to law. Accordingly, the orders proposed by Simpson J should be made. 10 SIMPSON J: Pursuant to s 127 of the District Court Act 1973, the appellant appeals against the whole of the judgment of O'Connor DCJ given in the District Court on 3 April 2008. 11 The appellant claimed damages for personal injury that she sustained as a consequence of an attack upon her by a Rottweiler dog owned by the respondents. The respondents admitted liability and the claim proceeded as an assessment of damages. The award of damages was governed by the Civil Liability Act 2002. No issue arises with respect to the construction or application of that Act. 12 After hearing evidence, O'Connor DCJ awarded the appellant damages in the sum of $39,719.40. That sum was made up of $35,500.00 by way of damages for non-economic loss, an agreed amount of $2,719.40 in respect of out-of-pocket expenses already incurred, and a sum of $1,500.00 with respect to treatment the appellant established that she would require in the future. 13 The appellant claims that the sum awarded is inadequate, and that the inadequacy resulted from errors in the approach taken by O'Connor DCJ.

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The facts 14 The appellant was born in 1970 and was aged 35 at the time of her injury. She was the mother of three children, then aged 17, 13 and 4 (born in 1988, 1992 and 2000). She lived with them on a small acreage in the west of Sydney. 15 On 12 November 2005 she was walking with her youngest child and their dog in the area where they (and the respondents) lived. The Rottweiler ran from the driveway of the respondents' home towards the appellant and her son. She sought to protect the child and took the force of the attack. The dog bit her on her legs and arms. Initially, the clothing she was wearing gave her some protection from the attack, but the dog bit through the clothing. The appellant described the dog as having gone into "a frenzy". She said it "ripped [her] leg apart". She felt its teeth penetrate the clothing, and break the skin. Eventually, a neighbour came to her assistance. She was taken by ambulance to Liverpool Hospital, where she underwent surgery. She remained in the hospital overnight, but discharged herself, contrary to medical advice, the following morning, in order to care for her children. 16 Her principal (physical) injury was to the calf of her left leg. She still bears some scarring on that leg. 17 There were in evidence photographs of the appellant's leg, taken in the immediate aftermath, and others showing the scarring, eighteen months later (Blue, 10 and 69). 18 The appellant was not in paid employment in November 2005. She had, in earlier years, before the birth of her children, had paid employment as a clerical assistant. She became pregnant in 1988 and gave birth to her first child at the age of 17. She married the father of her second child shortly after that child's birth in 1992, but, although they had been in a relationship for some years prior to that, the marriage lasted only six weeks. It ended violently. The appellant has been in a relationship with Mr David Cazzy, who is the father of her youngest child, for some years. Up until the time of the attack, they had not co-habited, but they had plans to marry. Mr Cazzy has since terminated those plans. He did this as a consequence of what he described as the appellant's altered personality and functioning after the dog attack. He does, however, remain in contact with the appellant and her family. 19 The appellant particularised the physical injury thus caused, and these particulars were not subject to any significant dispute. She also particularised a psychological or psychiatric injury, in the following terms: "(f) anxiety

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She said that she walks with a limp, and has difficulty walking on rough ground. She said she has pain on walking, which prevents her walking distances. She said that she has emotional difficulties trying to live with the pain and functioning (20) and that her moods had become "very indecisive", "very irrational". She said she is no longer a rational person. 29 She said that prior to the attack, she had had recurring dreams which featured a dog attack. She spoke of her pre-injury recreations, which included abseiling, rock climbing, bushwalking and horse riding (approximately fortnightly) (36). 30 She said that she is now unable to ride a horse because she cannot put her boots on and could not mount the horse. 31 She began seeing a psychologist (Mr Gerard Glancey) because of the emotional difficulties she experienced trying to live with the pain and to cope with her daily functioning. In September 2006, after a consultation with Mr Glancey, she was involved in a motor vehicle accident. 32 With respect to any pre-injury psychological or psychiatric condition the appellant said little in her evidence in chief. It was suggested to her that, in 2000, following the birth of her third child, she was suffering from post-natal depression but that she did not believe that she did so suffer. 33 In cross-examination, she agreed that she had told Dr Robertson (see below, a psychiatrist who examined her at the request of her solicitors and provided a medico-legal report) that she had no past history of psychiatric disorder and said that she believed that that was true. 34 She was asked what she had told Dr Robertson about her alcohol consumption before the attack. She said: "I would have drunk socially once a year prior to the dog attack and I still do drink socially but sometimes in certain events I might - there were times there that I did have to have a beverage." 35 She was also asked about a history she had given to Dr Doron Samuell (see below, a psychiatrist who examined her on behalf of the respondents and also provided a report) that she had no previous psychiatric difficulty. She said that she believed that to be true. 36 She said that in about September 2006 she asked her solicitors to refer her to a psychologist and saw Mr Gerard Glancey on four occasions. 37 Cross-examination predominantly focussed upon what the appellant had said to the various health professionals and to drawing out inconsistencies or self serving omissions from the histories and information given by her. When cross-examined about alleged omissions from information given by her to either Dr Robertson or Dr Samuell, the appellant said: "The ten minute visits? There wasn't enough time."

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Mr Cazzy's evidence 38 Mr Cazzy said that he and the appellant had become engaged during the year before the dog attack and were hoping to be married soon after. He had never co-habited with her, but intended to do so after marriage. Nevertheless, he saw the appellant "probably every afternoon". He called in on his way home from work to see the appellant and their child. He said that the appellant had been working for the Benevolent Society with the ambition of a career in Childhood and Youth Health. She intended to undertake a TAFE course. 39 He described the appellant, before the dog attack, as: "Very bubbly, very friendly person. Very outgoing, full of empathy for everything." 40 She was "fantastic, great" with the children. He had never known her to raise her voice to them or smack them. She was always patient with them. 41 He said that since the dog attack, she had become a "very moody person", she "scares easy". He said: "Anything startles her she's scared, she's - you can't keep her on the same page as you half the time. You'd be talking one - she's like going off with the fairies half the time … Even with the children, the same thing." 42 Prior to the incident she was "very rational". 43 She is now impatient with the children and unable to tolerate pressure. She cries a lot. The engagement was terminated but they remained "mates". 44 He said that she "on occasions", such as birthdays, consumed alcohol. He would not describe her as a non-drinker. 45 He had never known her to see a doctor except with respect to the children prior to the dog attack. He believed that she had, after that event, seen a doctor about anxiety. 46 He was not aware of her suffering post-natal depression following the birth of their child, although he was aware that she had been "a little bit down". 47 After the injury, he obtained a wheelchair to help the appellant get around the house, and she used this to take herself from the bed to the bathroom when she needed to. 48 He was aware of a motor vehicle accident the appellant had in September 2006. The appellant had rung him but he could not make sense of what she was saying. She was screaming. 49 He had never known the appellant to abseil, but she rode a horse daily.

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(ii) Dr Hamad 57 Dr Hamad's report records that the appellant attended on 14 November 2005. She was tearful, anxious, distressed, not able to walk and required crutches for mobility. 58 Thereafter, she attended twice weekly for wound reviews. 59 She was unable to look after her children well and maintain her home duties. She was becoming very depressed, tearful, withdrawn, and felt helpless. 60 Dr Hamad prescribed anti-depressants (on a date unspecified in the report) and counselled the appellant. 61 On subsequent reviews (again, dates unspecified) the appellant's condition worsened, and the anti-depressant dose was increased. Eventually, the report notes, Dr Hamad referred the appellant to the Liverpool Mental Health Clinic. She was then suffering from flashbacks, nightmares, anxiety and depression. She was not improving despite being prescribed large doses of anti-depressants. 62 Dr Hamad referred the appellant to a psychologist for counselling. He last saw her on 14 February 2007, when she was back at work, feeling much better, but still using anti-depressants, by now with good results. Of some interest is the concluding paragraph of Dr Hamad's report, in which he observed: "Her calf wound has healed well with a long scar which is covered by wearing long pants or socks. I believe that her L calf injury and the frightening experience of the dog attack were a direct cause of Ms Mason's anxiety and depression flare up as she lost her independence and felt that she let her family and partner down." (italics added) 63 Dr Hamad's handwritten notes were produced on subpoena and tendered in evidence in the respondents' case. They date back to 1996. There is, of course, much that has no relevance to the present appeal. However, some entries, otherwise irrelevant, become relevant by reason of the approach taken by the trial judge. 64 The notes record, on 21 July 2000, that the appellant suffered from post-natal depression and was counselled. 2000 was the year in which the appellant's third child was born. 65 The notes next (relevantly) record, on 23 March 2001, that the appellant was suffering from PMS (agreed to mean "post menstrual syndrome") and was depressed and "not dealing with it". Dr Hamad prescribed Zoloft. 66 The notes record, on 5 February 2005, recurrent anxiety/panic attacks, insomnia and nightmares, and that the appellant was counselled and advised with respect to relaxation. Temazepam was prescribed. 67 The next note of relevance is that of 14 November 2005, following the dog attack. 68 On 9 December 2005 Dr Hamad recorded that the wound was healing well, that the appellant was very tearful, that she felt down, depressed, could not look after her family and was "seeing face of dog". She was having nightmares. She was counselled. 69 Entries of this kind continue on 16 and 20 December 2005, 2 February 2006, 27 February 2006, 2 June 2006, 13 September 2006 and 5 October 2006. On 13 September Dr Hamad referred the appellant to a Dr Yeoh (sic) (who, other evidence suggested, was a psychiatrist), but a later note records that she had not followed up this referral. 70 The last note, 14 February 2007, records that the appellant was back at work, that she felt well, and that she was on Efexor.

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(v) Dr Robertson 74 Dr Robertson examined the appellant on 28 November 2006. He recorded that the appellant had, before November 2005, experienced dreams of a dog attack. He recorded "no past history of psychiatric disorder", but a "positive family history", including suicide, at the age of 40, by the appellant's maternal grandmother, and "what appears to have been" a leucotomy performed on her paternal grandmother. 75 As to family history and circumstances, Dr Robertson recorded that the appellant was the third of four children of a marriage that ended when she was 4, soon after the family emigrated from England. Nothing untoward about the family circumstances appears from Dr Robertson's report. Dr Robertson simply noted that, after the separation, the children remained with their father, but maintained a close relationship with their mother. 76 He noted that the appellant described herself as an adventurous child, who did well at school, but nevertheless left in year 9 and went to TAFE to obtain her School Certificate. After her daughter (born in 1992) started school, she returned to TAFE and obtained a tertiary preparation certificate. 77 He recorded that the appellant "did not drink alcohol" prior to the attack, but did so thereafter. 78 Dr Robertson considered that, although she appeared tense, the appellant did not appear "significantly depressed"; however, he did record that she reported "flashbacks", continuing to the time of his assessment, a "phobic anxiety" in relation to big dogs, and the acquisition, nonetheless, since the attack, of a Great Dane (which he characterised as "counter-phobic behaviour"); increased startle response, and that the appellant had been socially withdrawn since the attack. He recorded that the appellant had been seeing a psychologist on a fortnightly basis for three months. 79 He described her as "animated, cooperative", and as speaking freely and in a dramatic manner. 80 He made a positive diagnosis of post-traumatic stress disorder with "quite typical" symptoms, together with depression, which, he said, is a common and well recognised complication or co-morbidity of post-traumatic stress disorder. He thought the prognosis for recovery was "very poor", but that the appellant would make slow improvement, short of full recovery.

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(vi) Dr Samuell (18 April 2007) 81 Dr Samuell assessed the appellant on 5 April 2007. He noted that she smelled strongly of alcohol, and that she confirmed that she had consumed alcohol that morning. 82 He recorded that the appellant told him that she saw her general practitioner, Dr Hamad, every two weeks for prescriptions, and that she saw a psychologist (whose name she could not remember) every two to three weeks. He recorded that the appellant said that, when the dog attacked her, she thought she was going to die because she was losing a lot of blood from her leg, and that she feared she was going to black out. She told him that she tried to throw her son over an adjacent barbed wire fence. 83 Dr Samuell also took a history from the appellant of "no previous psychiatric difficulty", although he contrasted this with the note from Dr Hamad's record, of 5 February 2005, that she had "recurrent anxiety/panic attacks, insomnia and nightmares". Dr Samuell also took a history of nightmares of a dog attack for eighteen months prior to the actual event. He recorded that the appellant claimed to have had "a normal upbringing". He recorded that the appellant claimed that the attack had "changed her world", and that she had, prior to the attack, had "a perfect life", that included activities such as horse riding, ballroom dancing, and abseiling. Under the heading "Psychiatric History" Dr Samuell recorded "there is no family psychiatric history", but he followed this with a note contrasting that with what appeared in Dr Robertson's report, to which Dr Samuell had access. (This, presumably, was a reference to what Dr Robertson called "a positive family history" of suicide and leucotomy.) 84 Dr Samuell recorded that the appellant said that prior to the attack she had abseiled every day of her life. He recorded that she said that she could not do these activities any more because she could not get on her boots; that she said that she could not move her feet at all, and that she said: "I can't actually walk.",

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although he also observed that she had walked into the consultation room with "no obvious difficulty". He recorded that she told him that she drinks "hardly ever", but that she also acknowledged that she had consumed alcohol prior to attending a regional mental health clinic (on a date unspecified in the report). She attended that clinic (which I take to be the Campbelltown clinic) because she believed that the personnel there would be non-judgmental with her. 85 In answer to a direct question, the appellant told Dr Samuell that as a result of the psychological impact of the attack, she could not "deal with anything", and that "everything is like a major trauma to do". She said that her life was now "bedlam". 86 Under the heading "Physiological Symptoms", Dr Samuell recorded that the appellant "acknowledged" that she had had nightmares for 18 months prior to the dog attack, and that the content of the nightmares was about an impending attack. 87 Under the heading "Personal History", Dr Samuell wrote that the appellant said that she had had "a normal upbringing", that she was academically advanced, and had a "bubbly" personality. 88 Under the heading "Opinion", Dr Samuell recorded that the appellant told him that she had no prior psychological difficulties, although he considered this to be inconsistent with what Dr Hamad recorded in his notes that indicated "psychological suffering". He appears to have included in this description the appellant's dreams of a dog attack prior to its occurrence, but did not accept that those dreams had any "premonitionary component". He recorded that the appellant left him with "the impression" that she had a "vulnerable personality"; he said, however, that he had no way of comparing the appellant's functioning pre and post injury; and that most of her symptoms appeared to be "on a continuum" with what she had experienced before the attack. While he accepted that it was likely that the dog attack was "quite distressing", he could not confirm that it "caused her illness as such". He referred to a "family history of psychological illness", and thought that, together with her "vulnerable personality", it was likely that most of her presentation could be accounted for by "regressed behaviour".

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(vii) Mr Glancey 89 Mr Glancey recorded consultations with the appellant on 12 September 2006, 27 September 2006, 15 November 2006 and 6 March 2007. He said that she had been referred by her solicitors "for assistance with psychological disturbance following a traumatic ordeal". Following the first visit he noted that she appeared "tense and agitated" and engaged in spontaneous and continuous reporting, at a "frenetic rate". He saw clear evidence of pressure of thought and emotional disturbance with the reporting of "the ordeal". He said that she reported "reliving the dog attack" with "vivid visual recollections" every day; that she reported poor concentration due to intrusive thoughts, and physical symptoms of anxiety associated with flashback memories; that she reported mood swings, irritability and unreasonable temper, emotional disturbance associated with mental activity and that she felt "overwhelmed"; and that she spoke of physical tension, confusion and anxiety every day. 90 Mr Glancey diagnosed bipolar disorder, potentially reactive to the trauma of the dog attack, anxiety disorder, with some characteristics of post-traumatic stress disorder. (The diagnosis of bipolar disorder was rejected by Dr Robertson, and was not pressed by either party. It was agreed that it should play no part in the proceedings, and, in part at least, evidence of the diagnosis was disallowed.) Mr Glancey reported to Dr Hamad and suggested a referral to a psychiatrist. 91 In relation to the appellant's pre-injury personality and condition, Mr Glancey recorded the following. In the first consultation, 12 September 2006, he noted that the appellant said that she had suffered post natal depression following the birth of her first child [that was in 1988], with which she coped without medication, and which did not recur following the birth of the subsequent children. 92 In the second consultation, 27 September, Mr Glancey attempted to obtain a psychosocial history. He noted that she had been referred to Dr Yeo, a psychiatrist, but had not attended. As to her pre-morbid functioning, he said: "I formed the view that she likely had demonstrated personality characteristics similar to her then current functioning but less extreme". 93 He recorded that the appellant was the third of four children of a family that emigrated to Australia when she was 4 and that the appellant referred to herself as an energetic, hyperactive child, and a high achiever. She told Mr Glancey of an unstable childhood and said that her mother was not a loving woman, but that she was closer to, and was favoured by, her father. 94 He recorded the separation of her parents when she was 5 years of age and that she was subsequently raised by her father (by her choice) for a period of three years, while her siblings remained with their mother. She told Mr Glancey that she returned to the care of her mother at the age of 7½, at her father's suggestion, and remained there until the age of 11, when she returned to the care of her father, where she stayed until the age of 14. She then returned to her mother for a period of six months, and thereafter lived independently, from the age of 14½. 95 She spoke of having lived on the streets, of working as a secretary, of renting a home, and of friends taking over her home. These friends were using drugs, which she did not accept. She said that her boyfriend was on drugs. She left and returned to live with her father. She discovered she was pregnant. Mr Glancey recorded: "She was disowned by both parents."

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She left home and established a relationship with her first husband which lasted five-and-a-half years and resulted in the birth of their daughter. She said the husband was violent and controlling. She left him against his opposition and he remained resentful. She spoke of bankruptcy following separation and said that she left the relationship with nothing. 96 She told Mr Glancey that she was, at the age of 4, sexually molested on numerous occasions by a young adolescent. Mr Glancey said that, following the attack, the appellant recognised that she was not coping with the demands of her life. 97 In the third visit, 15 November, the appellant demonstrated "a dramatic range of affect", engaged in circumstantial reporting, demonstrated pressure of thought; her reporting was (once again) disorganised and frenetic. 98 She spoke of using alcohol to control anxiety following the motor vehicle accident that post-dated the dog attack. She spoke of a panic attack and having been prescribed Efexor. Mr Glancey referred her to the Macarthur/Campbelltown Mental Health Team. 99 Mr Glancey said: "She claimed to have previously been a non-drinker." 100 She reported "generalised anxiety", broken sleep, stressful disturbing dreams, and being "constantly on edge". She spoke of hiding away from the world at home, of high levels of mental activity associated with the dog attack, and of the impact of anxiety on her life and the life of her family. 101 Included in Mr Glancey's report was the following: "She spoke of the dog attack. She asserted that her son was in the top 5% of students prior to the attack. Following the attack he slumped to the 45% level. She asserted this occurred 'the very next day'." 102 Of the final consultation, 6 March 2007, Mr Glancey reported symptoms of "hypomanic functioning". 103 Mr Glancey recorded that the appellant was of the view that her family looked down on her because she was not married; and that she spoke of her father demanding that she move out of his home when she was 16 years of age; that she lived on the streets; and that she had maintained a stable existence for her family since the birth of her children. 104 Mr Glancey thought that her prognosis without appropriate medication was poor. He maintained his opinion that she suffered from bipolar disorder and had symptoms of hypomanic disturbance. 105 Mr Glancey's report was referred to Dr Robertson for comment. On 27 October 2007 Dr Robertson reported again, disagreeing with Mr Glancey's diagnosis of hypomania/bipolar affective disorder, and reiterated that the appellant suffered from anxiety, an integral part of post traumatic stress disorder, acting on her underlying personality, which is of histrionic type.

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and said that it was unclear how he was able to make that distinction, without collaborative (sic - ? corroborative) evidence. 113 He said that the appellant had told him that she had a normal upbringing, but gave an entirely different history to Mr Glancey. He said: "She appeared to be shuttled between her parents until she lived independently from the very young age of 14½." 114 He referred to the history taken by Mr Glancey that the appellant had at one stage lived on the streets, of the unwanted pregnancy, and of being "disowned" by both parents. 115 All of this is drawn directly from passages in the reports to which I have already referred. 116 Dr Samuell then said: "Of significance, there was an omission from her history to me, that [the appellant] was sexually molested at the age of four. (Comment: reliable memories from the age of four are actually quite uncommon concerning these matters.)" 117 He said that the appellant had not told Mr Glancey about her anxiety that existed prior to the dog attack and instanced the fact that she did not mention her "premonitions" (although he had, in his previous report, rejected the notion that the appellant's dreams had any "premonitionary component"), panic attacks and nightmares that preceded the "dog event". 118 He referred to the motor vehicle accident prior to 15 November 2006 which, he said, was not revealed to him at interview. He then referred to the appellant's use of alcohol to control her anxiety following the motor vehicle accident, and said that the appellant had told Mr Glancey that she had previously been a non-drinker. Dr Samuell then referred to the obstetric records from the Liverpool Hospital 1999 admission, which, he said, evidenced that she had previously been a drinker and in fact had also consumed cannabis on a regular basis. He said that the appellant contradicted her history of alcohol consumption to Mr Glancey, speaking of her 'continuing use of alcohol when she was forced to leave home'. 119 He drew, from Mr Glancey's notes, that there had been "substantial developmental difficulty" and observed that this had not been conveyed to him at interview. He therefore said that the appellant appeared to be "an unreliable historian". He did not explain the reference to "substantial developmental difficulty". (I have carefully read Mr Glancey's handwritten notes and I can detect no hint of any, let alone substantial, "developmental difficulty".) 120 Dr Samuell made some criticism of Mr Glancey for failing to consider that the appellant might have had "a cluster B type personality disorder", or to entertain the possibility that the appellant's alcohol consumption was "perhaps more significant than she revealed". He made a similar criticism of Dr Hamad, for failing (in his report) to provide information about the appellant's pre-morbid functioning. (It appears that Dr Samuell was not at this time provided with Dr Hamad's notes.) 121 Dr Samuell made a number of observations which are important for the purpose of the appeal. He noted Dr Hamad's last conclusion, that the appellant was back at work, feeling much better, back to her usual life, caring and providing for her children and using the anti-depressants with good results, and said: "Dr Hamad's conclusion in this respect was very similar to my own. I did not consider her to be unwell at the time that I assessed her." 122 He then said: "Many psychiatrists have opined that early life abuse such as that sustained by [the appellant], can be the cause of a chronic post-traumatic stress disorder. This further complicates [the appellant's] claim, as it seems likely to me that her adverse early life events would have had a major and perhaps chronic effect on her personality development.

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The appeal 129 Seventeen grounds of appeal were pleaded. In written submissions, these were broken into seven groups, of which the first three relate to the approach to and assessment of the appellant's psychiatric or psychological condition, and the assessment of her credibility. 130 The exercise required was not complex. It required, first, identification of any psychiatric or psychological condition from which the appellant suffered, after the dog attack; second, examination of any causal relationship between the dog attack and that condition. One way of approaching the second question - probably, given the nature of the evidence, the only available approach - was to compare what was known of the appellant's functioning before the attack, with what was known of her functioning after the attack. 131 I have come to the conclusion that his Honour's reliance upon the reports of Dr Samuell, particularly the second report, was misplaced. That conclusion emerges from an analysis of the reports themselves, together with other evidence. 132 In his first report, Dr Samuell did not identify any documentary material provided to him for the purpose of preparing the report. He "suggested" (his own choice of word) that the appellant had "psychological suffering" prior to the dog attack. He cited Dr Hamad as having "articulated psychological suffering" some months before the attack. I infer from this that Dr Samuell then had access to Dr Hamad's notes, and that this was a reference to the note of 5 February 2005, of recurrent anxiety/panic attacks, insomnia and nightmares. Dr Samuell, did not, however, specify the nature of the "psychological suffering". (It is noteworthy that nowhere in this report did Dr Samuell give or make any diagnosis. It is also noteworthy that he did not comment on Dr Robertson's diagnosis of post-traumatic stress disorder, although he clearly had Dr Robertson's report available to him.) Dr Samuell said that the appellant left him with "the impression" that she had "a vulnerable personality", but, again, did not go into specifics. In the final paragraph of this report, he referred to "her illness", but did not identify what the illness was. This reference appears in the context of his considering whether the dog attack was the cause of the appellant's "illness", and attains greater significance in the light of the second report. 133 In the second last paragraph of the first report Dr Samuell said that he had no way of comparing the appellant's level of functioning pre and post injury. Yet, in the following paragraph, he said most of her symptoms "appear to be on a continuum with what she experienced before" the attack. He then referred to a family history of psychological illness, and her "personality vulnerability", and concluded that "regressed behaviour" was the cause of her "current presentation". 134 I observe, because of what appeared in the second report, that nowhere in the first report is there any mention, much less diagnosis, of personality disorder. 135 Dr Samuell's second report does identify "new documents" provided to him. Relevantly, these included the report and notes of Mr Glancey, the report (there is no mention of the notes) of Dr Hamad, and the clinical notes of the Liverpool Hospital and Campbelltown Mental Health Team. 136 He did not undertake any further personality assessment of the appellant. Rather, he undertook the exercise of detecting and detailing apparent inconsistencies in the appellant's presentation, and omissions in the information she provided. Some illustrations follow (all references are to Blue Appeal Book numbers) with, where appropriate, my comments:

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146 As Dr Samuell implicitly recognised, the key to the determination of the appellant's claim lay in a proper assessment of her pre-injury and post-injury condition and functioning. In my opinion, the above analysis shows that her claim was not subjected to a fair assessment. In many instances the findings adverse to her, relating to her credibility, are not warranted on proper examination of the evidence. The only oral evidence, apart from her own, of that condition and functioning, was that of Mr Cazzy. His evidence was unfairly discounted. 147 Further, Dr Hamad's notes were not given adequate attention. Attention was focussed upon the 5 February 2005 entry, without regard to the histories which appeared from the appellant's attendances on Dr Hamad from 1996. An overview of these notes would not suggest a personality disorder, or psychological difficulties, of the kind suggested by Dr Samuell, and accepted by his Honour. As the appellant's regular treating general practitioner over a period of eight years, Dr Hamad was in a better position than anybody else in the case to appreciate, evaluate and describe the appellant's pre-injury condition and functioning. His notes were contemporaneous, objective (because they were made before any litigation was contemplated) and reasonably comprehensive. They provide the most reliable guide to the "before and after" picture that was essential to the assessment of the appellant's claim. They were given inadequate attention both by Dr Samuell and the trial judge. 148 In my opinion the process of evaluation of the appellant's claim was flawed, and the result cannot stand. 149 During the course of the appeal there was some discussion whether this Court could, if it accepted the appellant's arguments, proceed to make its own assessment. The consensus was that it could not, and the matter must be referred for a new trial. 150 Other grounds of appeal raised complaints about the manner in which the trial judge dealt with claims by the appellant of ongoing physical disability, non-economic loss, future economic loss and out-of-pocket expenses. Since a new trial is necessary, it is unnecessary to deal with the those matters. It is sufficient to say that, on a re-trial, all issues as to the assessment of damages are alive. 151 I propose the following orders:

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)