The approach of the primary judge on the issue of causation and the appellant's credit
64After listing at [2] of her reasons the particulars of the injuries sustained by the appellant as pleaded in her statement of claim filed on 18 December 2009 (and which included injury to her right leg), the primary judge under the heading "The circumstances of the plaintiff's injury" stated that at 10pm on 28 May 2008 the appellant trod on two floorboards on the veranda of the premises in which she was living which had rotted and which gave way causing her to fall into the gap which was sufficiently narrow to prevent her falling right through. Her Honour then noted that the appellant proceeded to the Coffs Harbour Health Campus, being the local hospital, the following morning and then set out both the triage and medical entries in the hospital notes to which reference has already been made.
65At [9] her Honour referred to the fact that in May 2010, some two years later, the appellant's doctors provided medico-legal reports stating that her right leg, not her left leg, had gone through the hole, and that that leg had suffered an injury of considerable severity.
66After summarising what the appellant had informed the medico-legal consultants as to how she fell and that it was her right leg that went through the floorboards and not her left leg, the primary judge noted (at [11]) that the difficulty with the descriptions of the accident and consequent injuries given by the appellant two years after the event to the medico-legal consultants, was that they were inconsistent both with the treating entries in the hospital notes and with her subsequent treatment in 2008 and 2009 by her general practitioners. Her Honour then set out the relevant entries of Dr Heslop, Dr Cheney and Dr Hertzberg which I have already recorded.
67At [19] the primary judge referred to that part of the report of Dr O'Neill where he noted two medical entries by Dr Ashton dated 10 November 2009 contained in the file provided to him by the Coffs Harbour Health Campus Emergency Department and which were to the effect that the appellant went to the Emergency Department complaining of left knee/leg pain.
68However, her Honour makes no reference to the fact that the appellant was not cross-examined on these entries. For all one knows, she may have sustained a frank injury to her left knee in November 2009 which had nothing to do with the accident on 28 May 2008. After all, 18 months had passed and it was common ground that any injury to her left leg in the subject accident had resolved itself at least 12 months before she saw Dr Ashton. Yet her Honour appears (at [19]) to have regarded the reference to the appellant's left leg by Dr Ashton as some objective evidence that it was the left and not her right leg which went through the rotted floorboards. At the very least she appears to have accepted that the reference in Dr Ashton's notes that the appellant was complaining of left knee and leg pain to be inconsistent with her evidence that it was her right knee and leg that was injured in the accident.
69At [20] the primary judge noted that the appellant's evidence was that she:
not only injured her right (not left) leg, back and wrist, but that she had complained to hospital staff about injury to her right leg, and asked for the right leg (although not, apparently, her back or wrist) to be x-rayed.
This summary of the appellant's evidence contained two errors. First, her evidence both in chief and in cross-examination was that she had injured both legs and that she had informed the triage nurse not only that she had injured her left leg and ankle but also her right leg, her back, her right shoulder and her left wrist. Secondly, her evidence in cross-examination was that she did request an x-ray of her left wrist as well as of both legs. These factual errors on the part of her Honour were not the only ones as will appear. Nevertheless she relied, at least in part, upon these erroneous facts when determining whether to accept the appellant's version of events.
70At [21] her Honour said:
The [appellant], throughout her evidence, paints a picture of substantial and serious injuries to her back, shoulder, wrist, thumb and right leg being not only not recorded but ignored by the hospital staff for the duration of the time that she was in the emergency department, and when she returned the next day. She made similar claims in relation to her visits to her general practitioners, although an alternative explanation was given in relation to the latter, in that she was lucky to have five minutes with the doctor when she saw him, as he only had time to deal with one issue, otherwise she had to pay for a longer consultation.
71I interpolate that at no point did the primary judge make a finding as to whether the "alternative explanation" referred to was one that she accepted as true or false. Furthermore, the appellant did not say that she had made "similar claims" to Drs Cheney and Hertzberg when she saw the former on 16 July 2008 and the latter on 29 July and 26 August 2009. Although she said that she had spoken to her general practitioners, in effect, informally with respect to her complaints, she denied that she had done so "officially" on the occasion of what she referred to as "a direct appointment". If this evidence was accepted, then it would explain the absence of any reference to her injuries or complaints of pain from those injuries in the notes of those consultations in July 2008 and July and August 2009 upon which her Honour relied.
72The primary judge nevertheless took the view that there were inconsistencies in the appellants' evidence. In order to reconcile them she considered (at [23]) that
. . . it is necessary to examine with care her evidence, demeanour and consistency of answers in cross--examination.
The objective so referred to by the primary judge was clearly correct but as will appear, it was not one that she ultimately adopted.
73Under the heading "The plaintiff's evidence", the primary judge noted that both in opening and closing submissions counsel for the appellant accepted that the central issue in the case was her credibility. This notwithstanding, at [25] her Honour observed:
Ultimately the question of whether or not I accept the plaintiffs evidence depends not upon her credibility or demeanour, but upon how I reconcile her version of events as told to the court in these proceedings with the contemporaneous records of the time.
74Her Honour then proceeded at [26] to [32] of her reasons to summarise the appellant's evidence as to her pre-accident employment history observing (at [31]) that there were a number of inconsistencies between that evidence and contemporaneous records. There is no doubt that her Honour was justified in finding that there were such inconsistencies and that, to a degree, the appellant had exaggerated her pre-accident work history as well as her perceived abilities. One example will suffice. She asserted that she did exceptionally well in the School Certificate but in fact she left school before sitting for her School Certificate as she was about to give birth to one of her children. Nevertheless, as her Honour noted at [29], between 2002 and 2005, she attended Taree TAFE and "commendably" over this period succeeded in obtaining a Certificate 3 Aged Care Work qualification and undertook a twelve month medical receptionist course by correspondence In 2002 she had also obtained a Certificate 2 in Aged Care Work at Tuncurry TAFE.
75The most significant inconsistency related to her statement to Professor Champion that at the time of the accident she was working as a casual nurse from 32-65 hours per week as well as working as a part time receptionist two days per week in a printing business. As I noted at [24] above, the latter was correct but the former was not. Two weeks after the accident she returned to work for the printing company where she remained until July 2009 when she was retrenched. It is true, as the primary judge noted at [32] of her reasons, that for nine months, while working two days a week at the printing company, she also worked part time (usually on a Saturday and Sunday) as a Care and Service Employee at Bellorana Nursing Home, but the nursing home's records indicate that she ceased that employment on 21 March 2007.
76The next heading in her Honour's reasons was "The plaintiffs credibility as a witness". At [33] she reiterated the appellant's counsel's submission that the issue in the case was her Honour's assessment of his client's credibility. Her Honour did not seem to accept this, observing that:
. . . the issue for determination is the nature and extent of injury arising from the plaintiff's fall through the rotten floor boards of the veranda, and whether the injuries for which she complains are causally related to this accident.
77At [34] her Honour then noted that the correct approach to a determination of causation in circumstances where a plaintiff's credit is an issue, was explained in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [41] where the Court observed:
To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons.
After referring to the observation in Whalan relating to the problem of inadequacy of reasons, her Honour continued at [35]:
. . . I have accordingly set out at some length the basis upon which I have not accept [sic] the evidence of the plaintiff that she did in fact suffer injuries contrary or different to those described in the contemporaneous hospital and general practitioners' notes and my further finding that her problems with her right leg and shoulder, on the balance of the evidence, are not causally related to her fall through the floor boards.
78At [36] - [38] her Honour referred to and cited from the judgment of Ipp JA in The Nominal Defendant v Kostic [2007] NSWCA 14 at [43] - [44]. As she noted at [39], the issue of causation in that case arose by reason of a delay by the plaintiff in complaining about a lower back pain several weeks after the accident and the issue in dispute between the parties' respective medical experts concerned the delayed onset of lower back pain which the plaintiff experienced; the doctors expressed differing views as to the implications arising from that delay. Accordingly, as her Honour noted at [37] those differences of opinion did not involve a credibility issue, but a medical question, and one which was clearly defined by the differing opinions of the doctors in their reports.
79The present case is not one which involves differing medical opinions. Only Dr O'Neill referred to the medical entries in the notes of the hospital and the general practitioners whom the appellant had consulted in order to form the opinion that it was her left leg and not her right leg which fell through the floorboards. This was a finding of fact that did not involve any relevant medical opinion. The medico-legal practitioners who provided reports on behalf of the appellant accepted the history of the accident as conveyed by her, in so far as she asserted that it was her right leg that fell through the floorboards. They were not asked, nor would it have been appropriate for them, to comment on the entries in the medical notes upon which Dr O'Neill relied in coming to what was, in my view, a factual finding and not a medical opinion. As such, it was outside Dr O'Neill's area of expertise, as it did not involve the formulation of an opinion based on his professional observation or assessment of the appellant's reliability as an accurate historian.
80On the contrary, Dr O'Neill simply rejected the appellant's version of events on the sole basis that it was not supported by the hospital and general practitioner's notes taken at face value. it is to be noted that Dr O'Neill does not suggest in his report that he sought any explanation from the appellant as to the apparent inconsistency on which he relied in order to conclude that she only injured her left leg and ankle in the accident.
81At [39] her Honour observed that the first difficulty facing the appellant was the extent of the delay in her reporting her symptoms with respect to her right leg. She observed that unless she accepted the appellant's evidence that she informed the hospital and her general practitioners (or both) about her back, right leg and wrist problems during her visits in 2008 and 2009, the delay in complaint was one of two years. With respect, this is not entirely accurate as the delay was some 19 months given that she asserted injuries to her right leg, wrist and back in her statement of claim filed on 18 December 2009. However, the appellant's evidence was that she had informed the triage nurse and doctor at the hospital not only that her left leg had been injured but also her right leg and she had also so informed Dr Heslop on 6 June 2008.
82As I have noted above at [71] above, the appellant did not assert that she had advised Dr Cheney on 16 July 2008 or Dr Hertzberg on 29 July and 26 August 2009 that she had injured her right leg in her fall as her attendances on those occasions related to other specific health problems with which she was then more concerned. The difficulty with which this Court has to grapple is that the primary judge did not indicate one way or the other whether she accepted the appellant's explanation as to why on those occasions she did not advise those general practitioners of the injuries to her right knee, ankle and lower back which were still causing her pain. Acceptance of that evidence would have minimised or even eliminated the significance of the alleged delay.
83At [40] her Honour stated that the second problem on the issue of causation was the lack of information about the appellant's medical problems in the two years following the accident. She properly acknowledged the dangers of attaching excessive significance to medical notes of considerable brevity prepared for purposes other than litigation. That caveat notwithstanding, her Honour seems, with respect, to have regarded it as significant that the treating notes in the present case all refer to the left knee, there being no reports of "any treating doctors" to explain why they referred to the left knee rather than the right knee. However, it should be noted that apart from the hospital notes the only occasion when there is a reference in the notes of the general practitioners to the left leg is in that of Dr Heslop on 6 June 2008.
84Her Honour then added the following:
In addition, the plaintiffs explanation for not consulting any doctors over this period (financial concerns) is inconsistent with her concession that the general practitioners' practice consulted by her did in fact bulk bill; she said in her evidence that these doctors were friends, and she referred to them by their first names. Mr Defina, the psychologist who prepared a medico-legal report for the defendants, notes the practice provided bulk-billing.
85In my respective opinion, the foregoing findings were not supported by the evidence. First, the appellant did not concede that the practice of the doctors in Bellingen (Drs Heslop, Cheney and Hertzberg) bulk billed. In fact the respondent accepted in oral argument that there was no evidence that they did. Professor Champion records in his report of 31 May 2010 that she did not see any doctor after the initial hospital visit because the doctors in Bellingen did not bulk bill (Medicare only) and it was not affordable. Nor was she cross-examined to suggest that that practice did bulk bill. She did say in her evidence that she was on friendly terms with the three doctors in question and that she had spoken, in particular, to Dr Cheney in effect on social occasions about the problems with her right leg and lower back but not at any formal consultation, except on the occasion she saw Dr Heslop on 6 June 2008.
86Secondly, there is nothing in Mr Defina's report that suggests that the Bellingen practice bulk billed. Given her acknowledgment that the appellant's explanation for not consulting with general practitioners over the two year period of "delay" was due to the fact that the practice in question did not bulk bill and, therefore, she could not afford to seek medical consultation unless it was absolutely necessary, her implicit rejection of that evidence upon the basis that the practice did bulk bill was, with respect, a significant error in her fact finding relevant to the appellant's credibility on the issue of causation.
87Her Honour then observed (at [41]) that what she had previously said brought her to the question of her assessment of the appellant's evidence. She appropriately referred for this purpose to the following passages from the judgment of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] the relevant parts of which I record below:
[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ... Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
[74] Lord Bingham then added these observations:
"In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."
88In the present case it is difficult to see how the appellant could have been honestly mistaken as to which of her legs went through the rotted floorboards. Her consistent repetition to all the specialists she saw that it was her right leg does not permit of any such finding and her Honour did not make one. Unless what she related to them and in her sworn evidence was true, the only alternative finding must be that she was being deliberately dishonest; that her story was a concoction intended to mislead the court to award her substantial damages for injuries which were not caused by the negligence of the respondents. There was simply no other choice and it was stark. I return to this point at [124(e) and (j)] below.
89At [42] the primary judge set out what she referred to as the "issues" relevant to the appellant's credibility as being the following:
(a) The inconsistency between the plaintiffs account of what she told the hospital on the day and the reports, including the investigations carried out, which were prepared contemporaneously by the hospital staff. This is not a case where the plaintiff tells the court that she did not realise on the day that she had suffered other injuries, her explanation is that she reported these injuries, which were obvious to the naked eye, and that nothing was done;
(b) Similarly, the discrepancy between the plaintiffs account of her reports concerning her injury (or lack thereof) to the doctors in the general practice which she consulted, over the period from the accident until the time she ceased to consult these doctors. Again, it is not the case that the plaintiff said she was unaware of suffering these injuries, her explanation was that when she referred to these injuries, she was told she just needed to lose weight;
(c) The plaintiffs failure to provide medical reports of other doctors in relation to other treatment she sought, such as acupuncture and moxibustion;
(d) The period of delay between the plaintiffs injury and her first report of these injuries to medico-legal experts in May 2000 [sic 2010];
(e) Inconsistencies in the information provided to these medico-legal experts by the plaintiff in relation to the circumstances of her accident, including such other matters as her work history;
(f) Inconsistencies in the information provided by the plaintiff to experts retained by the defendants to provide medico-legal reports;
(g) The impact of the surveillance film on the plaintiffs credibility.
These factors, if accepted by her Honour at face value, could only result in a finding that the appellant could not be believed on her oath and had lied not only to the court, but also to at least eight health professionals.
90The next heading in her Honour's reasons is "Inconsistencies in the plaintiffs evidence, and their relevance to her credibility". At [45] she stated that the evidence given by the appellant that was unsatisfactory fell within the following categories
(a) Her claims to have suffered injuries which must have been noticeable to the emergency department at the time of the accident which are not noted, such as the scars on her knees and wrists and the injuries to her right leg and shoulder;
(b) Her explanation for her continuing failure to seek medical assistance in relation to her injuries and disabilities;
(c) Her explanation for the two year gap before telling medico-legal experts (rather than treating doctors) about her condition; and,
(d) Her description of her pain levels and what she can and cannot do, and over what period of time.
91At [46] her Honour noted that the appellant was insistent in that she had told the hospital the full extent of her injuries. She had said that these were obvious and she still had the scars. Her Honour then continued:
... Her explanation for failing to seek medical assistance or advice about her ongoing pain or to obtain pain medication was her distrust of doctors, whom she feared would report her as an unfit mother; she preferred to go to the local hospital emergency department, and this is confirmed by the November 2009 entry found by Mr Defina (this entry also, I note, refers to the left leg).
92The November 2009 entry was a reference to the notes of Dr Ashton found by Dr O'Neill rather than Mr Defina. However, there was no evidence as to the reason the appellant saw Dr Ashton. As I observed at [68] above, she was not asked. As I also there noted, it could not have had anything to do with the events of 28 May 2008, as it was common ground that the injury to her left leg as a result of her fall that day had resolved itself long before November 2009.
93Furthermore, the primary judge has, it would seem, misinterpreted the appellant's evidence in so far as she appears to be asserting not only that her failure to seek medical assistance or advice about her on going pain was her mistrust of doctors, whom she feared would report her as an unfit mother, but also that that was the only explanation for failing to seek such assistance. The unfit mother point was made in the context of that part of her evidence which I have recorded at [62] above. In my view the primary judge has mistakenly taken that statement out of context.
94Her Honour also seems to have overlooked the fact that the appellant did not give any evidence that she distrusted doctors. She did say that her preference was to go to the local hospital emergency department, due to financial reasons more than anything else. Her evidence relating to this aspect was contained in the exchange which I have recorded at [57] above.
95Importantly as appears from that exchange, the appellant's evidence was that she did not visit her GP unless she absolutely had to; she did not seek a consultation just for the sake of doing so, but actually needed to have something really serious which was causing a problem. Thus in a number of the exchanges to which I have already referred, her evidence was that she only sought medical assistance when it was absolutely necessary such as when she had an asthma attack or one of her children was ill. Affordability was also an issue as appears from the exchange which I have recorded at [56] and [59] above. None of the explanations contained in that exchange were, with respect, dealt with by her Honour or seemingly taken into consideration or were the subject of findings by her when dealing with the issue of the appellant's creditability on the question of causation.
96Under the heading "The evidence of the plaintiffs experts" her Honour proceeded to summarise each of the reports of the four specialists qualified by the appellant. Relevantly, with respect to Dr Teychenne, her Honour appears (at [56]) to have criticised him as having accepted everything the appellant said as to how the accident occurred "at face value". At [61] she again noted that Dr Teychenne had accepted, without any qualification, all of the appellant's claims about her injury and disabilities "however inconsistent". With respect, there was nothing inconsistent with the appellant's insistence that it was her right leg which went through the veranda floor and not her left leg or, if that was correct, with the injuries of which she complained.
97The primary judge then turned to the report of Professor Champion. At [68] she referred to the appellant's medical records when visiting Dr Heslop in June 2008 noting that there was no reference to her right leg in the relevant entry. It is true that this was not known to Professor Champion. Although he was somewhat incredulous with respect to the appellant's pre-accident employment history and said that he was "not sure what to make of the left-right problem", he nevertheless came to the view that she was a reliable historian with respect to that issue. Of course, her Honour was not bound to accept that viewpoint.
98Although at [73] her Honour observed that Professor Champion had addressed many of the "obvious inconsistencies in the plaintiffs description of events", there were in fact no such inconsistencies in so far as the appellant was adamant that it was her right leg which fell through the floorboards and not her left leg. In fact the only inconsistency seemed to be Professor Champion's recording of the appellant having informed him that she did not see any doctor after the initial hospital visit, which was incorrect, as she had seen Dr Heslop in particular on 8 June 2008. In this respect it would be reasonable to infer that Professor Champion was referring to the appellant not seeing a doctor after the initial hospital visit with respect to the injuries sustained by her in the accident rather than for any other medical problem.
99There are other factual errors in Professor Champion's report in so far as what he was told by the appellant does not accord with the relevant entries by the general practitioners which she saw such as Dr Hertzberg. However, her Honour was correct when, at [73], she observed that Professor Champion had not been given accurate information as to the appellant's history of seeking treatment; nor had he been given an accurate pre-accident work history. Nevertheless, her Honour (at [74]) accepted Professor Champion's opinion that the injuries of which the appellant complained were, by their nature, consistent with the circumstances of her fall as she related it. Her conclusion with respect to Professor Champion was thus expressed as follows:
[75] While I accept Professor Champion's opinion that the plaintiffs injuries to her knee and back are injuries of the kind capable of being caused by the circumstances of her accident, I do not accept that they were in fact so caused. I have the benefit of additional objective evidence, including an accurate picture of the plaintiffs work history and the notes, however brief, of her treating doctors.
100I pause to note that, subject to the surveillance video to which reference will be made below, her Honour's conclusion was essentially based on two factors; first, the inaccuracies in the appellant's pre-accident work history and, secondly, the brief notes of her treating doctors and the hospital. In the context of the second of these matters reference should be made to the observations of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] in a case where, relevantly, the testimony of the plaintiff appeared to be inconsistent with the accounts given to various health professionals. Such apparent inconstancies, his Honour said, should be approached with caution for the following, amongst other, reasons:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording.
101The foregoing considerations are of particular potency in the present case when considering notes made in a hospital emergency department where the triage nurse and attending doctors who wrote them are under considerable pressure, and treating general practitioners in an apparently busy practice who, according to the appellant, "fitted her in" for a short consultation.
102The primary judge then turned to the report of Dr Buckley concluding that it was of little assistance given the inaccurate work history with which he was provided as well as the failure to provide him with the entries of the general practitioners whom the appellant had seen in 2008 and 2009. Her Honour found that Dr Bentivoglio's report was similarly of limited assistance for the same reasons.
103In the result, it appears that the primary judge has rejected the reports referred to because they were generally based upon an inaccurate pre-accident work history provided to them by the appellant, and the failure to provide the doctors with the hospital notes and entries by the general practitioners whom the appellant consulted in 2008 and 2009. However neither of these matters can militate against the medical findings, opinions and prognoses expressed by each of the doctors concerned with respect to the injuries which the appellant asserted that she had sustained in the accident. Even if those practitioners had been made aware of the entries in the hospital notes as well as in the records of Drs Heslop, Cheney and Hertzberg, that would not have advanced the position as those doctors were not qualified to express a view as to whether it was her left leg or her right leg which fell through the floorboards. All they could do, and did do, was to express a view, which her Honour accepted, that her injuries were consistent with her right leg having fallen through the floorboards.
104Furthermore, the only other relevance of the reports with respect to the issue of causation (as distinct from damages) was that the appellant was entirely consistent in asserting to each of the practitioners concerned that it was indeed her right leg that fell through the floorboards and not her left leg. The issue which then arose was whether her evidence in this respect was credible and reliable. The hospital notes and the entries of the general practitioners were obviously relevant to this issue but, in my opinion, whatever inconsistencies were contained in them needed to be assessed against the credibility of the appellant in terms of her oral evidence both in chief and in cross-examination. That required an analysis of that evidence and an assessment of how it impacted upon the inconsistencies upon which her Honour relied on the causation issue. The appellant was, in my opinion, entitled to such an assessment. She was entitled to know whether she was or was not believed on her oath. Unfortunately, she was deprived of that right. It follows that there was a failure to take account of the appellant's evidence in a number of critical respects when determining the causation issue.