(4) By consent order that the defendant pay the plaintiff 's costs of the trial up to 11 am on 9/6/99, thereafter plaintiff to pay defendant's costs. Appeal allowed with costs but respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Cross-appeal dismissed with costs.
70 POWELL JA: I agree with Handley JA.
71 DAVIES AJA: The principal issue in this appeal is whether the accident which Mrs Rose Shorey, the first respondent, suffered, when she fell on wet tiles at a shopping centre in Blacktown on 2 April 1988, was causative of the bizarre psychological disorder which she later developed.
72 As Handley JA has pointed out, there are no sufficient grounds to disturb the finding of the trial Judge that the first respondent's conduct and complaints did not result from malingering but, rather, represented a psychological disorder which has been described as a conversion disorder. A conversion disorder is a disorder of the type which, in a mild case, used to be called functional overlay or hysterical reaction, where an injured person's mind informs the person that he or she has pain and disabilities which, save for the mental disorder, would not exist.
73 Senior counsel for the appellant has submitted that it should not be found, as a matter of probability, that Mrs Shorey's problems resulted from the accident in the shopping centre. Counsel submitted that the probable or an equally probable cause of Mrs Shorey's disorder was the death of her husband in January 1989 and a subsequent dispute which she had with one of her daughters as to whether she, Mrs Shorey, was entitled to remain living in the matrimonial home.
74 Counsel referred the Court to medical evidence including that of Dr F Roldan, a psychologist, who considered that Mrs Shorey's disorder developed as a result of feelings of grief and guilt following the death of her husband in January 1989. Dr Roldan said in his report dated 30 June 1997:-
"… Ms Shorey is likely to engage in manipulation of facts and events in order to seek a simplistic explanation for her difficulties and one which does not involve self-examination or the possibility of coming to terms with the psychological issues which may be driving her behaviour. Within this context, she is likely to have selected the accident in question as a convenient and non ego-threatening way to attribute her difficulties, seek attention from others and relinquish responsibility."
75 Dr Jonathan Phillips, a consultant psychiatrist, thought that the accident was a material cause of Mrs Shorey's problems. In his report dated 6 February 1998, Dr Phillips said:-
"Mrs Shorey has a pain syndrome associated with a psychological disorder and a general medical condition DSM IV 307.89. The genesis of her pain disorder is as follows. She had pre-existing orthopaedic pathology affecting the lower parts of her spine. The fall of 2 April 1988 significantly exacerbated the problem. She subsequently developed a major depressive disorder DSM IV 296.22 (single episode, moderate severity, non psychotic, chronic), this leading to a reduction in the threshold to perception of pain. A vicious cycle was thus established with pain leading to depression and depression to pain. She is now focused on her disability and leading the life of an invalid.
…
The fall of 2 April 1988 is central to understanding Mrs Shorey's current symptomatology. It was that traumatic incident which set in train the events (physical, psychological) which have led to the patient's disability."
76 In his evidence in chief, Dr Phillips said:-
"A. Well, I would view the accident of 1988 as the sentinel event in the causal chain. She had made a relatively good recovery, I understand, from previous surgery. It was after that accident that her symptoms began to be manifest. I accept that there were other important stressors along the way which you have touched upon but the accident, in my view, was the psychological trauma of principal importance."
77 In re-examination, Dr Phillips said:-
"… Yes, it is entirely reasonable to see the fall in the shopping centre in 1988 as the event which was the beginning of the downhill course, if you like …
… I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically."
78 Counsel submitted that Dr Phillips resiled from this opinion as shown in the passage in his cross-examination which is set out in the reasons of Handley JA. However, I do not take that passage as doing more than conceding the possibility that Dr Phillips' view may be incorrect. For myself, I find Dr Phillips' reports and oral evidence to be impressive. The consistent thrust of his evidence was that the fall on 2 April 1988 played a significant role in the development of Mrs Shorey's condition.
79 Dr Phillips' view was supported by that of Associate Professor J D Yeo, who for many years had been director of the Spinal Unit at Royal North Shore Hospital and of the Spinal Unit at the Royal Rehabilitation Centre at Ryde. Assoc Prof Yeo said, in his oral evidence:-
"In this lady's case my interpretation of her problems is that she had an original injury from which she appears to have made a very satisfactory recovery from the surgery but she would have had scar tissue in and around the spine where that repair was done and the potential to have a trigger point there. For a period of at least 18 months she claims she was symptom free prior to the fall which occurred in April 1988 and from that point she obviously had an exacerbation of back pain and leg pain which, as you describe, was disabling but certainly had not reached the level of disability which subsequently occurred with her paraplegia. The three main psycho-social episodes that you describe could well have sensitized this lady to becoming more profoundly disabled than she would have been had those particular items not occurred but may have occurred had other particularly emotional crises occurred, different to the ones you describe. So that here we have, I believe, a very reasonable scenario of a physical disability and coupled with the complexity of emotional crises which are understandable and which led this lady to present as profoundly paraplegic which we know is not from an organic cause. In my opinion the … main trigger point for this present level of serious disability is the fall that she had on 2 of the fourth 1988."
80 Both Dr Phillips and Assoc Prof Yeo considered that a physical injury was a common trigger to the development of functional or hysterical reactions of the kind which Mrs Shorey developed.
81 The trial Judge accepted the view propounded by Dr Phillips and Assoc Prof Yeo that Mrs Shorey's conversion disorder was caused by a variety of factors including the fall in 1988. The trial Judge rejected the view, expressed in some of the medical evidence, that it required a major event, such as grief or guilt, to cause a conversion disorder. I see no error in these findings. They were based particularly upon Dr Phillips' evidence. His reports and his evidence are, to my mind, persuasive.
82 I turn to consider whether the factual evidence adduced before the trial Judge supported a finding that the 1988 accident was a cause of Mrs Shorey's psychological disorder.
83 From 1978 onwards, Mrs Shorey suffered from a deteriorating back. In April 1986, Dr A C Sengupta operated for chronic low back pain. Mrs Shorey had decompression and laminectomy of the L4-5 and L5/S1 levels because of lumbar canal stenosis, including facet joint fixation with compression screw at the L5/S1 level. At the trial, Mrs Shorey gave evidence, which the trial Judge accepted, that she had been pain-free for about eighteen months prior to the accident in 1988. This evidence was supported by that of Mrs Shorey's daughter, Tracey. Dr Sengupta's reports confirm this point. His report dated 14 August 1986 stated that, "Overall, she has made a satisfactory recovery and has no pain in her leg or any neurological symptoms …". On 31 October 1988, Dr Sengupta reported, of Mrs Shorey's recovery in 1986, "She made an uneventful recovery from the above operation and was progressing satisfactorily".
84 The results of the subject accident provide a sharp contrast. Mrs Shorey aggravated her back condition when she fell on 2 April 1988. She was admitted to Blacktown Hospital on the day of the fall and remained there until 21 April 1988. During that time, Mrs Shorey had an operation for the removal of recurrent bilateral plantar warts. However, it would seem that the period of stay in hospital was governed by her back condition. It was noted that, on arrival, Mrs Shorey was very distressed and appeared to be in a lot of pain. It was noted that she had severe tenderness of the lower back, that it was impossible to examine her back and that Mrs Shorey was given Pethidine. She was complaining of acute pain across the lumbar area and in the right hip and leg. Mrs Shorey came under the care of Dr Sengupta. Amongst other treatment, she was given manual traction of both legs. On 8 April 1988, it was noted that Mrs Shorey "may now ambulate gently with physio assistance". On 11 April 1988, it was noted that Mrs Shorey held her right foot in an extremely inverted position. Mrs Shorey assured the physiotherapist that this had been the situation for a few years. However, this appears to have been the first occasion on which such a habit, if there was one, was noted. Overall, Mrs Shorey's recovery was very slow. The nurses recorded difficulty in getting her to walk. On 21 April 1988, it was noted that Mrs Shorey was discharged with her husband via a wheelchair.
85 Dr Sengupta reviewed Mrs Shorey on 13 May 1988. He later reported that clinical examination on that day revealed "fairly marked tenderness in the lower lumbar region with restricted movement in all directions, but no obvious neurological deficit". He advised Mrs Shorey to continue with physiotherapy.
86 At some stage, Mrs Shorey commenced using a walking stick. Tracey gave evidence that Mrs Shorey obtained the stick from her son-in-law shortly after she came out of hospital, because she was finding it difficult to walk.
87 Dr Sengupta reviewed Mrs Shorey again on 20 June 1988. At this consultation, she complained of considerable pain and was walking with a stick, two factors which may have suggested regression rather than improvement. Dr Sengupta referred Mrs Shorey to a private physiotherapist to continue with that treatment. Dr Sengupta was of the view that Mrs Shorey did not suffer from any major problem with regard to her lumbar spine, apart from aggravating her long-standing facet joint arthropathy on a temporary basis. He expected that the aggravation would only be temporary.
88 An account from Neena Bajaj, a physiotherapist, shows that Mrs Shorey had eleven physiotherapy treatments from 24 June 1988 to 3 August 1988, the accounts for which were still unpaid in March 1996.
89 Dr Sengupta expected to see Mrs Shorey again but she did not return. Counsel for the appellant submitted that this indicated that, during the latter half of 1988, Mrs Shorey's problems cleared up and did not reactivate until after her husband's death in January 1989. However, insofar as there is evidence about the matter, it seems contrary to the submission. A possible, even probable, explanation as to why Mrs Shorey did not return to Dr Sengupta may be that she was dissatisfied with his diagnosis and advice. If she was suffering from functional overlay, as seems to me to be probable having regard to subsequent developments, then it is likely that she found Dr Sengupta's advice unpalatable.
90 Tracey Shorey gave evidence that, when her mother came home from hospital, she complained of pain in the back, that, "She would limp and shuffle" and that, "She would have to hold on to furniture to steady herself". She started using a walking stick. In general, she was in pain and limping badly. It was not put to Tracey, in cross-examination, as indeed it was not put to Mrs Shorey, that in the latter half of 1988, Mrs Shorey became free of back troubles. Indeed, it was specifically put to Tracey, in cross-examination, that it would be true to say that, subsequent to the accident, the pain in her mother's lower back and right leg appeared to become increasingly troublesome. Tracey misunderstood this particular question but, when it was put again, she said that the pain was increasingly troublesome from the day of the accident. Tracey said that her mother stopped doing many of the household chores, such as vacuuming, after the accident and that other members of the family took over those chores. Mrs Shorey hobbled around. Tracey said that, as her father became increasingly ill, and particularly whilst he was in hospital prior to his death, Mrs Shorey did not seem to give as much thought to her own self and, although one could see that she was in pain, she did whatever she could to look after her husband. Tracey said that Mrs Shorey was regressing all the way through. Later in cross-examination, she said that her mother had been bad from the time she came out of the hospital and, thereafter, she got steadily worse.
91 Records of the Blacktown Hospital show that Mrs Shorey attended on 15 September 1988. She was complaining that she felt dizzy and nauseous. The notes are difficult to read. They record that there had been a problem over the last 5-6 weeks related to her husband's terminal illness, that Mrs Shorey was unable to sleep well and that she had visited her husband that day and felt distressed. There are other notes of pain and distress.
92 On 15 November 1988, Mrs Shorey was admitted to Blacktown Hospital for a panendoscopy. It was noted that she had vomited whilst visiting her husband in hospital and was complaining of a tension headache and demonstrating mild distress. It was also noted that she walked in the ward and had a limp. There was no mention of a walking stick.
93 These events seem to me to show that, during 1988, Mrs Shorey developed a psychosomatic condition. Her recovery in hospital from the fall on 2 April 1988 was slow. Thereafter, she did not recover as Dr Sengupta expected she would. Evidence before the Court suggests that Dr Sengupta's view was correct, from an organic point of view. However, Mrs Shorey did not recover. She continued to feel pain. In June 1988, when she saw Dr Sengupta, she was complaining of considerable pain and was walking with a stick. Other members of her family took over the household chores. She attended the Blacktown Hospital in September and November 1988 with symptoms consistent with a psychosomatic problem.
94 I would accept Dr Phillips' evidence that there were several factors which played a particular role in the development of Mrs Shorey's psychosomatic condition. One was the fall in April 1988 and the pain which she suffered. Another was the distress that she felt as a result of her husband's terminal illness and later his death. In Dr Phillips' view, and also in Assoc Prof Yeo's view, factors such as pain and upset played a part, feeding upon and enhancing each other.
95 I need not describe the events surrounding Mr Shorey's death in January 1989 or Mrs Shorey's response to his death and to those events. It is clear that these matters played a contributing role in the development of Mrs Shorey's psychological disorder. However, in the view of Dr Phillips and Assoc Prof Yeo, which I accept, the pain which Mrs Shorey suffered following the fall in April 1988 also contributed. Mrs Shorey's reaction to her husband's death was excessive, but, so also was her reaction to the pain which she suffered as a result of the fall in April 1988. The two reactions were a part of one composite and rather bizarre disorder.
96 Dr J Bannister examined Mrs Shorey on 14 April 1989. He expressed the view, which is contrary to most of the medical evidence, that she required further surgery. Less than three weeks later, on 2 May 1989, Mrs Shorey attended Blacktown Hospital presenting with severe reactive depression and suicidal thoughts. Reference was made to her husband's death, not to her pain. Nevertheless, the proximity of the dates suggests a coincidence between the pain and the upset.
97 Thereafter, Mrs Shorey's condition deteriorated, with her presentation becoming increasingly bizarre. At some stage, Mrs Shorey's condition developed into a full-blown psychiatric disorder, a conversion disorder.
98 On the whole of the evidence, I would conclude, as did the trial Judge, that there was a gradual deterioration in Mrs Shorey's condition from the time of the accident in April 1988. I am satisfied that Mrs Shorey did not recover from the fall in 1988 as she should have done and that, by the second half of 1988, there were functional elements in her presentation. At the trial, the cross-examination was conducted carefully and with vigour. Yet, on this particular aspect of recovery during 1988, the only relevant question that was put to Mrs Shorey was this:-
"Q. You were mobile by this time, weren't you? You were able to walk?
A. I was walking, I believe, yes."
99 The crux of the cross-examination that was put to Tracey Shorey was as follows:-
"JONES: Q. Listen to this and I'll ask you something about it. Mrs Shorey said that her husband died in January 1989. First of all that's correct, isn't it?
A. That's right.
Q. From a malignancy, I think he had cancer, didn't he?
A. Cancer.
Q. And subsequent to this, pain in the lower back and right leg became increasingly troublesome. That's in fact what happened isn't it?
A. But it wasn't since my father's death it became increasingly - it seemed to be a continual thing. I must admit when my father was very, very ill and she was taking care of him she seemed to put herself back. She seemed to not concern herself with herself so much.
Q. She seemed like to be able to [do] more than she would otherwise be able to do?
A. She was still hobbling around. What I am saying is she didn't seem to take too much thought of her own self. I have seen her do things and I can see that she was in pain but she would do them, just by the look on her face. I assume she was doing it for the love of her husband.
Q. It was subsequent to your father's death that she appeared to regress?
A. She was regressing all the way through?"
100 Thus, at the trial, counsel passed very lightly over the events of 1988 and did not confront either Mrs Shorey or her daughter, Tracey, with the specific proposition that Mrs Shorey recovered during 1988 from the effects of the 1988 accident.
101 The trial Judge found:-
"… it seems to me that the plaintiff's slide into her now full-blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 when she began use of a walking stick and her husband became very ill and was diagnosed with cancer, or at the latest on or shortly after his death on 1 January 1989. Looked at in that context it seems to me that the psychological and physical factors then become intertwined. The psychological factors would not have manifested as they did without the back pain. While it may be true to say that had she not had back pain the plaintiff's psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point. She did have back pain. Just as frequently psychological complications occur in the recovery from physical injury, so this case is in principle no different. I find the plaintiff's conversion disorder caused by a variety of factors, including the fall in 1988 in respect of which the plaintiff sues."
102 I see no error in his Honour's conclusion. It appears to me to be well based upon the medical opinions which were before him, particularly the opinions of Dr Phillips and Assoc Prof Yeo, and well based also on the facts as established by the evidence. I would therefore dismiss the appeal on liability.
103 Both the appellant and the respondent have raised issues with respect to the damages awarded. In the light of the opinions of my colleagues, it is unnecessary for me to deal with this issue in any detail. Mrs Shorey is disabled because she thinks she is disabled and she suffers pain because her mind told her she suffered pain and the pain has become established. However, I do not think that it would be proper to allow the substantial claims for house modification or for future care which were put forward. These items would tend to confirm to Mrs Shorey her view of her condition. The treatment that she requires is treatment to change her mind-set. Moreover, in this case, there is at least a considerable possibility that, once the legal proceedings have been concluded, Mrs Shorey may well show signs of recovery. There is the further point that Mrs Shorey was, I believe, susceptible to a psychosomatic disorder. Although none such had developed before her fall on 2 April 1988, she had had quite a number of visits to hospitals before the fall. Amongst the complaints recorded, from time to time, were complaints of pain. On 2 March 1984, Dr Farrar reported:-
"Mrs Shorey was somewhat agitated and I think that her breathlessness might have been due to anxiety, this might also have been the cause of her gastritis and pain. She has in fact had considerable anxieties in her family in the last year."