Findings of feigning based on the trial judge's own knowledge of medical tests
67 The appellant submitted that his Honour misunderstood one of the tests that was conducted by Dr Papatheodorakis (a straight leg raising test) and on the basis of that misunderstanding, made the findings that the appellant was feigning his disability and that he failed to cooperate with doctors during the course of medical examinations undertaken to assess his degree of disability for the purposes of his claim. Dr Papatheodorakis was the medical practitioner appointed to undertake the MAS assessment.
68 This particular complaint is articulated in grounds 6-8 of the grounds of appeal.
69 Dr Papatheodorakis recorded the appellant's complaints as being low back pain, including occasional "pins and needles" through the whole of his left lower limb, associated with occasional weakness about both lower legs; and occasional radiation of the pain down either his right or left leg, although this was not experienced as frequently as had previously been the case. Dr Papatheodorakis recorded a discrepancy in straight leg raising tests.
70 Dr Papatheodorakis considered that the appellant appeared genuine in his presentation, although he also noted inconsistencies during clinical examination. Dr Papatheodorakis was of the opinion that the appellant was depressed and "exhibited a significant non-organic (non-injury) component to his presentation" which he felt was a major cause of the appellant's alleged persistent ongoing chronic pain symptoms.
71 His Honour noted, at [89], that it was significant that the "straight leg raising was sixty degrees bilaterally on the Lasegue's test but was ninety degrees on Hoover's test". His Honour stated this was "clear evidence of feigning". There was, however, no reference by Dr Papatheodorakis in his report to either "Lasegue's test" or "Hoover's test". Nor did Dr Papatheodorakis make any finding that the appellant was feigning, that is, deliberately fabricating his symptoms.
72 The appellant's specific complaint about his Honour's reference to Hoover's test was that his Honour erred in the identification of the test undertaken by Dr Papatheodorakis. He contended that a reference to medical dictionaries, such as "Butterworths Medical Dictionary", 2nd ed; or "Schmidt's Attorneys' Dictionary of Medicine"; indicate that "Hoover's test" is performed with the patient lying on their back and being instructed to elevate one leg, at which time the examiner places their palm under the heel of the other leg, to test for pressure against the examiner's palm. It was submitted that nowhere in Dr Papatheodorakis' report is a reference made to a test of this nature.
73 The respondent did not accept that this description of "Hoover's test" was correct, although he did not assert that it was a wrong reference. The respondent conceded, however, that it is apparent that his Honour relied upon his own knowledge and interpretation of the medical tests undertaken by Dr Papatheodorakis. However, he said that if his Honour was in error in naming the test, then that simply demonstrated that his medical knowledge was less than perfect. That submission, in itself, demonstrates the problem with his Honour relying upon his own medical knowledge to determine the appellant's claim.
74 Leaving that aside however, the respondent's response to this particular complaint is that whatever the test was properly called, it was apparent that the doctor undertook a test which showed clear evidence of non-cooperation, or feigning, on the part of the appellant.
75 The appellant's reference to medical dictionaries can be put to one side, because there is another difficulty in the respondent's submissions. Dr Papatheodorakis did not state that the appellant was uncooperative or that he was feigning. Rather, he reported his clinical findings in these terms:
"Straight leg raising was to 60 degrees for both lower limbs in the supine position, though on sitting, Mr Strinic could straight leg raise to 90 degrees for both lower limbs and he did not exhibit or complain of any discomfort."
76 Then, in referring to the appellant's "consistency of presentation", Dr Papatheodorakis commented:
"In my opinion, I feel that Mr Strinic is depressed, and though I feel he was genuine in his presentation, he exhibited a significant non-organic (non-injury) component to his presentation, which I feel is a major cause of his present alleged, persistent ongoing chronic pain symptoms."
77 Senior counsel for the respondent eventually conceded that neither Dr Papatheodorakis, nor any other doctor, stated that the different results in the two straight leg raising tests was evidence of feigning.
78 This raises the critical point in relation to these particular grounds of appeal. A finding that a person is "feigning" at least in the terms made by his Honour, is a definitive adverse credit finding. His Honour, at [89], not only made a finding that the results of the straight leg raising test was "clear evidence of feigning", he returned to this as part of his consideration of the appellant's credibility, at [104]-[109]. His Honour considered that the appellant was depressed in the witness box, which made it hard to gauge his credibility. His Honour described, at [104], the appellant's demeanour as "quite flamboyant" in describing his pain levels and that, likewise, he was "flamboyant in telling medical practitioners about the level of his pain", but that "flamboyance in expression" could be forgiven, especially where English was not the appellant's first language.
79 At [105], his Honour made his ultimate credit finding in these terms:
"However, exaggeration in verbal expression is very different to exaggeration and feigning of physical signs when being examined by medical practitioners. Here it is very evident to me that the [appellant] has feigned on medical examination and failed to cooperate with doctors. That is inexcusable. Of course the [appellant] only hurts himself by so doing, because it causes medical practitioners to say that there is nothing wrong with him because they believe him to be malingering, even if they do not say that in those terms ." (Emphasis added)
80 A trial judge's assessment of the credit of a witness is protected by the advantage that the judge has in seeing and hearing the witness. There are subtle influences of demeanour to which an appellate court is not privy. The principles that govern such an assessment are well rehearsed: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1. It is a different matter where the assessment of credit is based on wrong factual findings, unless the wrong fact-finding is irrelevant or not so critical as to undermine the advantage that the trial judge otherwise has in assessing the evidence of the witnesses.
81 The issue here is not, directly at least, one of an adverse credit finding based on erroneous findings of fact. Rather, the adverse credit finding was based on a finding that the trial judge made from his own medical knowledge. I have already referred to the principles governing a trial judge's fact-finding obligations in a court such as the District Court. His Honour's assumptions and findings in respect of the straight leg test and the conclusion he reached breached that obligation. As the differential result was a critical matter in the assessment of the appellant's claim, I would consider that his Honour's reliance on his own medical knowledge to make the adverse credit finding was sufficient to impugn the judgment.
82 The respondent contended, however, that this finding was supportable (as discussed below), although he accepted his Honour wrongly labelled the straight leg raising test done in a sitting position as "Hoover's test". It was argued that this is of little significance, given that Dr Papatheodorakis clearly noted inconsistencies during the examination of the appellant. In particular, Dr Papatheodorakis observed that the appellant moved his head and back freely in conversation when distracted, but otherwise sat stiffly; movements of the cervical spine were performed slowly and deliberately, although this was less noticeable in conversation; there was a superficial tenderness to light touch in a generalised non-reproducible distribution about the lumbar-spinal region; lumbar spinal movements were globally reduced, although this was not reproducible to repeated testing in any specific movement; and, there was the difference in the straight leg raising test in the two different positions.
83 It was apparent therefore, on the respondent's submission, that Dr Papatheodorakis considered that these inconsistencies did not support the appellant's complaints of "persistent significant injuries", because he found there was no clinical evidence in relation to the cervical or lumbosacral spinal regions. The respondent pointed out that although Dr Papatheodorakis accepted that the appellant was genuine, he thought that there was a non-organic aspect to his presentation, to which I have already referred. It followed on this submission that it was Dr Papatheodorakis' view that the appellant, whether intentionally or not, was feigning his injury and there was ample evidence for the trial judge to conclude the appellant was not a reliable historian.
84 The respondent submitted that his Honour's finding was reinforced by other matters, such as the appellant's assertion that his condition was getting worse, the inconsistent history regarding his ability to sleep and the non-anatomical complaint of numbness in the whole leg. The respondent also asserted in his written submissions that Dr Papatheodorakis found feigning. This last submission is not correct and may be ignored. The other matters relied upon are subject to challenge by the appellant. I have concluded, however, that these particular matters are not of great significance in the overall challenge to the judgment and can be put to one side for the purpose of determining whether there is sufficient evidence to support the judgment.
85 More relevant is the respondent's reliance on the opinions of Drs Limbers and Parameswaran, whose evidence the trial judge accepted. Dr Limbers was of the opinion the appellant's symptoms were "out of proportion and thus inconsistent with clinical findings". Dr Parameswaran was not convinced that the appellant's symptoms were genuine. The respondent also relied upon his Honour's finding that, having observed the appellant in the witness box, his Honour concluded that he was "quite flamboyant" in relation to his evidence regarding the level of his pain.
86 His Honour was entitled to accept the evidence of these two witnesses, as well as to act upon his own observations of the appellant in the witness box. However, one of the bases upon which his Honour held that the appellant "feigned on medical examination" was founded on the results of the straight leg raising tests, referred to by his Honour at [89]. It is the strongest finding his Honour makes in relation to the issue of the appellant's credit. It is likely, indeed probable, that his Honour's view on this: viz the reference to "clear evidence" led him to more readily accept the opinion of Dr Parameswaran. Accordingly, even though there was other evidence upon which his Honour could rely in relation to the appellant's credit, one of the critical bases upon which he made that finding cannot be supported.
87 Another basis upon which his Honour made his adverse credit finding against the appellant derived from the histories given to Drs Limbers and Parmeswaran. At [41], his Honour noted Dr Limbers' opinion that the appellant's symptoms were "out of proportion to the findings on examination" and "inconsistent with the clinical findings". His Honour also considered, at [42], that the complaint made to Dr Parameswaran, who saw the appellant on the same day as did Dr Limbers, of "pain running down both limbs, the left being more severely affected than the right", was "quite inconsistent with what he told Dr Limbers".
88 The complaint made to Dr Parameswaran, as recorded in his report of 27 February 2001, was that the appellant said "he now has pain running down both lower limbs, the left worse than the right". The complaint recorded by Dr Limbers was that the appellant "did not suffer from radiating leg pain although occasionally he feel [sic] some funny feeling in the left leg, mainly around the left thigh".
89 There is a difference between these two statements and his Honour was entitled to take the difference into consideration. The complaint to Dr Parameswaran was of pain running down both lower limbs, whereas the complaint to Dr Limbers was of a "funny" feeling in the left leg only. It is improbable that the appellant said to Dr Limbers in express terms that "he did not suffer from radiating leg pain". That description is undoubtedly the doctor's medical interpretation of the complaint that was made. It is not clear, however, whether his Honour's finding of inconsistency between the two complaints relates to a complaint of no radiating pain, as compared to pain running down both lower limbs (that is, radiating pain), or whether the inconsistency relates to the reference to both legs, as compared to the left leg only. Neither medical report indicates what questions were asked to elicit the symptoms recorded, which might have assisted in assessing whether there was a relevant difference in the history given by the appellant.
90 Accordingly, whilst it was open to his Honour to have regard to the differences in the two reports, his finding of significant inconsistency between the symptoms recorded involves unexplained assumptions and therefore diminishes the force of the finding: see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. This is the more so when regard is had to the reports of Drs Bleasel and Dixon. The history taken by Dr Bleasel was of pain in both legs, particularly the left and pins and needles in the left leg, particularly in the morning when it felt almost completely numb (see at [40] above). That description is not relevantly different from that recorded by Dr Limbers. Dr Dixon's evidence was also to a similar effect (see [53] above). Likewise, Dr Bleasel's evidence was of a report of pain in both legs, but, more particularly, the left. A consideration of the evidence as a whole does not, therefore, in my opinion, throw up an inconsistency of the significance that his Honour appears to attach to it.
91 However, accepting that the finding his Honour made in relation to the inconsistency in the reports of Drs Parameswaran and Limbers was open to him, that does not overcome the difficulty that I have discussed in respect of his Honour's finding that the appellant "feigned" symptoms, when that was not a finding made by the reviewing doctor.
92 A finding that the appellant was deliberately fabricating his symptoms, which was the finding made by the trial judge, needs to be made with care. It is, in effect, a finding of fraud. It was open to his Honour to reject the appellant's case, in whole or in part, given the evidence of inconsistent presentations to various doctors. However, the effect of his Honour's finding was that the appellant had deliberately concocted symptoms. For the reasons that I have given, that finding was not properly based in the evidence and for that reason, error in his Honour's reasoning process has been demonstrated.