Whalan v Kogarah Municipal Council

CASES CITED: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Mifsud v Campbell (1991) 21 NSWLR 725

PARTIES: Diane Whalan (Appellant) Kogarah Municipal Council (Respondent)

COUNSEL: B Dooley (Appellant) R Sheldon (Respondent)

SOLICITORS: Owen Hodge Lawyers (Appellant) Phillips Fox (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40944/05 DC 4824/03

MASON P IPP JA TOBIAS JA

Friday 9 February 2007 DIANE WHALAN v KOGARAH MUNICIPAL COUNCIL Judgment 1 THE COURT: This is yet another appeal from the District Court that must succeed by reason of the manifest inadequacy of the trial judge's reasons. The authorities that govern judges' duties to give reasons are, or should be, permanently engraved in the minds of all judicial officers. These duties are designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party. Judges should be as familiar with these duties as they are with the route they travel each day to work. Unhappily, however, some still get lost. 2 The case brought by the appellant (Ms Whalan) was straightforward. She claimed damages for personal injuries from the respondent Council. She alleged that she had been injured on 12 February 2003 when she walked into a bar that protruded from a bus shelter under the Council's control and fell to the ground. 3 In a reserved judgment, the trial judge, Coorey DCJ, found that the Council had been negligent and its negligence had caused Ms Whalan to be injured. These findings are not the subject of the appeal. 4 In determining damages, Coorey DCJ assessed non-economic loss at $6,000, past economic loss at $1,940, past out-of-pocket expenses at $10,143 (an agreed figure), and $13,000 in respect of future economic loss. The total of damages so assessed was $31,083. It is this assessment that has given rise to the appeal. 5 Ms Whalan was 51 years of age at the date of the trial. She is a qualified dental nurse and commenced employment in that capacity in January 1969. Apart from periods when she ceased work or worked part-time by reason of her need to care for her four children, Ms Whalan worked full-time until she was injured on 12 February 2003. She returned to work on 14 February 2003 but worked for one day only. On 12 March 2003, she recommenced her work but on 21 April 2003 she fell at Scarborough and twisted her ankle. She then took about four days off work but, on 5 May 2003, her injuries caused her to cease work completely. 6 At trial Ms Whalan complained, essentially, of the following symptoms:

(a) Constant and debilitating pain to her right shoulder radiating down her arm to the level of her hand;

(b) Paraesthesia and intermittent numbness radiating from the right shoulder to the hand;

(c) Weakness of her right arm (she is right-hand dominant);

(d) Dull, constant, aching pain at her neck, accompanied by persistent stiffness;

(e) Pain in her lumbar spine radiating to the posterior aspect of her right leg down to the level of her ankle;

(g) Depression. 7 At trial, only Ms Whalan and her husband gave oral evidence. The reports of about 19 medical practitioners were tendered in evidence. There was a conflict, generally, between the opinions expressed in the expert reports tendered by Ms Whalan and those tendered by the Council. As a general rule, the medical practitioners whose reports were tendered by Ms Whalan accepted her account of her injuries and were of the opinion that her symptoms, in the long term, would persist. The medical practitioners whose reports were tendered by the Council, generally speaking, were more sceptical about the extent of Ms Whalan's injuries and the degree to which she was suffering. Their prognosis was more optimistic. Some of the Council's medical practitioners thought that Ms Whalan was exaggerating her symptoms. 8 Coorey DCJ said that he had "serious doubts about the plaintiff's evidence in relation to her injuries and the effect of her injuries". He said, further: "I have a lot of difficulty with the medical evidence presented on behalf of the plaintiff. It is abundantly clear that the plaintiff has not been frank in giving her doctors a complete history of her pre-existing problems, nor in relation to her later fall some weeks after the bus shelter fall. The medical evidence has very limited value in trying to assess the effect of the bus shelter fall on the plaintiff's health and lifestyle. I am satisfied that the bus shelter fall was not a major accident and I am satisfied that the plaintiff has not been frank with this Court. I cannot say that the plaintiff's ongoing complaints have been substantially caused by her fall on 12 February 2002 but I do find that the plaintiff suffered sufficient to necessitate a short time away from work and I do find that she was then able to return to her pre-accident work until she suffered a further accident some weeks later. It seems to me that I can be satisfied that the plaintiff had an injury to her shin on 12 February 2003 which did not cause her much problem, but any symptoms from this relatively minor injury were overtaken by the plaintiff's fall at Scarborough. It seems that the symptoms from the later fall were similar to the pre 1993 symptoms suffered by the plaintiff." 9 The judge's reasons leading to these conclusions are brief. They are contained in two segments of his judgment. Each needs to be examined. 10 The first segment is the following: "[Ms Whalan] conceded that before 12 February 2003 she suffered from a number of problems. It was clear that even before the accident of 12 February 2003 [Ms Whalan] suffered from anxiety, depression, chronic fatigue syndrome, tiredness, lethargy, panic attacks, general pain in her body, feelings of numbness and tingle, scalp tenderness, neck and arm pain, severe lower back pain, shoulder pain, headaches and irritable bowl syndrome." 11 It was common ground that Ms Whalan had disclosed to virtually all the medical practitioners whose reports were tendered that she had suffered from chronic fatigue syndrome, anxiety and panic attacks for some years before the accident on 12 February 2003. For many years she had experienced serious family problems and these, obviously, had contributed to her psychological condition. 12 The judge, therefore, was justified in finding that Ms Whalan had conceded that, before the accident, she had suffered from anxiety, chronic fatigue syndrome, tiredness, lethargy and panic attacks. She had made no secret of this fact at any time. No point arises from Ms Whalan's testimonial concessions about these symptoms. 13 The important question, however, is whether Ms Whalan conceded, that, before the accident of 12 February 2003, she experienced any of the other symptoms listed by the judge (that is, other than those referred to in the previous paragraph). The judge found that Ms Whalan made a concession in these terms, but she disputed this. 14 On our reading of the transcript, the only concessions Ms Whalan made as to other symptoms were that, from time to time, she had experienced headaches, scalp tenderness, mild depression (related to her anxiety and panic attacks), and back and leg pain from gynaecological problems. She also accepted that there was a possibility that she had had "slight neck and arm pain". 15 We have been unable to find any concession by Ms Whalan that, before the accident of 12 February 2003, she suffered from general pain in her body, "feelings of numbness and tingle", serious neck and arm pain, severe lower back pain, shoulder pain or serious depression. Mr Sheldon, who appeared for the Council, rightly accepted that Ms Whalan had not made any concession in these terms. The importance of these symptoms is that they form the basis of Ms Whalan's claim for damages flowing from the accident of 12 February 2003. The judge's finding that Ms Whalan conceded that, before the accident, she suffered from these symptoms is not only unexplained it is simply wrong. This is an important error as it goes to the heart of Ms Whalan's case. 16 Mr Sheldon submitted that, even though Ms Whalan had made no concession as to the pre-existence of these critical symptoms there was evidence on which the judge could have relied to conclude that she experienced the symptoms before the accident. In particular, Mr Sheldon relied on a report dated 19 December 2002 from a haematologist, Dr Kwan, and the "progress notes" of Ms Whalan's general practitioner, Dr Lugton. 17 In his report of 19 December 2002, Dr Kwan stated: "I note her complaint of numbness and tingling down the arms and the fingertips."

This report was provided before the accident of 12 February 2003. In cross-examination, Ms Whalan denied that she had complained to Dr Kwan of numbness and tingling down her arms and fingertips. 18 According to the progress notes of Dr Lugton, on 3 November 2001, Ms Whalan complained to him about the weakness of her grip and on 16 May 2002 she complained to him of neck and arm pain. In cross-examination, Ms Whalan could not recall having told Dr Lugton in November 2001 that she had problems in her left hand that resulted in difficulties with her grip. She did not recall the consultation on 3 November 2001 with Dr Lugton and what she told him then. She said that it was very difficult for her to remember as far back as those consultations. She said her memory was not good unless there were specific things that stuck in her mind. 19 Dr Lugton's progress notes record some 105 consultations with Ms Whalan over a period of almost four years. The trial took place in March 2005. It is perfectly understandable that Ms Whalan had difficulty in remembering what she had told Dr Lugton four years previously in two consultations when she had seen him on more than one hundred occasions. 20 In the circumstances, the brief reference in Dr Kwan's report of 19 December 2002 to Ms Whalan's complaint of numbness and tingling down her arms and fingertips and the references to neck and shoulder pains in Dr Lugton's notes on two occasions over a period of almost four years constitute a tenuous and unsatisfactory basis for a finding that Ms Whalan misled some 19 medical practitioners about her previous medical history and thereby materially affected the conclusions to which they came. We would add that, in any event, whatever the effect of that evidence, it cannot cure the error his Honour made when recording concessions that, in his view, Ms Whalan made when, in fact, she did not make them. 21 We turn now to the second segment of his Honour's reasons that purported to explain why he had rejected the evidence of Ms Whalan and the reports of the medical practitioners she tendered. 22 His Honour said: "In cross-examination she was asked a number of questions and she gave very unsatisfactory answers. She was asked whether she had complained in December 2002 of numbness and tingling down the arms and fingertips, she replied 'No'. I find it very difficult to believe her answer. It was also put to her that she had told a doctor in December 2002 that she had suffered from chronic fatigue syndrome for 20 years. She answered 'I did not say that'. It was also put to her that she went to Dr Kwan, this is before the time of the accident because of feelings of tiredness, the plaintiff had no recollection of that. The plaintiff said she had had no recollection of having feelings of numbness and tingling in 2002. It seemed to me that her answers such as 'I do not recall' did not seem to be frank answers. I had a lot of difficulty accepting her as a reliable witness. It was clear that she had taken medication before the time of this accident for numerous problems. It was put to her that on 16 November 2001 she had told a doctor that she could not work because of tiredness and lethargy. Her answer was 'I don't recall that'. In November 2001 she had also complained of an inability to grip things with her left arm but once again her answer was that she did not recall. She was also asked 'Do you remember having shoulder pain in November 2001? A. No'." 23 These remarks contain a number of particular difficulties, namely:

(a) The judge said that, when it was put to Ms Whalan that she went to Dr Kwan "because of feelings of tiredness", Ms Whalan did not recall this having happened. In fact, the transcript reveals that Ms Whalan said that she saw Dr Kwan "because [she] was tired" and she agreed that she would have told Dr Kwan that she "was very tired".

(b) According to the judge, Ms Whalan said that she had no recollection of having feelings of numbness and tingling in December 2002. In fact, Ms Whalan denied that she had feelings of numbness and tingling in her arms and fingertips. She denied that she had complained to Dr Kwan about these symptoms. The judge said that he found it very difficult to believe her denial and it did not seem a frank answer. However, he failed to explain or provide reasons for those conclusions.

(c) According to the judge, it was put to Ms Whalan that on 16 November 2001 she had told "a doctor" that she could not work because of tiredness and lethargy. According to his Honour, Ms Whalan replied, "I don't recall that". On 16 November 2001, Ms Whalan saw Dr Lugton. In cross-examination, Ms Whalan first agreed that she had told Dr Lugton that she could not work because of tiredness and lethargy but shortly after that she said that she was confused with the dates and she did not recall that happening. She said that, because she only started to work at a new job on 31 October 2001, "there was no way [she] would be going to see Dr Lugton to say [she] couldn't work". She then gave a more detailed explanation that supported this answer. 24 Several of the other matters set out in the above-quoted passage from his Honour's reasons (in the course of explaining why he had serious doubts about Ms Whalan's evidence) call for comment. 25 The judge observed that it was put to Ms Whalan that she had told Dr Kwan in December 2002 that she had suffered from chronic fatigue syndrome for 20 years. This statement was recorded in Dr Kwan's report. Ms Whalan denied that she had said this to Dr Kwan. This denial contributed to his Honour's "serious doubts" about Ms Whalan's evidence. 26 Dr Lugton, in a number of letters to other specialist medical practitioners, said that Ms Whalan had begun to suffer from chronic fatigue syndrome in 1997. To this extent his report supported her denial that she had informed Dr Kwan that she had suffered from chronic fatigue syndrome for as long as 20 years. In any event, the length of time from which she suffered from chronic fatigue has no relevance to the issues in the case. In the circumstances, one would hesitate long before finding that Ms Whalan deliberately lied in denying that she had suffered from chronic fatigue syndrome for 20 years. It is difficult to find a basis on which her denial could support a finding that she was an unreliable witness especially given that the only point of the cross-examination on this issue was whether she had suffered from that particular disability for as long as 20 years. 27 The judge observed that Ms Whalan "had taken medication before the time of this accident for numerous problems". This is undoubtedly true, but she had never denied this and most, if not all, of the symptoms for which she took the medication were not symptoms that she claimed were caused by the accident of 12 February 2003. Thus, her numerous medical problems that she disclosed had little bearing on her claim. 28 The judge observed that in November 2001 Ms Whalan had complained of an inability to grip things with her left arm but, when cross-examined, she said that she did not recall this. Whether she did complain of this weakness was in dispute. The only evidence that she did so was a terse note in Dr Lugton's progress notes. In any event, Ms Whalan claimed that in the accident of 12 February 2003 she had injured her right arm, not her left arm. Ms Whalan claimed that in the accident of 12 February 2003 she had landed heavily on her right shoulder thereby sustaining injuries to her right neck, shoulder and forearm: she never suggested that she suffered any injury to her left arm. 29 The judge relied on the fact that Ms Whalan was asked whether she remembered having shoulder pain in November 2001 and she replied in the negative. This question was based on Dr Lugton's progress notes. We have already remarked on the difficulties in expecting Ms Whalan to remember what was said in particular consultations three and a half years after the event. 30 In summary, the grounds on which his Honour determined that he had serious doubts about Ms Whalan's evidence were, in several respects, wrong and, in other respects, unconvincing. 31 The judge made the general observation that Ms Whalan had not been "frank in giving her doctors a complete history of her pre-existing problems, nor in relation to her later fall some weeks after the bus shelter fall." For that reason he concluded: "The medical evidence has very limited value …". 32 It is correct that, according to their reports, several of the approximately 19 medical practitioners who provided reports were not given a complete history of Ms Whalan's prior medical condition. In virtually all reports, however, a full history was given of her psychological problems, including her panic attacks and her chronic fatigue syndrome. In other reports this account was supplemented by a history of physical symptoms. Further, some of the medical practitioners, who did not recount a full history having been given to them by Ms Whalan, were given other reports in which a more detailed history had been given. In many instances, the practitioners carried out clinical examinations and recorded their findings, several of which supported Ms Whalan. In these circumstances, it was quite inappropriate to place all the doctors in the same pigeonhole. The issue required careful analysis to determine whether any particular doctor had been misled and, if so, to what extent. No analysis of any kind relating to this question was undertaken. 33 We would add that Dr Robertson, a psychiatrist, reported that Ms Whalan "gave a clear history without evidence of exaggeration" and "undoubtedly developed a depressive disorder as a result of the accident of 12 February 2003". Dr Robertson's report, particularly, needed to be separately addressed. It was not. There were many other reports by other medical practitioners who supported Ms Whalan's version that were also deserving of individual attention, if only by reason of the detailed and specific findings they made based on their clinical examinations of Ms Whalan (apart from what they were told by her). 34 The effect of the judge's findings on Ms Whalan's reliability as a witness with respect to her injuries was that she was exaggerating the symptoms of which she complained to the medical practitioners who examined her. In his report of 24 February 2004 Dr J A Ditton, a consultant in pain management, noted that Ms Whalan complained of pain over the right side of her body and that she had said that that pain was present in her head, neck, right shoulder and right arm, the right side of the back, her right buttock and right leg. Dr Ditton's diagnosis was that she had suffered soft-tissue injuries to her upper back and shoulder. However, being aware of her history of depression and chronic fatigue syndrome, he relevantly observed that that history "may also be associated with increased susceptibility to chronic pain." 35 We have already referred to the reports of Dr Robertson. In his report of 19 January 2004 he was of the opinion that Ms Whalan had undoubtedly developed a depressive disorder as a result of the accident and that her chronic pain, inability to continue work and to take part in her normal domestic and leisure activities together with a feeling that she had lost her independence had been the main factors which had precipitated and perpetuated that disorder. Importantly, in his report of 1 March 2005, having expressed the view that she had developed a major depression which had become chronic, he made the following pertinent observation: "The interrelationships between chronic pain and depression have always been of interest to psychiatrists, and it has always been appreciated that chronic pain prolongs depression, and that depression increases the perception of pain, whatever the cause of the pain." 36 The judge did not deal with this evidence. He neither accepted nor rejected it: he simply did not refer to it. And yet it provides an explanation as to Ms Whalan's complaint of chronic pain which, apparently, the judge considered to be exaggerated. Acceptance of the foregoing observations of Drs Ditton and Robertson would have explained and justified what the judge otherwise concluded to have been a deliberate overstatement by Ms Whalan of her symptoms. 37 The judge said that he was satisfied "that the bus shelter fall was not a major accident". This does not seem at first glance to be a point of any importance but it was used by his Honour to bolster his decision to reject the medical evidence that Ms Whalan suffered long-term and substantial harm in the accident. His Honour gave no explanation for this conclusion. There was medical evidence to the effect that the accident was "significant" because it had occurred unexpectedly so that Ms Whalan had fallen heavily on her right shoulder without being able to break her fall. She said that she felt as if she had been hit by a truck. A number of medical practitioners expressed opinions to the effect that the nature of her fall had a substantially deleterious effect on her health. This too, was an issue that required more than a summary, conclusory, statement. 38 Last, but not least, Coorey DCJ said: "Any symptoms from this relatively minor injury were overtaken by the plaintiff's fall in Scarborough."

In that fall Ms Whalan stubbed her left toe and twisted her left ankle. She saw Dr Lugton whose notes refer specifically to that fall noting an injury to her left foot only. No doctor suggested that it caused the symptoms of which she complained at the trial although many were unaware of the incident. However, although Ms Whalan was criticised by the judge for not informing the doctors of this incident, her explanation for not doing so was that she had recovered from her injuries and they had had no effect on those that she had sustained in the 12 February accident. 39 The only evidence said to support the judge's contrary finding was a statement contained in a report of Mr Anthony Lo, physiotherapist, of 24 May 2003 in which he noted that on 21 April 2003 Ms Whalan was walking down a grassy slope, stepped unknowingly into a hole with her left foot, "which caused her to fall onto the right shoulder and further exacerbate the pain". Apart from Mr Lo's report, Mr Sheldon was unable to refer the Court to any evidence in support of the judge's finding that her symptoms relating to the injuries sustained by her on 12 February 2003 had been overtaken by her fall at Scarborough. On our reading of the material, there was no such evidence. Mr Lo's observation does not justify the judge's finding. 40 All in all, the judge's reasons did not engage with the case presented by Ms Whalan. The omission on the part of his Honour to deal with so much material evidence denied "both the fact and the appearance of justice having been done" (per Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728). To paraphrase Samuels JA in that case, this has worked a miscarriage of justice, has produced a mistrial, and is reviewable on appeal. The omission of the judge to refer to evidence that was important and indeed critical to the proper determination of the matter gives rise to the inference that he overlooked the evidence or failed to give consideration to it: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443 per Meagher JA. 41 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. Those reasons were conspicuously absent in the present case. 42 The criticism of the judge contained in this judgment may be thought to be severe, but the inadequacy of reasons is not an infrequent issue in this Court with respect to appeals from the District Court. The parties in the present case have been put to unnecessary expense in litigating the appeal and will be put to further expense in conducting a new trial on the assessment of damages. Furthermore, in such cases plaintiffs such as Ms Whalan may be kept out of a proper verdict over a lengthy period to which they would have had access had the judgment complied with the basic principles of judicial reasoning. 43 Counsel for Ms Whalan sought an order that the matter be remitted to the District Court for retrial. In our opinion such an order must be made. 44 This appeal was brought by leave. At the leave application the Court drew the attention of Ms Whalan's legal representatives to the fact that the papers had not been paginated and indexed and made it crystal clear that a proper index, particularly of the medical reports, should be prepared for the hearing of the appeal. This was not done. The medical reports are merely described in the index as a bundle of reports and they are not individually itemised. It emerged during the hearing of the appeal that the omission to index the medical reports was caused by inadvertence on the part of Ms Whalan's solicitors. Counsel for Ms Whalan said that there was "no excuse to offer". Mason P informed counsel for Ms Whalan that the Court would be minded to order Ms Whalan's solicitors to bear the costs of the blue book, that is, make the costs of the blue book not recoverable against the Council or Ms Whalan herself. Counsel for Ms Whalan said that he did not wish to say anything in relation to that matter and stated expressly that he made that concession on behalf of Ms Whalan's solicitors. 45 The following orders should be made:

(b) The judgment of Coorey DCJ as regards the assessment of damages is set aside. The matter is remitted to the District Court for a new trial as to damages.

(c) Save as regards the costs of the blue book (the cost of the blue book not being recoverable from the Council or from Ms Whalan), the Council is to pay the costs of the appeal. **********

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