Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lu v Heinrich [2014] NSWCA 349
• Hearing dates: 4 April 2014
• Decision date: 14 October 2014
• Before: McColl JA at [1], Basten JA at [93], Sackville AJA at [135]

Decision

(1) Appeal allowed.

(2) Set aside the orders made in the District Court on 12 November 2012.

(3) Remit the matter to the District Court for a new trial limited to damages.

(4) Cost of the first trial to be in the discretion of the judge presiding at the second trial.

(5) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - damages - motor vehicle accident - plaintiff injured when stationary motor vehicle he was driving struck from behind by respondent's vehicle - liability admitted - no contributory negligence - extent of appellant's physical and psychiatric injuries in dispute - conflicting medical reports - primary judge rejected plaintiff's contentions as to extent of physical injuries and existence of causal connection between any psychiatric condition and - whether primary judge's reasons engaged with plaintiff's medical case - whether process of fact finding miscarried; APPEAL - new trial - whether substantial miscarriage of justice; LEGAL PRACTITIONERS - conflicting medical reports - obligation of counsel to address trial judge as to how conflicts should be resolved
• Legislation Cited: Civil Procedure Act 2005 (NSW); Motor Accidents Compensation Act 1999 (NSW); Suitors' Fund Act 1951 (NSW); Supreme Court Rules 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW); Workers Compensation Act 1987 (NSW)
• Cases Cited: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458; Dixon v Whisprun Pty Ltd [2001] NSWCA 344; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186; Keith v Gal [2013] NSWCA 339; Mason v Demasi [2009] NSWCA 227; Mastronardi v New South Wales [2007] NSWCA 54; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389; P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; PT v Shorey [2001] NSWCA 127; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33; Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Tory v Megna [2007] NSWCA 13; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
• Category: Principal judgment
• Parties: Mau Quoc Lu - Appellant; Moya Heinrich - Respondent
• Representation: Counsel; R Sheldon SC/E Welsh - Appellant; K P Rewelll SC - Respondent; Solicitors; Brydens Law Office - Appellant; Moray & Agnew - Respondent
• File Number(s): CA 2012/375626
• Publication restriction: No

Decision under appeal

• Citation: Lu v Heinrich (District Court (NSW), Finnane QC DCJ, 22 October 2012, unrep)
• Date of Decision: 2012-10-22 00:00:00
• Before: Finnane QC DCJ
• File Number(s): DC 2010/148829

Judgment

1 McCOLL JA: The appellant, Mr Mau Quoc Lu, was injured on 21 February 2003 when the motor vehicle he was driving was struck from behind by a motor vehicle driven by the respondent, Moya Heinrich. The appellant's vehicle was stationary at the time of the collision.

2 The appellant filed a statement of claim in the District Court on 15 June 2010, seeking to recover damages in respect of the injuries he said he had suffered as a consequence of the accident.

3 The respondent admitted breach of duty of care, but pleaded contributory negligence. His Honour Judge Finnane QC found the respondent had failed to establish the appellant had been guilty of contributory negligence, having regard to the fact that the appellant's vehicle was stationary at the time of the accident: primary judgment ([at 2]). There is no challenge to this finding.

4 The appellant particularised injuries to his neck, head, back, both arms, both legs, shock and, too, psychiatric injury and sequelae pain and restriction of movement, inability to continue his former job, severe psychiatric illness and the need for assistance with tasks of a personal and domestic nature. At trial however his case was principally put as a psychiatric one.

5 The appellant could not establish that he had suffered a degree of permanent impairment which would enable him to recover non-economic loss (s 131, Motor Accidents Compensation Act 1999 (NSW)), hence his claim was limited to economic loss, domestic assistance and out of pocket expenses. He claimed $781,619.09 at trial as referable to those heads of damage.

6 The primary judge found the appellant had suffered a soft tissue injury as a result of the accident, and that while he may suffer from "some psychotic condition", it was not caused by the accident. He awarded him damages of $5,296.30 representing one month lost wages and medical expenses which he found were reasonably referable to treatment for the minor injury caused by the accident: Lu v Heinrich (District Court (NSW), Finnane QC DCJ, 22 October 2012, unrep).

7 The appellant's essential submission is that the primary judge's reasons did not engage with the medical case presented at trial and that that evidence arguably supported his claim, such that a substantial miscarriage of justice warranting a retrial has occurred. The respondent accepted a retrial was the appropriate order if the appeal was successful.

8 For the reasons that follow, I am of the view that the appellant's submission should be accepted.

 

Background

The competing medical cases at trial

9 The parties tendered over 450 pages of medical evidence. Only one expert, the respondent's psychiatric expert, Dr Smith, was cross-examined.

The appellant's medical evidence

10 The following medical reports outline the critical aspects of the appellant's medical case at trial.

11 The appellant saw his general practitioner, Dr Dang, on the day of the accident complaining of pain at the back of his neck, chest pain, dizziness and nausea. The consultation took place in Vietnamese. Dr Dang prescribed pain medication and certified him unfit for work for four days. He diagnosed a soft tissue injury to the neck and chest. The appellant returned on 26 February 2003 still complaining of pain in the chest, sternum, of being dizzy and experiencing tightness in his chest and being short of breath. On 28 March the appellant returned again saying he had been working for a month and still had "lots of back pain", a "burning sensation in mid thoracic, lower lumbar region, sharp exacerbation" and pain in his right forearm over the previous 3-4 weeks. He ceased work on 31 March 2003 complaining of back and neck pain which he said had been exacerbated by the driving his employment entailed. He was off work altogether from April until June 2003: primary judgment (at [22]). He undertook his normal work performing deliveries for QLF Photographics from June 2003 and remained in that employment until April 2004.

12 On 17 May 2003 the appellant commenced consulting a different general practitioner, Dr Dat Le (whose practice was closer to his home), who prescribed Zoloft, an antidepressant medication. Dr Le also prescribed a strong pain medication. The strength of the Zoloft Dr Le prescribed was increased from 50 milligrams to 100 milligrams daily in mid July 2003. In August 2003 Dr Le noted that the appellant's pain was much improved with the higher strength dosage.

13 Mr Weatherby, a clinical psychologist, conducted a psychometric assessment of the appellant on 11 July 2003, apparently at the behest of QLF Photographics' workers compensation insurer. In his clinical record, dated 15 July 2003, which the appellant's counsel tendered, he commented that the appellant "demonstrates a degree of somatic concerns [which] suggest a ruminative preoccupation with physical functioning and health matters and severe impairment arising from somatic symptoms". Mr Weatherby concluded that the appellant "suffered a mild injury as a result of a motor vehicle accident" but that he was "exaggerating his symptoms for unknown reasons". He opined that "[m]any patients do not initially exaggerate their symptoms and genuinely suffer from physical and psychological disability ... [h]owever during the rehabilitation process certain factors may tempt the patient to engage in a process of embellishment." He suggested that further investigations as to the genuineness of the case be explored.

14 In the period April 2004 - June 2006 the appellant made frequent trips to Vietnam.

15 In April 2007 the appellant consulted a new general practitioner, Dr Lam, who referred him to Dr Tran for treatment of depression and anxiety. Dr Tran in turn referred him to the Fairfield Hospital Mental Health Unit where he came under the care of a psychiatric visiting medical officer, Dr Luong.

16 Dr Luong reviewed the appellant on 1 May 2007. He formed the opinion that he suffered from a major depressive disorder which was chronic, but was responding to Zoloft. At the time the appellant was also taking another medication, Zyprexa, an anti-psychotic or mood stabilising medication which Dr Lam had prescribed. By the time of his discharge from the Fairfield Hospital Mental Health Team in November 2008 he was recorded as taking Aropax, Somac, Zyprexa and Nocte (for sleep). The appellant remained under the care of Dr Luong up until the hearing.

17 Dr Thomas Oldtree Clark, a consultant forensic psychiatrist, assessed the appellant for medico legal purposes on 4 September 2007, 11 March 2009 and 11 May 2011. He obtained a brief history of the accident from the appellant. In his first report Dr Clark recorded it as involving the appellant's vehicle being "hit from the rear" by another car and him having been "shocked and traumatised by the incident". In that report, Dr Clark diagnosed the appellant as suffering "chronic pain associated with a trauma, a form of post-traumatic stress disorder ... associated with a chronic depression or Dysthymia".

18 In his 2009 report, Dr Clark reviewed a number of other medical reports as well as examining the appellant again. On this occasion, he recorded much the same version of the accident, but also that the appellant "suffered a loss of consciousness" and had to be "assisted from his car". At that stage Dr Clark expressed the opinion that the appellant had a severe depression which had evolved from a post-traumatic stress disorder. He said the appellant's symptoms satisfied the criteria under DSM-IV-TR for that condition. He assessed the appellant as suffering whole person impairment of 26% which was permanent. In his last report of 11 May 2011 Dr Clark reported on his most recent examination of the appellant as well as on his review of a number of medical reports and notes. He adhered to his previously expressed diagnosis of severe depression which had evolved from a post-traumatic stress disorder and said the appellant's prognosis was "poor". He again assessed the appellant pursuant to the Psychiatric Impairment Rating Scale applied in MAA and WorkCover cases as having a whole person impairment of 26%.

19 In 2008 the appellant was referred to Dr David Manohar at Liverpool Hospital, who diagnosed him as suffering from probable left sided C2/C3 facet joint pain and treated him by injections into that level of his neck.

20 Dr Peter Conrad assessed the appellant for medico legal purposes on 23 October 2006, 7 July 2011 and 24 May 2012. He concluded that the appellant had suffered a whiplash injury to his neck and an injury to his lumbar spine in the accident and that he was fit to do 15 hours per week of light duties including light cleaning work or delivery work.

21 Dr Ellis also examined the appellant for medico legal purposes. He recorded that the accident involved the appellant's car being hit from behind by another vehicle and that he suffered immediate neck, back and chest pain. On 13 December 2006 he expressed the opinion that the appellant had suffered musculoligamentous contusion and "aggravation, [sic, of?] degenerative changes in his neck and back", with secondary effects in both upper limbs, referred pain and neurological deficit as a result of the accident. He expressed the same opinion in reports in 2009 and 2011.

22 In March 2008 Dr Lewin, a Medical Assessment Service ("MAS") Assessor, assessed the appellant's psychological injuries and concluded that he had an adjustment disorder caused by the accident which gave rise to a whole person impairment of 7%.

The respondent's medical evidence

23 Like the appellant, the respondent tendered a number of medical reports from which the following extracts sufficiently state her case at trial for present purposes.

24 The appellant saw Dr John Bentivoglio, an orthopaedic surgeon, in May and July 2003, on a referral from QLF Photographics' workers compensation insurer. The appellant reported the accident to him as involving his vehicle being hit from behind, that he suffered a "whiplash", was "dazed" and felt pain in the neck and head. Having examined him and obtained an MRI scan, Dr Bentivoglio concluded in his first report that the appellant had "only sustained a musculoligamentous strain of his back in the motor vehicle accident, for which he needed conservative treatment". In his second report of 28 July 2003, he concluded the appellant appeared to have suffered a soft tissue injury and chronic musculoligamentous strain of the neck. He added that "the events as described are consistent with a soft tissue injury to the neck, which has developed into somatisation behaviour" and that as the accident occurred in the course of the appellant's employment, that employment was "a substantial contributing factor in the development of his present condition" (using the language of s 9A, Workers Compensation Act 1987 (NSW)).

25 In June 2003 Dr Robin Chase saw the appellant in his capacity as a WorkCover Injury Management Consultant. He recorded the accident as having been a "very low speed" one. He could find nothing wrong with the appellant "except for self-reported pain". He queried whether his "presentation represents cultural factors in pain perception or expression, other psychosocial factors that may be resulting in high level expression of pain, deliberate exaggeration of a minor injury or complete fabrication of his symptoms". He said, without further discussion that "a number of factors in his history taking suggest ... that the latter two are "the most likely 'diagnoses'". He certified the appellant fit for full work without restrictions and said he required no treatment of any kind.

26 Dr Matalani assessed the appellant for workers compensation purposes on 22 July 2003. He received a similar history of the accident to that recounted to Dr Bentivoglio. In his report of 28 July 2003 he expressed the opinion that the appellant appeared to have suffered a soft tissue injury and chronic musculoligamentous strain of the neck with subsequent pain developing in his low back. He did not doubt the appellant initially felt pain and discomfort in the neck having regard to the x-rays requested on the day of the accident. However he observed "his investigations do not seem to offer a rational explanation to his persisting symptoms". He concluded it appeared likely the appellant had "developed a pattern consistent with somatisation disorder", elements of anxiety and possibly a phobic disorder. He opined that, "[h]is somatisation behaviour is likely to be an attempt to express his distress".

27 Dr David Millons, a consultant surgeon who saw the appellant on 25 October 2011, recorded the appellant's complaints of a mildly stiff and irritable neck and back, but could find no evidence of anything untoward in either area. He observed that the appellant's problems were "quite subjective" and that one was "reliant on his statement as to his level of incapacity".

28 Dr Brian Noll, an orthopaedic surgeon who examined the appellant on 15 December 2011 said "[a]lthough Mr Lu complains of ongoing widespread symptoms, which he attributes to the subject accident, there was no objective clinical evidence of any specific disorder noted on examination".

29 Dr Gibson, who assessed the appellant's physical injuries for the MAS on 20 March 2008, found the accident caused musculoligamentous strains to the appellant's neck and lumbar spine which had stabilised and given rise to a permanent impairment, albeit resulting in 0% whole person impairment.

30 Professor James Lance, a neurologist and MAS assessor, expressed the opinion in January 2012 that the appellant "suffered a relatively minor whiplash injury" in the collision, that "[a]ll symptoms were embellished" and that he had "no sign of organic disability in his neck or back on clinical examination or imaging". He added that the appellant's "history and signs of a functional disorder ... suggest a Chronic Pain Syndrome on the basis of anxiety and depression with some paranoid ideation that will be assessed by a psychiatrist".

31 The respondent qualified Dr Sydney Smith, a psychiatrist, who examined the appellant on 27 September 2011. He was the only medical practitioner who gave evidence at the trial. In his first report (4 October 2011), the only one prepared after an examination of the appellant, Dr Smith noted that the appellant was "not a very reliable historian", an observation Dr Smith surmised might in part be due to the appellant's "accounts to various doctors having to be interpreted". Dr Smith expressed the opinion that if the appellant's history of his mental state following the accident was accepted, he suffered an adjustment disorder with depression and irritability which was compounded by alcohol abuse. He also raised the possibility of a schizophrenic illness.

32 Dr Smith's second report dated 10 February 2012 was a commentary on various documents including records from Dr Dang, Dr Bentivoglio and Dr Luong from which he concluded:

"It is not possible with the information so far provided to determine whether he is feigning mental illness or is suffering a psychiatric disorder and if so of what sort. However, he does seem to have responded best to a combination of anti-depressant and anti-psychotic medication, suggesting that there is a psychotic element to his illness. This could be either of a schizophrenic kind or a psychotic depressive kind. If he does have a psychosis this cannot be related to the accident ... ." (Emphasis added)

33 He noted that the appellant continued to:

" ... complain of pain in most areas of his body, but no pathology has been found that could account for his claims. Given that his complaints of thoracic and lumbar pains in all four limbs were first made weeks after the accident, it is difficult to associate them with any effect of the accident. Rather it would seem that he has fabricated disorder on either a subconscious (and so hysterical) or a conscious (and so malingering basis)."

34 In cross-examination Dr Smith adhered to his original opinion that, if the history of the appellant's condition since the accident was accepted, the appellant suffered from an adjustment disorder with depression and irritability, possibly compounded by alcohol abuse. He accepted that trauma could produce a depression involving low mood, irritability and difficulty in sleeping. He agreed that a number of the symptoms the appellant had reported to Dr Luong on 1 May 2007 were "classic symptoms of depression". He also accepted that a psychotic episode could be brought about by severe stress, but said that would not alter "the natural history of the disorder".

35 Dr Smith agreed with counsel for the appellant that the most likely scenario was that the appellant had "two psychiatric conditions, one being an adjustment disorder [which was Dr Smith's suggestion] or a major depressive disorder which Dr Luong and others [had] ...diagnosed [and] another disorder [with] some psychotic features". He accepted that after 9 or 10 years (since the accident) the prognosis for the appellant would have to be guarded. He expressed the opinion that there were a combination of psychiatric conditions which, in his view, could apply to the appellant: a major depressive disorder, possibly an adjustment disorder, possibly a somatoform disorder (meaning a subconscious fabrication of symptoms) and some aspects of his psychiatric condition may involve psychosis.

Primary judgment

36 The primary judge rejected the appellant's contentions both as to the extent of his physical injuries and, as to any causal connection between the accident and any psychiatric condition from which he might be suffering. He took into account that the appellant gave evidence through an interpreter, but concluded (at [34]) that his case, "does not make any sense".

37 The primary judge set out the appellant's background as follows. The appellant was born in Vietnam in 1960. He left school when he was about 15 or 16 years old. He came to Australia as a refugee. In Australia he worked in a variety of occupations, including in a carpet factory, lighting warehouse, steel company, a company that sold bathroom equipment and on farms. He also conducted a fashion business with his wife (from whom he had separated by the time of trial) and her mother: primary judgment (at [18]). In 1997 he returned to Vietnam for two years.

38 At the time of the accident the appellant was employed by QFL Photographics in a job which "involved him putting photographs in a suitcase, driving from his place of employment to Sydenham railway station, then catching a train to the city and walking around delivering the photographs: primary judgment (at [20]). The primary judge described this work (at [29]) as "essentially very light".

39 The nature of the accident was disputed. The competing versions which the primary judge (at [11]) described as "remarkably different" were set out in the primary judgment as follows:

"[9] ... The [appellant] claimed that when his vehicle was struck it flew to the front, he hit his brakes and his head went forwards and backwards. According to him, he lost consciousness and he could not stand up and could not get out of the car. He rang his boss who came and got the names of the people involved in the accident. The plaintiff claimed that he then drove his car forward but still could not get out of it because of pain in his head and because he could not stand up.

[10] The [respondent], an elderly lady, gave evidence that she was driving behind the plaintiff, intending to go left and 'smashed into' his car, actually hitting his bumper bar with a minor impact. She got out of her car. He got out of his car, speaking into a mobile phone that he was holding to his ear. She suggested that he should move around the corner. He then got back into his car and moved round the corner. She also moved her vehicle around the corner and she then exchanged with the plaintiff relevant details. He was still talking on his mobile phone to his boss. He made no complaint to her about soreness or any injury. To her observation he was moving freely without apparent discomfort (Transcript page 84 lines 48-49). All she could see was a small dent on his bumper bar."

40 It is convenient to note at this point that while the primary judge's account of the respondent's oral evidence was substantially accurate, his Honour did not refer to a statement she had given in July 2003 (presumably to her third party insurer) in which she recorded that after the appellant left his car, "he told me straight away that his neck hurt". For reasons that were unexplained, the statement was not disclosed to the appellant's legal representatives until after the respondent's evidence had concluded. Following disclosure of the existence of the statement, the respondent's counsel (who did not appear on the appeal) tendered the document, which was admitted into evidence without objection. The primary judge then made the following observation:

"So he [the appellant] told Ms Heinrich right at the outset that his neck hurt."

The respondent's counsel agreed with his Honour's observation.

41 The primary judge concluded (at [13]) that he could not accept the appellant's version of the accident and that the respondent's evidence appeared to be the more probable version of what occurred. He found (at [15]) that after a quite minor accident, the appellant left his car as the respondent said. He said his doubts as to the appellant's description of the accident made him "consider carefully the reliability of other evidence that he gave [which he] ... concluded ... was not reliable": primary judgment (at [16]).

42 While the appellant does not challenge his Honour's description of the accident as "quite minor", his case on appeal turns in part on the proposition that his Honour's rejection of the appellant's evidence concerning the circumstances of the accident (which was among the reasons leading to his Honour rejecting the appellant as a credible witness), especially his failure to refer to the concession to which I have referred, adversely influenced his Honour's assessment of his subsequent complaints.

43 After dealing with the circumstances of the accident, the primary judge turned to its consequences.

44 The primary judge referred to Dr Bentivoglio's reports (at [22] - [26]). He observed (at [22]) that at the time of the first consultation, the appellant claimed "he could not walk ... sit ... stand [or] lie down", but that none of these complaints appeared in Dr Bentivoglio's report of that consultation. His Honour concluded (at [27]) that Dr Bentivoglio's reports were inconsistent with the appellant's claims of the extent of his disability at the time he saw him, but were "consistent with [the appellant] having suffered minor soft tissue injuries to his neck and upper back"

45 After he ceased employment with QLF Photographics, as I have said, the appellant travelled to Vietnam on a number of occasions. While there he frequently travelled on motorbikes. The first trip started in May 2004 and lasted a year. While on that trip, he was involved in a motorbike accident on 16 January 2005 that resulted in the rupture of his spleen requiring surgery. The primary judge observed that he "claimed to have no other consequences from this apparently major operation": primary judgment (at [31]). His Honour contrasted (at [31] - [32]) the appellant's complaints about his injuries in the "slightest of collisions between two motor vehicles" (referring to the February 2003 accident) with the absence of complaint about the sequelae of the accident in Vietnam. His Honour clearly formed an adverse view of the appellant because of what he perceived to be his inconsistent responses to the two accidents. The appellant made at least four more trips to Vietnam over the next few years until November 2009, lasting for periods ranging from a few months to a year: primary judgment (at [30]).

46 Next, the primary judge referred (at [33]) to the antidepressant and antipsychotic medication prescribed for the appellant and to Mr Weatherby's workplace assessment which, his Honour opined, "correctly enough ... concluded ... that the plaintiff was exaggerating his symptoms and his case needed investigation to determine if it was genuine."

47 The primary judge concluded (at [34]) that there was "no support medically for [the appellant] suffering any treatable physical condition that is causally related to this minor accident other than ... soft tissue injury ...".

48 The primary judge then turned to the appellant's psychiatric case. His Honour rejected (at [35]) Dr Clark's opinion that the appellant "was suffering from post-traumatic stress brought on by this accident and that his loss of function was of the order of 21% [whole person impairment]" as well as depression. His Honour did not accept Dr Clark's opinion because it was based on the version of the accident he had rejected and, on other matters of history which his Honour regarded as untruthful. Thus, whereas Dr Clark "regarded [the appellant] as being hard-working", in his Honour's view there were unexplained gaps in his work history and it was "not at all clear what his sources of income were during the other periods he was in Vietnam, nor during the periods before the accident". In addition, Dr Clark's opinion about the appellant's depression was based upon what the appellant "told him and his assumption that the [appellant] is as disabled as he claims to be".

49 The primary judge next referred (at [36]) to video evidence showing the appellant driving a car "without apparent difficulty", commenting that it was "interesting because of his claim that he found it very difficult to drive a motorcar". The video also showed the appellant performing activities in a way that, in his Honour's opinion, contradicted his evidence and showed a "person who has no obvious disability ... [or] pain". His Honour disagreed (at [36]) with the view expressed by Dr Ellis that the video was not inconsistent with the appellant's claim.

50 In relation to the appellant's purported inability to do work, his Honour concluded:

"[37] There is no basis to conclude based on any other medical evidence that [the appellant] is unable to work either now or any time in the past after a period of say one month from the accident. The work that he was required to do was light and, having regard to the opinions of Dr Bentivoglio, well within his capacity. He has given no convincing reason for not taking up work again."

51 In relation to the appellant's psychiatric claim, the primary judge found:

"[38] There is also no evidence of a satisfactory nature that links any psychiatric complaint the appellant might have to the accident. I'm not convinced that he suffers from any psychiatric condition at all, but if he does, it is unrelated to the accident. Dr Smith [a Consultant Psychiatrist] gave evidence that I accept that he may well suffer from some psychotic condition, but such a condition would not be caused by this accident. He is not entitled to damages because he suffers from any form of psychosis, since it was not caused in any way by the accident."

52 His Honour concluded:

"[39] He claims not to have been able to work at any time when he was in Australia after about June 2003. It is impossible to accept that someone who could travel around on a motorbike day after day in Vietnam, and who was also involved in an accident resulting in surgery to a ruptured spleen, as well as endure the approximately 9 hours of sitting whilst flying on an aeroplane to get there; could not do a simple job as a courier whilst he was in Sydney. He also claimed that he still did kung fu training. I cannot understand how he could do this if he were as disabled as he says he was. I am unable to accept the plaintiff as a credible witness. He is entitled to damages for a small period only and thereafter he is entitled to nothing"

53 In setting out his finding on damages, the primary judge noted (at [41]) that the appellant claimed only economic loss "since the assessment of his injuries before trial by the appropriate medical assessors were that he had a nought percent [whole person impairment] loss" and, accordingly was not entitled to damages for non-economic loss.

54 In respect of the damages, his Honour concluded (at [42]) that the appellant's claim for income loss was "grossly exaggerated", having found that:

"[42] The medical evidence ... establishes, in my opinion, that the plaintiff suffered a soft tissue injury as a result of the collision and that caused him some pain and discomfort for perhaps two months and in that two-month period he suffered a loss of income which amounted, in my opinion, to no more than one month's wages. Thereafter he suffered no income loss at all referable to this accident."

55 The primary judge rejected ([at 44]) the appellant's "complaints of pain over the entirety of his body". He concluded that damages for medical expenses were limited to those expenses that were reasonably referable to his treatment for a soft tissue injury and did not encompass, inter alia, treatment by psychiatrists: primary judgment ([at 44]). The appellant was not entitled to damages for loss of superannuation (at [45]) because his "loss of employment was a voluntary act on his part and not connected with this minor accident". His Honour also rejected (at [46]) the appellant's claim for damages for domestic assistance and future medical expenses on the basis that any such care the appellant had received or future need was unrelated to the accident.

56 The judgment sum of $5,296.30 the appellant was awarded was made up of $1,605.16 for wage loss for four weeks after the accident and $3,691.14 for out-of-pocket expenses. The primary judge made no order as to the costs of the trial, but did order the appellant to pay the respondent's cost of proceedings of a notice of motion to extend time dated 14 February 2011.

Issues on appeal

57 The appellant did not press all grounds of appeal. He relies on the following grounds (using the numbering in the notice of appeal):

(1) The trial judge erred in finding that the appellant made no complaint of physical injury to the defendant following the accident.

(2) The trial judge erred in rejecting the appellant's evidence as to his physical injuries.

(3) The trial judge erred in finding that the appellant did not suffer a psychiatric injury which was causally related to the subject motor accident.

(4) ...

(5) The trial judge failed to consider whether or not the subject motor accident contributed to the appellant's psychiatric condition.

(6) ...

(7) The trial judge failed to give sufficient reasons for rejecting the appellant's claim for economic loss.

(8) The trial judge failed to give sufficient reasons for rejecting the appellant's claim for domestic assistance.

(9) The trial judge erred in failing to give sufficient reasons for rejecting the appellant's claim for out-of-pocket expenses for his psychiatric injury or treatment for pain.

58 The appellant's grounds 7, 8 and 9 are contingent on grounds 1 to 5 being made out.

59 In the event the appeal is allowed, the appellant seeks an order that the matter be remitted to the District Court for a retrial. The respondent accepts this is the appropriate order if the appeal is successful.

Appellant's Submissions

60 The crux of the appellant's challenge to the primary judgment is that the primary judge erred in concluding that the appellant's physical injuries were minor and that no psychiatric injury was caused by the accident. The appellant essentially submits that the primary judge did not have any, or any sufficient, regard to the medical evidence that supported his case.

61 The respondent conceded the first ground of appeal having regard to her July 2003 statement. Mr R Sheldon of Senior Counsel, who appeared on appeal for the appellant but not at trial with Ms E Welsh, submitted that the primary judge's erroneous statement that the appellant made no complaint to the respondent about soreness or injury influenced his conclusion that the appellant's version of the accident was inconsistent with the respondent. It was apparent, too, that it had a material effect on the balance of his Honour's reasons, on the basis that his Honour's rejection of the appellant's account of the accident led to him reviewing the balance of his evidence through a prism that he was an unreliable witness: see primary judgment (at [16]).

62 Mr Sheldon also argued that the respondent's account of the appellant's immediate complaint of pain was corroborated by Dr Dang's clinical notes (see [11]) which recorded a consistent complaint of pain by the appellant within two hours of the accident. He observed that the notes queried whether the appellant had lost consciousness and suggested his complaints of dizziness and nausea would be consistent with that having occurred or, at least, with being dazed. He complained that his Honour ought to have taken those notes into consideration.

63 As to ground 2, Mr Sheldon submitted that a finding that the appellant suffered an injury to his neck did not depend only upon his evidence. Even if it was accepted that there was an element of exaggeration in his evidence and the history he recounted to doctors, Mr Sheldon pointed to the fact that the appellant continued to receive treatment for pain in his neck from his treating general practitioners for some time after the accident as tending to support his complaints of pain.

64 Mr Sheldon also pointed out that on 11 January 2012 Professor Lance, certified that the appellant "had suffered an aggravation of degenerative change in his neck with internal disc disruption in his cervical spine "and other conditions in that area, as well as musculoligamentous contusion in his back and aggravation of degenerative change in his back as a result of the accident. He accepted that the history Professor Lance recorded concerning the circumstances of his accident was wrong, but complained that the primary judge had not referred to any of Professor Lance's opinions, even his opinion that the appellant suffered a relatively minor whiplash injury in the accident.

65 As to the appellant's psychiatric condition (grounds 3 and 5), Mr Sheldon submitted that the primary judge's failure to refer to objective medical evidence that supported his case that he was suffering from a psychiatric injury exposed an absence of adequate reasoning and to error in the process of fact finding in relation to the finding concerning psychiatric injury. He complained that his Honour could not reach a proper conclusion on this issue without properly considering Dr Lewin's assessment that the appellant suffered a 7% whole person impairment on psychiatric grounds caused by the accident, Dr Clark's alternative diagnosis (his Honour having rejected Dr Clark's diagnosis of post-traumatic stress disorder) of adjustment disorder and a major depressive illness, Dr Smith's alternative diagnosis of adjustment disorder, depressive disorder and major depressive disorder or Dr Luong's records and the latter's diagnosis of a chronic major depressive disorder.

66 Further, Mr Sheldon submitted that the primary judge referred at the outset of his reasons to the fact that each MAS assessor who examined him considered his total percentage of whole person impairment was 0%. In fact the appellant's counsel had drawn his Honour's attention to Dr Lewin's conclusion (see [22]) above that the appellant had an adjustment disorder caused by the accident which gave rise to a whole person impairment of 7%. Mr Sheldon argued that that oversight was repeated in his Honour's reasons (at [41]) as apparently material to his decision that the appellant did not suffer a psychiatric condition causally related to the accident. He contended that that assessment was consistent with other diagnoses of the appellant's psychiatric condition.

67 Accordingly, Mr Sheldon submitted that his Honour's failure to consider these materials materially affected his conclusion that if the appellant was suffering from a psychiatric condition, it was not causally related to the accident. He also contended the primary judge was in error in failing to take into account the effect of the appellant's psychiatric condition on his demeanour and presentation in the witness box.

68 Secondly, Mr Sheldon submitted that the appellant had an arguable case that he had suffered a psychiatric condition as a consequence of the accident. He contended that the appellant established he was receiving treatment for a psychiatric condition shortly after the accident as could be seen from the fact he was prescribed Zoloft. He pointed out that the appellant remained under the care of Dr Luong until the hearing. Dr Smith accepted that Dr Luong's diagnosis the appellant was suffering from a major depressive disorder was available. He argued that Dr Smith's evidence arguably supported the appellant's case and ought to have been considered by the primary judge.

69 Mr Sheldon argued that Mr Weatherby's assessment was also evidence that the appellant was having not insignificant psychological problems early in the piece that identified somatic concerns suggesting ruminative preoccupation with physical functioning and health matters. He contended that Mr Weatherby's report could explain the appellant's obsession with his symptoms and that the primary judge's failure to take it into account meant his Honour had not considered a material part of the appellant's case. He pointed out that other medical experts pointed to somatisation issues as affecting, or possibly influencing the appellant's diagnosis and acceptance of his complaints as genuine.

70 Thirdly, Mr Sheldon pointed to the fact that Dr Luong recorded that the appellant was responding to a combination of antidepressant and antipsychotic medication as indicating the appellant's symptoms were genuine and were relieved by appropriate treatment.

71 Finally, Mr Sheldon embraced Sackville AJA's suggestion that if his submissions were accepted, there was a good deal of evidence that the appellant was suffering from a psychiatric condition, that there was evidence from Dr Luong at least that that was attributable to the accident and that Dr Smith's evidence did not negate that and that in the light of that evidence, it was incumbent on the primary judge to explain why causation was not established.

Respondent's Submissions

72 Mr K P Rewell of Senior Counsel who appeared for the respondent on appeal, but not at trial, first submitted that the "formidable medical case" the respondent advanced at trial supported the primary judge's conclusions concerning the appellant's claims of physical and psychiatric injuries.

73 Secondly, insofar as the appellant's allegations of physical injuries were concerned, Mr Rewell noted that the appellant did not challenge the primary judge's finding about the severity of the accident. He contended that the appellant's resumption of normal work for QLF Photographics throughout the second half of 2003 and early part of 2004 was inconsistent with his complaints of severe physical pain.

74 Thirdly, Mr Rewell argued that no medical expert identified objective evidence of physical disability or went beyond a diagnosis of soft tissue injury to his neck and back "based on [his] self-reported symptoms". He referred to Dr Chase's opinion (see [25]) above and the fact that he had certified the appellant fit for work without restrictions. He submitted that the primary judge clearly accepted Dr Chase's opinion. He also contended that the primary judge was entitled to prefer Dr Millons' and Dr Noll's evidence (see [27] and [28]) above to the effect that there was no objective basis for the appellant's physical complaints.

75 Fourthly, insofar as Dr Lewin's opinion was concerned (see [22]) above, Mr Rewell submitted that the primary judge had not accepted the psychological symptoms to which he referred, of which there was "no objective or acceptable corroborative evidence." Similar submissions were made about Dr Clark's diagnosis of "severe/major depression" (see [17] - [18]) above. Mr Rewell argued that Dr Lewin's psychological/psychiatric assessment of 18 March 2008 diagnosing the appellant as suffering from an adjustment disorder and assessing a 7% whole person impairment also depended on him accepting the appellant's complaints as to his alleged physical disabilities at face value. He submitted Dr Lewin's opinion carried no weight having regard to the primary judge's finding that the appellant's physical symptoms were exaggerated or fabricated and there was no ongoing pattern of genuine pain. In those circumstances, Dr Lewin's opinion was not relevant and the primary judge's failure to deal with it was of no consequence in terms of the outcome.

76 Fifthly, Mr Rewell accepted that the primary judge dealt briefly with the appellant's psychiatric case. However he submitted that, as the appellant's counsel accepted at trial, psychiatric cases depend almost entirely on whether the person concerned is telling the truth. He argued that his Honour was entitled to deal with the appellant's case succinctly. He contended that the appellant's false description of the severity of the accident, the exaggeration, if not fabrication, of physical symptoms over a lengthy period, the playing-down of the motorcycle accident in Vietnam, the plethora of alleged emotional symptoms, the introduction, years after the subject accident, of alleged psychotic symptoms, and the florid manner in which the appellant gave his evidence supported the primary judge's conclusion that he was not telling the truth in relation to his physical or psychiatric symptoms. Once that position was reached, the primary judge's conclusions were open to him.

77 Sixthly, Mr Rewell argued that Dr Luong and Dr Lewin's opinions (see [16] and [22]) above did not assist the appellant as, again, their diagnoses depended on their acceptance of the truthfulness of his complaints and his self-reported psychological symptoms, which could not be objectively verified. He submitted the primary judge was entitled to conclude the appellant had been consciously fabricating his symptoms for many years.

78 Seventhly, Mr Rewell submitted that Dr Smith adhered to his opinion that if the appellant had a genuine psychiatric condition, it was a major depressive disorder with psychotic elements which could not be caused by the accident.

Consideration

79 There was no issue as to the fundamental principles governing the primary judge's discharge of the judicial obligation to give reasons. While an appellate court should not prescribe an optimal template, nevertheless there are minimum standards with which judicial reasons should conform to constitute a proper exercise of judicial power: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (at [48]) per Basten JA (Beazley JA and Macfarlan JA agreeing). In considering whether a trial judge has discharged that obligation, his or her reasons are to be understood as recording the steps that were in fact taken by the trial judge in arriving at the end result: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]) per Hayne J.

80 The relevant authorities were considered recently in Keith v Gal [2013] NSWCA 339; Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460. Both judgments referred with approval (respectively at [112] and [43]) to the succinct synthesis of authorities in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 (at [116]) per Campbell JA (Allsop P and McColl JA agreeing) as follows:

"16 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 - 444 (Meagher JA); Whalan v Kogarah Municipal Council at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]."

81 As will be apparent, the primary judge's view of the appellant's credibility was influential in his rejection of his claims. The respondent did not suggest that finding made his Honour's reasons immune from appellate scrutiny: see CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 (at [19]) per Kirby J (Gleeson CJ agreeing); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306.

82 However the rejection of the appellant's account of the accident, critically, in my view, his assertion that he suffered pain immediately as his Honour acknowledged affected his assessment of the appellant's evidence. Insofar as his physical condition was concerned, there was evidence from both Dr Conrad and Dr Lance that the appellant continued to suffer from a whiplash injury attributable to the accident. The primary judge did not refer to that evidence.

83 As to the appellant's psychiatric case, the appellant's counsel at trial accepted that he gave his evidence in a florid manner, but asked his Honour to consider the manner and content of his evidence through the prism of his psychiatric condition: see Mason v Demasi [2009] NSWCA 227 (at [4]) per Basten JA. It is not apparent, with respect, that his Honour approached his evaluation of the appellant's case on this basis. This was particularly important when there was an issue which the appellant's counsel also identified as whether he had been consciously fabricating his evidence over a number of years and, if he had done so, but unconsciously, was suffering from a compensable conversion disorder.

84 A conversion disorder is "a disorder ... 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": PT v Shorey [2001] NSWCA 127 (at [72]) per Davies AJA. The appellant's case, as I understood it was put to the primary judge, was that if he had such a disorder, it was caused by the stress of the accident.

85 His Honour dealt briefly with the psychiatric case. He rejected Dr Clark's opinion because it was based on a version of the accident he had rejected. It is not precisely clear to what his Honour was referring in this respect. I have set out the version of the accident Dr Clark recorded (see [17] above). It does not resemble the account his Honour recounted (at [9]) and rejected (at [13]). Indeed, it is apparent from the medical reports that the appellant's account of the accident became more extreme with the passage of time.

86 Further, as the appellant's counsel at trial submitted, there was support in the medical reports tendered by both parties for the proposition that the appellant was suffering from a somatic psychiatric condition caused by his reaction to physical pain he suffered after the accident. That raised the issue that, even if the appellant's complaints appeared embellished, it was not as a product of conscious fabrication. Dr Weatherby, Dr Bentivoglio and Dr Matalani each raised that possibility in July 2003 as did Dr Smith in his second report. Dr Smith also considered it was possibile that the appellant was suffering from a somatoform disorder caused by the accident. The primary judge did not consider that issue.

87 Having rejected Dr Clark's opinion the primary judge did not consider any of the considerable body of psychiatric evidence marshalled by both parties. His Honour said (at [38]) that he was not convinced that the appellant suffered from "any psychiatric condition at all". However, he accepted Dr Smith's evidence that the appellant "may well suffer from some psychotic condition", but found that "such a condition would not be caused by this accident". His Honour did not evaluate Dr Smith's evidence in the light of Dr Smith's acceptance of the other psychiatric experts' opinions as being open. He did not explain why he apparently rejected the other psychiatric experts' opinions on the causation issue. His Honour's bald conclusion (at [38]) did not disclose adequate reasons in this respect: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]) per Ipp JA. It is apparent that the "process of fact finding miscarried": Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [66]).

88 The medical reports could be read in the manner for which Mr Sheldon contended, or, rather, as expressing the opinion that the appellant was, in fact, a malingerer. There was support for the appellant's case as a genuine psychiatric condition caused by the accident if his history was accepted. Regrettably the primary judge's conclusion that the history could not be accepted appears to have stemmed in part from his rejection of the appellant's account of the accident. That in turn was a result of his Honour's erroneous acceptance of the respondent's oral evidence that the appellant did not complain of pain at the scene.

89 In my view the appellant has established that the primary judge has failed to give adequate reasons and that the process of fact-finding has miscarried. The appellant had an arguable case of both physical and psychiatric conditions caused by the accident which was not adequately considered. In my view, there has been a substantial wrong or miscarriage prima facie requiring a new trial: Uniform Civil Procedure Rules 2005 (NSW) 51.53. A retrial is necessary as it is not open to this court to decide the factual questions for itself, there being credit issues involved: Pollard v RRR Corporation Pty Ltd (at [67]).

90 I would add the following observation. As will be apparent the appellant's medical history is complex. With the exception of Dr Smith, no medical practitioner or other relevant expert was called. As Hoeben CJ at CL has said, in such cases the mere tender of medical reports and medical records is unsatisfactory: P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 (at [104]). The parties should consider whether it is necessary to call experts whose competing opinions they ask the trial judge to consider. Even if that does not occur, the trial judge should not be left in the position where, although counsel at trial outline broadly the competing contentions, he or she must read numerous medical reports without the assistance of detailed submissions addressing how the conflicts in the experts' opinions are to be resolved.

 

Orders

91 There having been no challenge to the primary judge's conclusion on contributory negligence, the new trial should be limited to damages.

92 I propose the following orders:

(1) Appeal allowed.

(2) Set aside the orders made in the District Court on 12 November 2012.

(3) Remit the matter to the District Court for a new trial limited to damages.

(4) Cost of the first trial to be in the discretion of the judge presiding at the second trial.

(5) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

93 BASTEN JA: The appellant, Mau Quoc Lu, suffered injury when his motor vehicle was stationary at an intersection and was clipped from behind by a vehicle driven by the respondent, Ms Moya Heinrich. Liability was not in issue, nor was there any reduction on account of contributory negligence. The sole issue was the seriousness of the appellant's injuries. The trial judge, Finnane DCJ, was not satisfied that he had established on the balance of probabilities that the injuries resulting from the accident required more by way of damages than an allowance for one month of economic loss and certain out of pocket expenses.

94 The trial judge was faced with a number of difficulties in assessing the scope of any relevant injury. First, there were the usual difficulties arising from a trial run on the basis of conflicting medical reports with only one expert, a psychiatrist instructed by the respondent, being required for cross-examination. However, if the matter turned on the proper assessment of the medical evidence, any deficiency in the approach of the trial judge could be remedied by this Court undertaking its own analysis, the appeal being by way of rehearing. That was only part of the problem faced below and in this Court.

95 Secondly, the judge was faced with a plaintiff who undoubtedly gave his evidence, in the words of his counsel on appeal, "in a florid fashion." The problem for the trial judge was to differentiate between the justifiable complaints and exaggerated claims. An example will illustrate the difficulty. In May 2003, some three months after the accident, the appellant saw Dr John Bentivoglio, with respect to a "problem" with his lower back. He was asked to describe it and said, at Tcpt, 13/08/12, p 21(47):

"I couldn't walk, I couldn't sit, I couldn't stand and I couldn't lie down either."

96 On one view, such evidence was a problem for the plaintiff's case: if the trial judge could not be satisfied on the balance of probabilities as to the extent of his injuries, he failed to establish those injuries. On the other hand, florid expression and exaggeration can be a function of a person's psychological state. That possibility requires consideration: Mason v Demasi [2009] NSWCA 227 at [4]. A person suffering from a psychological condition is not to be deprived of his or her legal entitlements because of that condition, particularly in cases where the psychological condition may be the product of the tortious conduct. On the other hand, the plaintiff's psychological state may be such as to require a court to place particular weight on professional assessments and, where available, objective records. While it is true that the existence of a psychological condition may well depend on verbal communications by the patient to his or her psychiatrist, it is also true that psychiatrists have training in assessing the plausibility of statements made to them by reference to their professional expertise in identifying and classifying forms of mental illness.

97 Thirdly, the appellant's case was complicated by his departure for Vietnam on 21 May 2004 (some 15 months after the accident) and, with the exception of a brief period in 2005, remaining in Vietnam until mid-2006. Whilst in Vietnam during the second period he was injured in a separate motor accident and suffered a ruptured spleen. Although the appellant ascribed no part of his current condition to the relatively serious accident suffered in Vietnam, but only to the relatively less serious accident suffered in 2003, the trial judge was bereft of any medical assessment of the later accident and its possible consequences.

Grounds of appeal

98 The grounds relied upon at the hearing of the appeal have been set out by McColl JA at [57] above. They fell into three categories. The first ground alleged an error with respect to a specific fact, namely whether the appellant complained of physical injury immediately following the accident.

99 The second set of grounds related to the failure of the trial judge to make findings favourable to the appellant with respect to both physical and psychological injuries. These findings were largely dependent upon the rejection by the trial judge of the appellant's evidence as to his levels of pain in the period up to May 2004 when he left for Vietnam.

100 The third category of grounds alleged inadequate reasons for rejecting specific heads of damages, namely economic loss, domestic assistance and expenses of treatment for psychiatric injury and pain. However, the absence of detailed reasons in these respects was explained by the earlier findings that the 2003 accident had limited physical and psychiatric consequences.

101 Each set of grounds can conveniently be dealt with as a group.

(a) absent finding as to immediate complaint

102 According to the respondent, having collided with the rear bumper bar of the appellant's car, both she and he got out of their respective cars and then got back in, in order to drive around the corner where they could conveniently exchange details. She said in her evidence, and the judge accepted, that the appellant "made no complaint to her about soreness or any injury": at [10]. Whilst that was, indeed, her oral evidence, there was a document produced later at the trial which appeared to be a handwritten statement signed by the respondent which contained the following passage:

"After waiting for Mr Lu to leave his car and come to see me, I approached him as he left his car whilst still talking on his mobile phone. When he finished talking he told me straightaway that his neck hurt."

103 The appellant's case was that the trial judge appeared to have forgotten about the handwritten note which was tendered later in the trial and had focused entirely upon Ms Heinrich's oral evidence.

104 The error may be accepted; the consequences are less clear. There was no issue that the appellant suffered a degree of injury in the accident. What was in dispute was the seriousness of the injury and the period over which it continued. The statement noted above did not assist in resolving those issues.

105 On the other hand, the statement confirmed Ms Heinrich's oral evidence that after the collision the appellant got out of his car to speak to her. By contrast, Mr Lu's account, given through an interpreter, was as follows, at Tcpt, 13/08/12, pp 17-18:

"A. And then I was hit in the back and my car flew out in front. And I hit the brakes, and my back and head hit back like that and I don't know anything after that.

...

Q. How big was the impact when the car hit?

A. I really - I don't know. I didn't know anything at that point, when I came round about five or six minutes after that, when I tried to get out of the car I couldn't get out.

Q. Why not?

A. I couldn't get out. I couldn't walk out of the car.

Q. Now were you able to get yourself out of the car eventually?

A. No.

Q. How did you get out of the car?

A. I rang the boss and then after a few minutes I drove to the - the boss came and took names of people and so forth, and boss said to me, try to drive the last few hundred metres to the office, or company.

Q. And did you do that?

A. Yeah I did. Actually I went to, I got to the company and I wanted to get out and I still couldn't get out.

Q. Why not?

A. I don't know why not. I had a pain in the head and I just couldn't stand out. I couldn't stand up.

Q. But you did eventually get out of the car?

A. Yeah, eventually.

Q. Did you see the - ?

A. But I was in a lot of pain.

Q. Did you see a doctor that day?

A. ... Yes, the boss took me to ... straight to the doctor."

106 In cross-examination, he denied that he got out of the car at all at the scene of the accident: Tcpt, p 52. In this respect, Ms Heinrich's evidence was corroborated by her signed handwritten statement which was apparently prepared in July 2003, within six months of the accident. It tended to contradict the appellant's evidence as to the seriousness of the collision and the immediate effects upon him. Thus, the first ground of appeal was made out, but it had no consequence for the issues in dispute.

(b) rejection of appellant's evidence as to physical injuries

107 So far as the physical injuries suffered in the accident were concerned, the trial judge set out the medical evidence relevant to the period from the date of the accident (21 February 2003) until late June 2003. Immediately following the accident, Mr Lu was taken to see a general practitioner, Dr Dang, in Marrickville. In May 2003 Dr Dang referred him to an orthopaedic surgeon, Dr Bentivoglio, who prepared a report following a consultation on 12 May 2003, at which time he had available X-rays of his cervical spine and a CT scan of his lumbar spine, described as "unremarkable". Dr Bentivoglio recommended an MRI scan of his cervical and lumbar regions. Dr Bentivoglio's reports of 15 May and 1 August 2003 are set out by McColl JA. They were also reviewed, with significant conclusions extracted, by the trial judge at [22]-[26]. The judge expressed the view that those reports were "inconsistent with the plaintiff's claims of the extent of the disability at the time he went to see this surgeon": at [27]. He concluded that the reports were consistent with the plaintiff "having suffered minor soft tissue injuries to his neck and upper back."

108 The trial judge then turned to the claims made by Mr Lu with respect to his injuries. The judge concluded at [34]:

"There is no support medically for his suffering any treatable physical condition that is causally related to this minor accident, other than the soft tissue injury to which I have already referred."

109 The trial judge did not deal with the medical report of Professor James Lance, who assessed whether the appellant suffered a whole person impairment as a result of injury to his back and neck. Dr Lance's conclusions as to the degree of permanent impairment were as follows:

"Mr Lu has no sign of organic disability in his neck or back on clinical examination or imaging. There is no impairment of reflexes to indicate radicular involvement.

There is nothing in the history or examination to implicate the vestibular system. No vestibular function tests have been carried out.

For these reasons Mr Lu's WPI is 0%."

110 In the summary in the written submissions of the appellant's medical case at trial, no reference was made to Dr Lance. In complaining as to the error in rejecting the appellant's own evidence as to his physical injuries, the written submissions stated:

"On 11 January 2012 a MAS [Medical Assessment Service] assessor, Professor Lance issued a certificate which found that the appellant had suffered an aggravation of degenerative change in his neck with internal disc disruption in his cervical spine and the muscular ligamentous contusion and aggravation of degenerative change in his back as a result of the subject accident. ... Again none of that evidence was referred to anywhere by the trial judge although it is accepted that the history recorded by Professor Lance in relation to the circumstances of the accident itself was wrong however Professor Lance found that the appellant had suffered a relatively minor whiplash injury in the subject accident."

111 It is not apparent from the trial transcript that the plaintiff's counsel took the trial judge to Professor Lance's report in submissions. That may well have been because Professor Lance's report was tendered by the defendant, not the plaintiff. There was no reference to Professor Lance's evidence in oral argument in this Court.

112 Based on the complaint noted in the written submissions for the appellant, there was no material error on the part of the trial judge in failing to refer to Professor Lance's report, prepared for another purpose.

113 Dr Peter Conrad saw the appellant on 23 October 2006 and again on 7 July 2011. Dr Conrad provided two brief reports dated 25 October 2006 and 11 July 2011. The appellant noted Dr Conrad's view that the appellant had suffered a whiplash injury to his neck and an injury to his lumbar spine, but was fit to do 15 hours per week of light work. Dr Conrad was referred to by counsel for the defendant at trial as one of three practitioners given a history which made no reference to the motorcycle accident in Vietnam; it was said that his opinion depended on accepting the plaintiff at face value: Tcpt, 15/08/12, p 42.

114 It was correct that Dr Conrad was not given a history involving the Vietnam accident. He set out Mr Lu's work history with his employer, which included returning to work in September 2003 on light duties and gradually working back to normal hours. Dr Conrad recorded that Mr Lu continued to work "for another four or five months" and resigned "because the insurance company did not pay for physiotherapy, which was suspended, so that his back pain intensified and he could not continue with his work." Dr Conrad's opinion was that Mr Lu had sustained "a whiplash injury to his neck and an injury to his lumbar spine with ongoing pain and stiffness in his neck with some non-specific radiculopathy in both arms and pain and stiffness in his back with non-specific radiculopathy in both legs." Dr Conrad thought that Mr Lu needed "conservative treatment and he should have ongoing physiotherapy from time-to-time on a needs basis." He thought him capable of 15 hours per week of light duties, not lifting more than 5kgs or doing repetitive lifting or bending. (That description satisfied the description by the trial judge of the work that Mr Lu in fact did: at [29].)

115 On 24 May 2012 Dr Conrad saw Mr Lu again. He noted Mr Lu's report that "his condition continues to deteriorate." His underlying opinion as to his condition did not change.

116 The trial judge was not taken to Dr Conrad's report in submissions by Mr Lu's counsel. The basic finding of Dr Conrad that the appellant had suffered a whiplash injury and was fit to do 15 hours per week of light duties was identified in the appellant's written submissions in this Court, at par 26. Nothing was made of it as a basis for alleging error: pars 35-36, nor was it addressed in oral argument.

117 In these circumstances, little was to be gained by the trial judge considering Dr Conrad's report. Indeed, it was one of the documents before Professor Lance, whose opinion post-dated most of the medical evidence. Failure to refer to Dr Conrad disclosed no material error.

118 The trial judge had access to video evidence of the plaintiff driving a car "without any apparent difficulty"; "walking easily, bending over and stretching and even twisting, walking up steps and sorting through racks of clothes and picking up a pair of boots": at [36]. That evidence was not consistent with Mr Lu's description of his condition.

119 The trial judge's conclusions with respect to the appellant's physical injuries concluded with the following passage at [39]:

"He claims not to have been able to work at any time when he was in Australia after about June 2003. It is impossible to accept that someone who could travel around on a motorbike day after day in Vietnam, and who was involved in an accident resulting in surgery to a ruptured spleen, as well as endure the approximately nine hours of sitting whilst flying on aeroplane to get there; could not do a simple job as a courier whilst he was in Sydney. He also claimed that he still did kung fu training. I cannot understand how he could do this if he were as disabled as he says he was. I am unable to accept the plaintiff as a credible witness. He is entitled for damages for a small period only and thereafter he is entitled to nothing."

120 There was an error in this statement: Mr Lu worked in circumstances noted above up to April 2004, from about June 2003.

(c) evidence as to psychiatric injury

121 The trial judge dealt more cursorily with the evidence of psychiatric injury. However, the only psychological assessment undertaken prior to 2007 was one dated 15 July 2003, undertaken by a psychologist at St Vincent's Private. The psychologist, Mr Jeffrey Weatherby, noted the difficulties of testing a patient of Vietnamese background and expressed concern that Mr Lu appeared to "exaggerate his symptoms" and recorded scores indicative of "malingering". He rejected the likelihood of significant benefits from "pain management based on cognitive behavioural principles" due to a significant "lack of motivation and responsibility": report, p 8. Mr Weatherby noted that Mr Lu was taking anti-depressants, although, contrary to instruction, on an inconsistent basis.

122 After he returned from Vietnam in 2006, Mr Lu began seeing a psychiatrist, Dr Luong, on an intermittent basis. In October 2007 Dr Luong prepared a certificate, "to whom it may concern", certifying that Mr Lu suffered from "a severe Major Depressive Disorder." The purpose of the certificate was apparently to allow him to travel with a significant quantity of Aropax, being his then prescribed medication.

123 On 4 September 2007 the appellant saw Dr Thomas Oldtree Clark, consultant forensic psychiatrist. The consultation was on the basis that Mr Lu had a "worker's compensation claim." He told Dr Clark that he had to resign from his job in early 2004 because he was "full of a barely controlled anger about his pains." Dr Clark diagnosed him as having "a chronic pain associated with a trauma, a form of Post-traumatic Stress Disorder ... associated with a chronic depression or Dysthymia." Dr Clark further expressed the opinion:

"This man went through a shock experience in an MVA [motor vehicle accident], sustaining many injuries. Since then, he has become anxious, irritable and depressed."

124 In a second report, dated 5 April 2009, Dr Clark noted that Mr Lu had said he had "suffered a loss of consciousness in the accident" and had to be "assisted from his car." He noted that he "got out of the car and rang his boss who attended." Mr Lu also reported having returned to work but having been "dismissed" in 2004.

125 The trial judge referred to Dr Clark's opinions but declined to accept the diagnosis because it was "founded ultimately on the plaintiff telling him the truth about the accident and what happened to him thereafter": at [35]. The account was not accepted. (The judge did not accept Mr Lu's account, for example, of losing consciousness in the car.) In reaching his final conclusion as to psychiatric injury, the trial judge noted an opinion by Dr Sydney Smith, who was called for the defendant and who was the only medical practitioner to give oral evidence. The judge's conclusion was expressed in the following terms at [38]:

"There is also no evidence of a satisfactory nature that links any psychiatric complaint he might have to the accident. I am not convinced that he suffers from any psychiatric condition at all, but if he does, it is unrelated to the accident. Dr Smith gave evidence that I accept that he may well suffer from some psychotic condition, but such a condition will not be caused by this accident. He is not entitled to damages because he suffers from any form of psychosis, since it was not caused in any way by the accident."

126 In outlining the appellant's medical case in written submissions in this Court, the appellant's counsel noted that the appellant had been assessed by Dr Lewin for the Medical Assessment Service on 18 March 2008. Dr Lewin diagnosed the appellant as suffering from "an adjustment disorder" and thereby a 7% whole person impairment. Dr Smith also formed the view that he was suffering from an adjustment disorder "with depression and irritability", if the history provided to him were to be accepted.

127 There is no doubt that the trial judge dealt somewhat dismissively with the psychiatric evidence. However, he did so on the basis that a causal link with the motor vehicle accident had not been established. That link was necessarily, in the circumstances, the chronic pain. For the reasons already given, the trial judge was not satisfied that Mr Lu suffered continuing on-going physical injury. Thus, Dr Lewin's report was based upon Mr Lu's reported "emotional response to the motor vehicle accident and to the experience of pain": p 12. He described Mr Lu as suffering from "a Chronic Pain Disorder" and having developed a Depressive Reaction: p 11.

128 All of the available reports were reviewed by Dr Smith. He noted that the appellant had told him that whilst in Vietnam he suffered "multiple strokes", including a left hemiparesis "which lasted for six weeks."

129 Further, differing histories were provided with respect to the motor cycle accident in Vietnam. but, as Dr Smith noted in his report at p 25:

"He was riding a motorcycle when he collided with another motorcycle. He apparently ruptured his spleen and required a laparotomy and the removal of the spleen. He spent about two weeks in hospital. Although he has denied that his accident aggravated his various spinal and limb pains, this would be surprising and it will be necessary to examine the hospital notes regarding this admission."

130 Dr Lim recorded that he described himself as having been "thrown onto the handlebars" of the motorcycle, causing significant internal bleeding and the rupture of his spleen. According to Dr Lewin he was a passenger on the motorcycle: report, p 8.

131 On any view, the evidence of a causative connection between the motor vehicle accident in 2003 and any psychiatric disorder depended upon Mr Lu's history. Having rejected Mr Lu's evidence, on which the psychiatric assessments were based, it is not erroneous on the part of the trial judge to conclude that the causal link was not established.

132 It is true that since 2006 the appellant has been treated by a number of psychiatrists on the basis that he would benefit from various forms of medication. However, there was a lack of consistency in the diagnoses, rendering it difficult to know the precise condition from which he suffered. It may be accepted that the psychiatrists would not have continued to treat him with medication if not satisfied that (a) he suffered from a condition for which the medication was appropriate and (b) the medication had beneficial effects. It did not follow that such treatment was required as a consequence of the motor vehicle accident in 2003. At the very least, it was necessary to discount any consequences resulting from the accident in Vietnam.

Conclusions

133 To the extent that there was any inadequacy in the reasons or fact-finding undertaken by the trial judge, these are defects which could not be remedied by this Court. Accordingly, if the appeal were to be upheld, it must be on the basis that a retrial is warranted. That course is only to be taken, however, if the Court is satisfied that there has been "some substantial wrong or miscarriage": Uniform Civil Procedure Rules 2005 (NSW), r 51.53. The circumstances of this case do not warrant such a conclusion.

134 As noted above, the only specific error alleged is immaterial to the ultimate conclusions reached. In other respects, the conclusions are supported by evidence and depend to a significant extent on the judge's assessment of Mr Lu's evidence. It is apparent that Mr Lu failed to satisfy the trial judge on the balance of probabilities of the critical elements in his claim for significant damages. In these circumstances, the appeal should be dismissed.

135 SACKVILLE AJA: I have had the benefit of reading in draft the judgments of McColl JA and Basten JA. Although there is some common ground in the two judgments, particularly in identifying inadequacies in the primary Judge's reasoning and fact finding, their Honours differ as to whether this Court should order a new trial or simply dismiss the appeal. Basten JA proposes the latter course on the ground that the Court cannot be satisfied that there has been a "substantial miscarriage of justice", as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.53.

136 It is always regrettable when an appellant court finds it necessary to order a new trial. Such an order inevitably involves the parties in additional inconvenience, expense and delay. It is no doubt for this reason that UCPR, r 51.53, echoing common law principles developed in relation to jury trials, provides that the Court is not to order a new trial on any ground "unless it appears to the Court that some substantial wrong or miscarriage has thereby been occasioned": see Tory v Megna [2007] NSWCA 13 at [34]-[36] (Spigelman CJ, Beazley and Bryson JJA agreeing). The need for caution in ordering a new trial is emphasised by the requirement in s 56 of the Civil Procedure Act 2005 (NSW) that the Court, in interpreting the UCPR, must seek to give effect to the "overriding purpose" of facilitating "the just, quick and cheap resolution of the real issues in the proceedings": Tory v Megna at [28]-[30].

137 Bearing these matters in mind, I nonetheless agree with McColl JA that the appropriate course in the present appeal is to allow the appeal and order a new trial limited to damages. To adapt the language of Heydon J in Dixon v Whisprun Pty Ltd [2001] NSWCA 344, at [74] (Beazley JA and Davies AJA agreeing), there are sufficient doubts and questions about the primary Judge's reasoning and fact finding to conclude that the appellant's claim was not given proper consideration (Dixon v Whisprun concerned Supreme Court Rules 1970 (NSW) Pt 51 r 23(1), the predecessor to UCPR r 51.53). On this basis, I am satisfied that a substantial wrong or miscarriage has been occasioned to the appellant.

138 There are several points that should be made about the proceedings at first instance that are relevant to the conclusion that I have reached.

139 First, as the primary Judge noted (at [4]-[5] and [8]), it was not easy to evaluate the appellant's claims. One difficulty was that the appellant gave evidence through a Vietnamese interpreter and his Honour found parts of the appellant's evidence hard to understand. That difficulty, as his Honour explained, was compounded by delays in making the transcript of the proceedings available. His Honour's task was further complicated by the very large volume of medical records and reports with which he was confronted. As both McColl and Basten JJA have observed, the medical and psychological experts expressed conflicting opinions, yet only one (Dr Smith, a psychiatrist) was cross-examined. Moreover, whether by reason of pressures of time or otherwise, his Honour appears to have received relatively little assistance in resolving the apparent conflicts in the expert evidence.

140 Secondly, as McColl JA has explained, his Honour overlooked some evidence favourable to the appellant. In particular, the primary Judge erred in finding that the appellant had made no complaint to the respondent immediately after the accident concerning the injuries he had sustained. It is true that this error does not necessarily detract from his Honour's preference for the respondent's account of events in the wake of the accident over that of the appellant. Even so, there can be little doubt that the error played some part in the primary Judge's rejection of the appellant's case (at [34]) as not making "any sense".

141 Thirdly, the appellant's counsel on the appeal did not dispute that the appellant had given evidence in "a florid fashion". It was clearly open to the primary Judge to find that the appellant greatly exaggerated his physical symptoms, both in his dealings with doctors and in his evidence at trial. But such a finding does not necessarily mean that the appellant was deliberately malingering or that he was not experiencing subjectively physical symptoms throughout the period between the accident and the trial.

142 It is important to appreciate that one of the submissions put to the primary Judge on the appellant's behalf was that the evidence supported a finding that, although the accident may have had relatively minor physical consequences for the appellant, it triggered a major depressive illness for which he had received treatment. That illness, so it was said, involved a "conversion disorder" - that is, a condition in which psychological stress causes the sufferer to experience physical symptoms. It was submitted that the psychiatric injury was compensable, since it was a consequence of the respondent's negligence.

143 The primary Judge dealt with this aspect of the appellant's case very briefly. His Honour said that he was "not convinced that [the appellant] suffers from any psychiatric condition at all", but that if he did the condition was unrelated to the accident. His Honour made no express finding that the appellant was a malingerer or had feigned symptoms at any particular time after the accident. Some expert reports, such as those by Dr Chase, an occupational physician (June 2003), and by Mr Weatherby, a clinical psychologist (July 2003), raised the possibility that the appellant had been malingering, but each indicated that further investigation was required. As Mr Rewell SC, who appeared for the respondent on the appeal, accepted, it was not directly put to the appellant that he had deliberately feigned his symptoms, whether shortly after the accident or subsequently.

144 It is not clear from the primary Judge's reasons why he was not prepared to find that the appellant suffered from a psychiatric condition. Even if Dr Clark's opinion, which the primary Judge rejected, is put to one side, there was other evidence that the appellant suffered from a psychiatric disorder. As Dr Smith noted in his report of 10 February 2012, Dr Luong, the appellant's treating psychiatrist, considered in May 2007 that the appellant was suffering from a major depressive disorder. In March 2008, Dr Lewin, who made a determination of the degree of the appellant's impairment for the purposes of the Motor Accidents Compensation Act 1999 (NSW), accepted that the appellant had an adjustment disorder which had "arisen within the context of his emotional response to the motor vehicle accident and to the experience of pain".

145 The finding that the appellant exaggerated his symptoms is by no means inconsistent with the existence of a psychiatric condition, such as a major depressive illness. The primary Judge may have had good reasons for rejecting the diagnoses of Dr Luong and Dr Lewin, but in my view those reasons do not emerge from the judgment. I appreciate that his Honour considered the video evidence of the appellant's physical abilities and the extent of his activities in Vietnam were inconsistent with some of his claims. But his Honour seems to have referred to this evidence in support of his finding that the appellant exaggerated his physical symptoms, rather than as a basis for concluding that the appellant was not suffering at any material time from a significant psychiatric condition.

146 Nor is it clear why his Honour found that any psychiatric condition from which the appellant suffered was unrelated to the accident in February 2003. It is possible that his Honour considered that any depressive illness from which the appellant suffered post-dated the injuries he sustained in the 2005 motorcycle accident in Vietnam and was attributable to that accident, rather than to his earlier injuries. However, the judgment does not identify this as the reason.

147 In the critical paragraph (at [38]), the primary Judge appears to assume that the appellant's case was that he was suffering from a psychotic condition which was attributable to the 2003 accident. His Honour accepted Dr Smith's evidence that a psychotic condition cannot be attributed to stress arising from trauma (as distinct from a progression attributable to genetic factors). But in his cross-examination, Dr Smith agreed that the 2003 accident could have triggered a non-psychotic major depressive disorder in the appellant. Dr Smith also took no issue with Dr Luong's diagnosis that the appellant in 2007 was suffering from a major depressive illness. Dr Smith further accepted that a person can subconsciously "fabricate" symptoms by reason of what he described as a "somatoform disorder" which may be causally related to trauma.

148 While I recognise the difficulties confronting the primary Judge, I do not think that his Honour gave adequate reasons for rejecting the appellant's case, insofar as it was based on a psychiatric illness attributable to the accident. Of course, it does not follow that the appellant is bound to succeed on a retrial. Nonetheless, the trial miscarried in the relevant sense because the appellant's case has not been properly addressed. This Court cannot be sure as to the result that would be reached in a new trial if the appellant's case is appropriately considered: see Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[86] (Basten JA, Ipp and Campbell JJA agreeing).

149 I agree with the orders proposed by McColl JA.

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Decision last updated: 30 October 2014