Re Eugenia Maria Laxy v Ibm Australia Limited [1992] FCA 139; (1992) 35 FCR 79 (2 April 1992)

FEDERAL COURT OF AUSTRALIA

Re: EUGENIA MARIA LAXY
And: IBM AUSTRALIA LIMITED
No. G27 of 1991
FED No. 164
Appeal - Evidence
[1992] FCA 139; (1992) 35 FCR 79

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Ryan(2) and Higgins JJ.(2)

CATCHWORDS

Appeal - damages - personal injury - findings of fact by Judge - review by appellate Court - influence of demeanour.

Evidence - witnesses - cross-examination - absence of cross-examination on conflicting medical opinions - allegation of malingering - rule in Browne v. Dunn - application of rule.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354

Seymour v ABC (1977) 19 NSWLR 219

Browne v Dunn (1893) 6 R 67 (HL)

Precision Plastics Pty Ltd v De Mir [1975] HCA 27; (1975) 132 CLR 362

HEARING

CANBERRA
2:4:1992

Counsel for the Appellant: Mr R. Williams, QC with Mr R. Crowe

Solicitors for the Appellant: Pamela Coward and Associates

Counsel for
the Respondent: Mr J. Maconachie, QC with Mr J. Purnell

Solicitors for the

Respondent: Snedden Hall and Gallop

ORDER

1. The appeal be allowed.

2. The judgment entered on 15 May 1991 be set aside insofar as damages in respect of the third incident on the 29th day of September 1987 were assessed in the sum of $56,122.46.

3. There be a new trial limited to the issue of damages in respect of the third incident on the 29th day of September 1987.

4. The judgment entered on 15 May 1991 be otherwise affirmed.

5. The respondent pay the appellant's costs of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The circumstances giving rise to the present appeal, which is limited to the quantum of damages properly referable to the third of three incidents which occurred on 23 September 1985, 10 April 1986 and 29 September 1987 in the course of the appellant's employment by the respondent and for which the respondent has been held liable in negligence, are set out in the judgment to be delivered by the other members of the Court and I need not re-state them.

2. Although he was satisfied that the appellant injured her back in the September 1987 incident in much the way she described in her oral evidence and that she suffered a severe episode of lower back pain in the same part of her back as in the two previous incidents, the trial judge was faced with the task of determining the extent to which the pain and disabilities of which the appellant complained were the result of that incident. An essential step in determining that question, having regard to the way in which the case was presented, was to make an assessment of the appellant and this his Honour proceeded to do. That such an assessment was essential is apparent when it is realised that the medical reports upon which the appellant relied in support of her claim were based largely upon the acceptance by the medical practitioners concerned of the history of pain and disabilities which the appellant had provided to them.

3. Having had the advantage of observing the appellant in the witness box, his Honour clearly formed an adverse view of her. Although his Honour expressed his overall impression of her as a witness in terms "that she exaggerated not only the incidents themselves but also her back pain", it is clear, on a reading of the judgment as a whole, that there was much of her evidence that his Honour did not accept.

4. There was considerable disagreement between the medical practitioners as to the cause and extent of the appellant's disabilities. It is to be observed that his Honour's task of choosing between those opinions was not made any easier by the agreement between the parties that the medical evidence should, for the most part, be adduced by tendering what were, in fact, conflicting reports without requiring the authors of those reports to attend for cross-examination. Doing the best he could with the material before him and given the adverse view of the appellant that he had formed, his Honour was entitled, in assessing the weight he should give to the various medical reports, to treat with reservation those reports that were dependent, not upon objective facts and observations, but solely upon the acceptance by the medical practitioner of the history of her condition as recounted to that practitioner by the appellant.

5. Although the judgment appealed from cannot properly be described as a model of clarity, his Honour's conclusion, in summary, was that any disability or pain which the appellant experienced more than 12 months after the occurrence of 29 September 1987 was due, not to the negligence of the respondent, but to the natural progression of the degenerative disease in her lumbar spine.

6. I am of opinion that there was evidence before the trial judge to support that conclusion and that no sufficient ground has been shown to warrant the intervention of this Court. I would dismiss the appeal with costs.

The appellant sued on three causes of action in a Writ of Summons and Statement of Claim issued 20 December 1988. There were three incidents of which she complained. They each happened in the course of her employment with the respondent.

2. The first incident was on 23 September 1985. The appellant injured her lower back whilst lifting heavy boxes of computer paper. The learned trial Judge found the respondent negligent in causing or permitting the appellant to lift those boxes. There is no appeal against that finding. General damages were assessed at $5,000.00. There is no appeal against that assessment. The back strain caused in that incident was accepted as having only temporary ill-effects.

3. The second incident occurred on 10 April 1986. The appellant stumbled into a hole in the floor. Computer paper had covered it. She jarred her body including her lower back. The learned trial Judge found the respondent liable for that incident. He assessed general damages at $2,000.00. There is no appeal against that finding or that assessment. It was accepted that the effects of that injury were also of short duration.

4. A third incident occurred during September 1987 when the appellant was required, during a fortnight's absence of another employee, to lift heavy mail bags and push a number of them around on a trolley. Despite complaints to her supervisor that the work was making her back ache, she was instructed to do the mail run again on 29 September when the employee who usually did it was once more absent. On that day, the appellant suffered a particular injury when she tried to push the trolley through a service door. The learned trial judge found the respondent liable for the damage sustained as a result of that injury.

5. Since the third incident, the appellant has continued to complain of severe pain although she acknowledged that initially there was some improvement which was not dramatic. She ceased work in November 1987. She has not worked since and claims to be totally disabled for work. As the learned trial judge noted, the appellant complained that her movements were more limited, restricted and painful after an unrelated incident on 14 August 1988 when she tripped on a tree stump.

6. There was considerable disagreement between medical practitioners as to the cause and extent of the appellant's disabilities.

7. Only two medical practitioners were called to give evidence. They were Dr John Corry and Dr Michael John Weidmann. There were tendered, by consent, medical reports from Drs Fitt, Bornstein, Carr, Newcombe, Danta and Veness on behalf of the appellant and from Drs Skapinker and Wright on behalf of the respondent.

8. Dr Corry was called for the appellant. It was his opinion that the various back strains the appellant had suffered had a cumulative effect. He summarised that opinion as follows:-

"...from the history I did obtain, it appears
that she made reasonable recovery from the first,
and fair recovery from the second, and then less
recovery from the third. And it was the third
that then was most critical in terms of her
functional work capacity."

9. He accepted that there had been, before any of the compensable incidents, an underlying disc disease. That placed the appellant at greater risk. However, Dr Corry did point out,

"The majority of people with degenerative disease
don't develop disabling back pain."

10. Dr Corry accepted that there were no objective signs to explain the appellant's complaints of back pain. He agreed that there was a significant psychological component in those complaints. He did not consider the appellant to be employable.

11. Dr Weidmann, a neuro-surgeon, was called on behalf of the respondent. He, like Dr Corry, did not find the physical state of the appellant's spine to be remarkable. He agreed that the complaints of pain could not be objectively verified. He was of the view that,

"...there is a significant psychological overlay
to her pain perception and that she seemed very
happily entrenched in the invalid role."

12. That opinion was not really different from that which had been expressed by Dr Corry.

13. It is also significant that payments of workmen's compensation were made during the appellant's absence from work even after Dr Weidmann had reported as set out above to the relevant insurer.

14. Under cross-examination, Dr Weidmann agreed that the state of the appellant's back was consistent with the traumas she had experienced and with the symptoms of which she complained. That acknowledgement, of course, must be understood in the light of Dr Weidmann's opinion that psychological overlay was present.

15. It was not put to either Dr Corry or Dr Weidmann that the appellant did not suffer from the pain and disability of which she complained. "Exaggeration" of her symptoms was accepted but was regarded as explicable on the basis of psychological overlay.

16. The reports tendered on behalf of the appellant were as follows:-

Dr Peter Fitt, General Practitioner - 12/1/88:
"...here we have a progressive backache
associated with minor trauma at work (probably
three episodes) which is not improving."
Dr David Bornstein, Orthopaedic Surgeon -
21/3/89: "There did appear to be a measure of
psychogenic overlay but overall I felt that she
was genuine in her complaint."
Dr P.B. Carr, General Practitioner - 5/7/90: "The
diagnosis is a left lateral disc protrusion at
L4-5 which might possibly be causing some
compression of the left L5 nerve root. These
findings are consistent with the injuries as
described by Mrs Laxy, and it is possible that
they were caused by them."
Dr Raymond L.G. Newcombe, Neurosurgeon -
30/10/90: "...I think it is reasonable to think
that the L4-5 disc may be making a significant
contribution to her symptoms through nerve root
pressure and that the event of September, 1987
produced lumbar disc protrusion against a
background of earlier lumbar spondylotic (sic)
change. The September, 1987 event caused
sciatica for the first time and therefore on the
basis of the history she has given me I feel that
the strains at work in September, 1987 are
principally responsible for her present state. I
am unable to rule out a significant psychological
component and in fact I think that one is
present."
Dr Gytis Danta, Neurologist - 4/9/90: "She
describes backache and sciatica, the latter, and
perhaps much of the former being due to the disc
lesions shown in the scan. It is very likely
that the various injuries, particularly the first
and third, resulted in the disc damage. Her
condition has now become chronic and she is
moderately disabled and probably unable to hold
down a job unless this would consist of very
light duties."
Dr Hugh Veness, Consultant Psychiatrist -
10/9/90: "There is general agreement that CT
Scans of (her) lumbar spine revealed
posterolateral disc bulges on the left at both
the L4/5 and L5/S1 levels. The history of
repeated injury and strain to the back, resulting
from accidents and activities at work is a fairly
typical antecedent of this type of condition. It
is unfortunate that further investigations were
not done after the first accident in September
1985. However it is likely that the initial
damage was done there and it may have been
further aggravated by the second accident in
1986. Her back condition certainly appears to
have been aggravated by the lifting, bending and
twisting of the trunk and spine necessary in the
performance of her duties...
...I could find no ulterior motive, conscious or
unconscious for the adoption of an invalid
role...
The fact of the matter is that she does have
definite radiological signs of disc disease in
her lower back and she has developed the typical
pattern of a reactive depression in a patient
with chronic pain who has also had to cope with
severe curtailment of her usual activities and
her enjoyment of life...
Depressed and stressed people often exhibit a
lower tolerance to pain than they otherwise
would. I think the "psychological factor" in
this case is no more complicated than that."

17. Dr Veness was also of the view that although she was then unfit for any work, the appellant might, after two years, be able to be -

"eased back into the work force, given no
physically demanding duties and perhaps initially
working part-time only."

18. Given the fact that the appellant had worked continuously up to the date of the third incident after the two previous incidents at work, as well as the incident of December 1982, a conclusion that, for whatever reason, the third incident had disabled the appellant for work was inevitable.

19. It would have been inconsistent with this evidence that the disabilities which the appellant claimed were a fabrication for the purpose of gain (or for some other motive). It was consistent with it that her disabilities were only partly, or even temporarily, physically based but had been overtaken and replaced by a reactive chronic pain syndrome; that is, a subconscious exaggeration or functional overlay. It was also, of course, consistent with this evidence that the appellant was significantly disabled by continuing pain from a physical cause, exacerbated by reactive depression.

20. Had the evidence remained as it was then without consideration of the reports tendered by the respondent, by consent and without cross-examination, it could not have been seriously contended that the appellant was deliberately fabricating her symptoms, nor that her disabilities indicated by the evidence were not causally related to the compensable incidents. The only issue Dr Weidmann's evidence left open was whether the "psychological overlay" played a larger role than the appellant's medical advisers believed.

21. Of course it was obvious that, if Dr Weidmann's view were correct, a significant degree of apparent exaggeration by the appellant would be present. Drs Bornstein, Newcombe, and Veness all expressed opinions consistent with that conclusion.

22. However, two other reports were tendered by the respondent. Dr John Wright, Consultant Surgeon - 16/10/90, expressed the following views:-

"She described no residual complaints beyond the
incidents of 1982, 1985 and 1986. She did not
describe back ache to me from the April 1986
incident. She consulted one doctor only,
apparently, for the incident of September 1985
and lost only one week from work. Thus it is
unlikely that she produced a disc injury in those
incidents.
The pushing of a trolley on 23.9.87 is very
unlikely to have produced disc injuries either,
as she describes the matter...
On reasonable balance, she has a whole-of-life
state of degenerative change in her lumbar discs
and in her spine generally. No incidents she
described could really be regarded as the origin
of any particular disc injury...
No doubt she has reduced back limitation because
of degenerative disease...
There were apparent exaggerations and they were
unexplained."

23. This report accepted the appellant might well have a perception of the degree of disability of which she complained. It was consistent with the appellant's medical evidence that there should be signs of exaggeration. Dr Wright, however, supported a view not raised by any other medical practitioner. That is, that the appellant's actual level of pain and disability did not arise from and had not been caused by any of the incidents at work of which the appellant had complained.

24. It is not clear whether Dr Wright would have conceded that, given the temporal correlation between the incidents in question and the current disabilities, it was at least possible for them to have caused her complaints. It is not known whether Dr Wright would have agreed that the so-called "functional overlay" could have been triggered by the incidents in question and have led to a chronic pain syndrome notwithstanding an absence of permanent physical damage. It is not known whether, or why, Dr Wright would reject the hypothesis advanced by Dr Corry, namely, that the incidents in question while not causing marked damage, rendered her degenerative spine more and more symptomatic.

25. Dr Wright was not required for cross-examination.

26. Dr J.J. Skapinker, a neurosurgeon, gave a report dated 16 October 1990. It was admitted into evidence by consent. Dr Skapinker was not required for cross-examination. He expressed the following views:-

"Examination reveals no signs of any ongoing
organic lesion which could be causing
disability. In fact at examination she showed
signs of malingering...
At most this lady sustained a muscular
ligamentous strain at the time of any of her
falls...
The pre-existing degenerative lesion was not
aggravated and none of the accidents resulted in
any permanent disability...
I do not accept that her ongoing complaints are
genuine or reasonable and in our opinion she had
made an uneventful recovery and remains fit for
her pre-accident employment with no
restrictions."

27. If these opinions are accepted they contradict those of every other practitioner to the extent that they indicate that the appellant's complaints of pain and disability could be accepted as subjectively genuine.

28. Unfortunately, his Honour's judgment does not indicate which of the various medical practitioners was to be accepted or why.

29. It was essential to find whether or not the appellant had, as Dr Skapinker believed, returned to her pre-accident condition, having suffered no more than a six-twelve week period of unfitness for work following each incident. He denied, in effect, the cumulative and progressive worsening hypothesis accepted by Drs Corry, Fitt, Bernstein, Carr, Newcombe, Danta, Veness and even Dr Weidmann (called for the respondent). He denied the presence of any functional overlay or other psychological explanation for the presentation by the appellant of continuing symptoms. His hypothesis was that she was a malingerer.

30. His Honour's findings could be consistent either with Dr Skapinker's view or with that of Dr Wright. It is not consistent with that of any other medical practitioner whose report was tendered or who was called to give evidence.
Review of findings of Trial Judge

31. The principles upon which the findings of a trial Judge may be disturbed on appeal are well-settled. Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 is authority for the proposition that the appellate court will interfere only if, notwithstanding consideration of the advantage enjoyed by the trial Judge, it is satisfied that the trial Judge's conclusions, whether as to primary facts or inferences therefrom, were erroneous.

32. The most difficult conclusion to question, generally, is a finding as to credibility. (Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193). Indeed, in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354, the High Court affirmed the proposition that where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court may not reverse that finding unless satisfied that the natural advantage of the trial judge in having seen and heard the witnesses is insufficient to explain or justify the conclusion so arrived at.

33. However, in Abalos (supra) the relevant experts whose opinions were in question were called and were cross-examined. Only Drs Corry and Weidmann were called and cross-examined in this case. Insofar as their demeanour may have had a subtle influence it could not have lead to the opinions of Dr Wright or of Dr Skapinker being preferred to theirs. If it did, there is no reason which can be inferred, and none is expressed, to explain that preference.

34. Support for the findings of the learned trial Judge rests on the assumption, urged by the respondent, that his Honour disbelieved the appellant. He did find she exaggerated. He did not say that she did so deliberately. Indeed, it was not the respondent's case at trial that the appellant was a malingerer save insofar as that might be inferred from the tender of Dr Skapinker's report. A finding of exaggeration is consistent with the preponderance of medical opinion accepting a degree of functional overlay superimposed on a significant degree of organically-based pain and disability.

35. If his Honour's finding only went so far, then the remaining medical opinions do not warrant a conclusion that such functional overlay was not the result of the cumulative effects, both physical and psychological, of the various compensable injuries and strains to which the appellant had been subjected.

36. It is also to be noted that Dr Wright's opinion seems based on a view of the third compensable incident that is not consistent with the evidence accepted by his Honour. He does not advert to consequential psychological damage. A finding that psychological damage, if present, was not a consequence of the third compensable incident is not, in our view, reasonably open on the evidence. Only if Dr Skapinker's opinion of the appellant is accepted, can it be found that she suffered mere temporary strain causing no lasting disability. Indeed, ultimately, counsel for the respondent urged that his Honour's findings were so unfavourable to the appellant that he should be taken to have gone so far as to accept Dr Skapinker's opinion.

37. If his Honour did so, that does not emerge from his reasons. A finding of that significance should and, normally, would be expressly stated.

38. A significant part of the difficulty arising in this case flows from the tender of contradictory medical reports without the Court's having the assistance of cross-examination or any other means of either reconciling them or exposing the factual assumptions necessary to validate or invalidate the opinions expressed.
Lack of cross-examination

39. His Honour was faced with a series of medical reports, some expressing diametrically opposed views. Most supported the appellant's genuine perception of pain. Only one questioned the genuineness of her complaints.

40. It is open to conclude, therefore, that the respondent did not question the conclusions expressed by the appellant's experts. However, it is equally open to conclude that the appellant did not dispute the opinions of Dr Wright or Dr Skapinker. Plainly, the parties were, in reality, at issue on those questions. However, they offered no assistance to the trial Judge by way of cross-examination or even criticism of those conflicting opinions (save insofar as Dr Veness took issue with Dr Weidmann). Only Dr Corry and Dr Weidmann explained his conclusion and indicated the limitations or qualifications, if any, which he placed upon them.

41. That raises a question as to the application of the so-called "Rule in Browne v Dunn" (1893) 6 R 67 (HL). In Seymour v ABC (1977) 19 NSWLR 219, Glass J.A. noted that the "rule in Browne v Dunn" was a rule based on fairness in the conduct of a trial. It could lead to a proposition, which had not been tested in cross-examination, being disregarded. It is not, however, a rigid rule of exclusion-

(225) "...it is going altogether too far to
contend that evidence which would otherwise be
relevant to a conclusion for which one party
contends should be disregarded because its
implications have not been put to the party
against whom the inference is to be drawn."
Mahoney J.A. -
(236) "...Failure to cross-examine a witness may
not found such an assumption or render the course
of the trial unfair if it is clear from the
manner in which generally the case has been
conducted that his evidence will be contested."

42. Yet, if an issue is essential to the fair resolution of the matter, as was the allegation of malingering, then the appellant ought to have been cross-examined so as to give an opportunity for explanation (per Gibbs J., Precision Plastics Pty Ltd v De Mir [1975] HCA 27; (1975) 132 CLR 362, 370). A Party is also entitled to know, expressly or by necessary implication, why he or she did not succeed. If the trial Judge's conclusions depended, as Counsel for the respondent has submitted, on the correctness of Dr Skapinker's view, that should have emerged clearly from the reasons for judgment appealed from. As already indicated, it does not so emerge.

43. The difficulty to which we have referred arose entirely from the way in which the case was conducted at first instance, in allowing contradictory but unchallenged evidence to be adduced by consent. Whilst it may be supposed that the appellant's case was clear enough, at least so far as internal consistency was concerned, the respondent's case was internally self-contradictory.

44. There is nothing to indicate how the respondent was putting its case and, by eschewing cross-examination of Drs Skapinker and Wright, the appellant did nothing to compel the respondent to face up to the inconsistencies in its case.

45. In the result, the real issue in the case was so obscured that the basis for the adverse finding against the appellant cannot be clearly perceived.

46. During argument, counsel for the respondent had difficulty deciding whether to submit that in finding the appellant had exaggerated her symptoms, his Honour had adopted Dr Skapinker's view of the appellant, that is, that she was malingering or had adopted the view that she was merely suffering a large element of psychosomatic pain. To adopt Dr Wright's view would have been to accept an assumption as to the facts contrary to the findings made establishing liability for the third compensable incident.

47. Given those difficulties it is apparent that the trial miscarried.
General -

48. It follows from what has been said that there must be a new trial limited to the issue of damages. In that regard, it is common ground that the damages assessed for the first two work related incidents do not need to be re-assessed.

49. However, unless the appellant is to be regarded as deliberately fabricating her symptoms, the pain and disability following the incident of September 1987, whether founded in organic causes or functional overlay, were clearly caused by that episode. No doubt the appellant's predisposition to such injury was contributed to by the previous episodes as well as the naturally occurring degenerative changes in her spine. Of course, the likelihood of some further recovery will depend on the extent to which the appellant's disabilities are found to be based on psychological factors. A successful outcome for the appellant could well be considered likely to alleviate in part the effects of her disabilities. Whether that would enable her to return to full or part-time employment is likely to be a real question.

50. It follows that the orders of the Court should be:- 1. Appeal allowed.

2. Set aside the judgment entered on 15 May 1991 insofar as damages in respect of the third incident on the 29th day of September 1987 were assessed in the sum of $56,122.46.

3. There be a new trial limited to the issue of damages in respect of the third incident on the 29th day of September 1987.

4. The judgment entered on 15 May 1991 be otherwise affirmed.

5. The respondent pay the appellant's costs of this appeal.