State Rail Authority of NSW v Shimon [2000] NSWCA 382 (1 December 2000)

Last Updated: 16 March 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: STATE RAIL AUTHORITY OF NSW v SHIMON [2000] NSWCA 382

FILE NUMBER(S):

40768/99

HEARING DATE(S): 1 December 2000

JUDGMENT DATE: 01/12/2000

PARTIES:

STATE RAIL AUTHORITY OF NSW v WILLIAM SLEWA SHIMON

JUDGMENT OF: Mason P Priestley JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC1430/99

LOWER COURT JUDICIAL OFFICER: Hogan A/DCJ

COUNSEL:

Appellant: J Guihot

Respondent: K Ryan

SOLICITORS:

Appellant: Creagh & Creagh

Respondent: Ron Kramer & Associates

CATCHWORDS:

Damages - personal injury - credibility finding. ND

LEGISLATION CITED:

DECISION:

Dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40768/99

DC 1430/99

MASON P

PRIESTLEY JA

HEYDON JA

Friday 1 December 2000

STATE RAIL AUTHORITY OF NSW v William Slewa SHIMON

JUDGMENT

1    MASON P: Following a trial in the District Court the respondent was awarded a verdict of $773, 634 in relation to a work injury suffered on 20 November 1986.

2    The respondent was descending from the cabin of a dumper truck when he slipped and fell heavily, hitting his back on the ground. Negligence was found against the appellant, his employer and it is no longer in issue.

3    The trial took place before Hogan ADCJ in late 1999. Only two witnesses were called, the respondent and a private inquiry agent who filmed him performing various activities. Two bundles of medical reports were tendered with none of the doctors being required to attend for cross-examination.

4    No explanation appears for the delay in the prosecution of the proceedings that had been commenced in the District Court in 1987. There were proceedings in the Compensation Court in 1989. I mention these facts in the context of recording that the appellant does not suggest forensic disadvantage stemming from the delay in prosecuting the District Court action.

5    In a reserved judgment, the learned trial judge found negligence. Then, after a review of the evidence, he concluded in the following terms:

In summary, as a result of the defendant's negligence, on 20 November 1986 the plaintiff suffered a fall which injured his back. No bones were broken. The fall was sufficiently severe to require a stay of about 12 days in hospital. Over a period of about 18 months he made a number of attempts to return to work, which were not successful because of pain. He has not worked since mid-1988 and it is obvious that he will never be fit for work in the future.

Although there is spinal pathology in the lower back and to a lesser extent in the cervical area, there is no obvious nerve root involvement. There is no treatment that can improve his condition. There has been significant emotional overlay over the years.

He is not in constant agony. The level of pain fluctuates, becoming worse after any prolonged or strenuous activity. Medication relieves the pain to some extent. Sometimes the pain is very bad. Sometimes there is no pain at all, but periods without pain probably do not last long.

That has been his condition since 1986. He is not going to get any better. He may get worse. There is no evidence that he has anything more than a normal life expectancy, which would be about 25 years.

6    His Honour assessed the damages as follows:

General damages 50,000

Interest 5,150

Past economic loss 290,754

Interest 257,024

Lost income earning capacity 174,859

Out of pocket expenses 12,817

Fox v Wood 1,500

792,104

Less Compensation paid 18,470

Total: 773,634

7    Grounds 1, 2, 3, 4 and 6 complain in various ways about the manner in which the judge reached his conclusions about the nature and extent of the respondent's injuries and their incapacitating effect.

8    The judge recorded that on the day of the accident the respondent was taken to hospital complaining of severe pain the lower back. He was very tender over the L5/S1 area, but there were no neurological deficits. X-ray of the cervical spine did not reveal any abnormality. He was given physiotherapy, and slowly ambulated, but not discharged for 12 days. Despite physiotherapy, symptoms did not improve and he was referred to an orthopaedic specialist, Dr Trevitt in January 1987. Dr Trevitt thought that his apprehension and fear of pain were significant and were preventing him from adequately exercising and improving the strength of his lower back.

9    He returned to work as a flag man about a week later but found that bending hurt his back and he took more time off work.

10    In August 1987 he was examined by Dr Smith, a surgeon specialising in low back pain. He gave a history which included intermittent radiation of pain down the left leg from about a month after the accident. On examination there was widespread tenderness. Forward flexion was limited, with spasm. X-rays were inconclusive. Dr Smith thought his presentation was consistent with nerve root irritation at the lumbo sacral disc.

11    In September 1987 he was examined by Dr Rasanayakam who found tenderness from L4 to S1, with some rigidity of the back muscles as well. Lumbar movements were restricted to 75% of normal. There were no neurological deficits. Dr Rasanayakam recommended further investigation by CT scan with only conservative treatment being indicated.

12    Over the next nine months the respondent returned to light duties occasionally, but he was able to continue for only a few days at the time. Ultimately his services were terminated June 1988. He has not been employed since then.

13    Dr Smith re-examined the respondent in May 1989. Although there was slightly more movement on straight leg raising, forward flexion was again markedly limited, with a slew to the right with spasm. He suggested admission to hospital for assessment and traction, but arrangements were not made for this to happen.

14    In June 1989 Dr Tong reported that the respondent's condition was virtually unchanged. He expected slow improvement over time.

15    There were no reports from any doctors about the respondent's condition over the next six years or so, but the trial judge did not infer from this that the respondent was not in pain. The respondent had given evidence of continuing intermittent pain and it was well open to the judge to accept this evidence.

16    Dr Tong referred the respondent to a general surgeon, Dr Sanki who first saw him in November 1995. The respondent now complained of pain in both legs. Dr Sankey's opinion was that the respondent had suffered a disc lesion in the back as a result of the injury. His prognosis was guarded. In December 1996 the respondent was complaining to his general practitioner of cervical pain radiating down the right arm in addition to lower back pain. CT scans showed compression of the nerve roots at L5/S1 and generalised bulging of the C6/C7 disc.

17    The respondent went back to Dr Smith in April 1997. He considered that the respondent had deteriorated significantly since last examined and that he was now well established in a chronic pain pattern. He interpreted the radiology as demonstrating lumbo sacral disc lesion and significant cervical disc pathology. He thought both were causally related to the accident. In his opinion the respondent was permanently totally unfit for work.

18    The respondent's solicitors sought an opinion from a surgeon, Dr Patrick in April 1997. Dr Patrick carefully reviewed reports and radiography since the accident and he reported as follows:

It is likely that the fall of 20 November 1986 has resulted in injury to the lumbo sacral region of the spine, but without major disc protrusion. Some early facet arthrosis, which can be post-traumatic, and a very small disc herniation is evident on the CT films of November 1995.

I believe Mr Shimon is genuinely suffering from the continuing symptoms as described, and these would be consistent with the long-term sequelae of an injury such as occurred in November 1986 necessitating two weeks hospitalisation. It is likely that there has been development of some significant additional emotional overlay with the passage of years, and he now has the habitus of the chronic invalid, and I believe the reality is that it is very unlikely that he will be able to return to the workforce in any capacity. This is resulting from both the physical and emotional sequelae of the work accident of November 1986.

19    The judge addressed the evidence of the appellant's doctors and resolved the conflicting medical issues in the following terms:

These proceedings began in July 1987. There is no evidence that the defendant asked the plaintiff to submit to a medical examination on behalf of the defendant until November of 1997. The defendant tendered reports from Dr Bornstein, Dr Korban and Dr Fearnside. None of the doctors whose reports are in evidence, whether in the plaintiff's case or the defendant's, gave oral evidence or were cross-examined. They could hardly be said to be all in agreement. As so commonly happens, I must simply do the best I can to decide where the truth lies on the basis of inherent probability and internal evidence in the reports.

Dr Bornstein is an orthopaedic surgeon. He examined the plaintiff on 12 November 1997. He formed the view that the plaintiff was exaggerating his presentation. Having observed the plaintiff in the witness box, and having seen his behaviour as shown on the videotape exhibit 2, I think it is likely that he did exaggerate to some extent. Dr Bornstein however, so far as appears from his report, relied upon the history given him orally by the plaintiff, his examination on that day, and radiography performed in 1993, 1995 and 1997, with perhaps some information from the hospital. His conclusion was that the changes noted on the x-ray were not sufficient to produce the presentation that he observed. He strongly doubted that the disc protrusion that he did see was related to the original accident.

There is no evidence in the case of any other incident, and Dr Bornstein does not proffer any other explanation for the undoubted pathology.

On 28 November 1997 Dr Fearnside, a neurological surgeon, examined the plaintiff. He appears to have received a more careful and detailed history than did Dr Bornstein. The radiography that he reviewed was performed in 1995 and 1997. It did not demonstrate to him any significant pathology. Again, the plaintiff almost certainly exaggerated to him his disability. Dr Fearnside considered that the plaintiff had suffered a minor soft-tissue injury to his lower back and neck over ten years before. The effects of the injury would, he said, long ago have resolved. He found it difficult to attribute the clinical presentation to the accident of 20 November 1986. He did not say it was impossible.

Dr Fearnside re-examined the plaintiff on 14 January 1999. In his opinion the plaintiff had not improved since his previous examination. He commented,

He continues to be severely disabled, by his accounts.

It is surprising that there has not been some improvement since this incident in 1986, particularly having regard to the fact that no clear pathology has ever been demonstrated in his low back.

Dr Korber, radiographer, reviewed the x-rays and CT scans of the lumbar spine that had been taken in 1995 and 1997. He said that it was not possible to associate radiological change in 1997 with injury ten years before, without images from the earlier period for comparison. Subject to that qualification, he thought that if there had been a substantial disc injury in 1986, he would have expected significant disc space narrowing over the decade. This had not occurred. Whether the plaintiff had aggravated a pre-existing degenerative condition was a matter for clinical determination.

Dr Bornstein also re-examined the plaintiff on 20 January 1999. He did not have available any new x-rays. He formed the forthright view that the plaintiff was frankly malingering.

While I think that, for reasons which may well be cultural and unconscious rather than deliberate, the plaintiff presented to the defendant's doctors as more restricted in his movements than he really is, I do not accept that assessment of Dr Bornstein. The opinion of Dr Rasanayakam, who saw the plaintiff in 1987, is, on paper, of at least equal weight with that of Dr Bornstein, and he found no evidence of any exaggeration. I would observe also that the rigidity of the back muscles observed by Dr Rasanayakam in 1987, and the spasm observed by Dr Smith in 1989 and by Dr Sanki in 1995, are, as I understand it, objective signs.

In the final analysis, I am more inclined to accept the views of the doctors who were seeing him more regularly over the decade following the accident, especially the specialists, Dr Trevitt and Dr Smith, and those of Dr Patrick. The plaintiff's presentation to them appears to have been much less exaggerated, and they did not observe any significant contrast between his symptoms and the results of their tests and clinical examinations.

20    I have already set out the concluding summary in the judgment.

21    The appellant points out (correctly) that there was a clear conflict between the two sets of medical opinions. In summary, the respondent's specialists considered that he had sustained a disc protrusion in the lumbar spine as a result of the accident. The appellant's experts thought that he may have sustained a minor soft tissue injury to the lower back and perhaps the neck, with the effects of any such injuries long having ceased. The trial judge had to resolve the issue on the basis of the respondent's testimony, the video and the conflicting medical reports.

22    The appellant submits that the trial judge confined himself to deciding the matter "on the basis of inherent probability and internal evidence in the reports" (these remarks appear near the start of the lengthy passage set out above). It is submitted that he failed to perform an essential assessment of the respondent's credit. That assessment was vital in light of the views of the appellant's doctors that the respondent was a "malingerer" (Dr Bornstein) and a "chronic invalid" (Dr Patrick).

23    I reject the submission that the trial judge failed to consider the respondent's credibility as a medical historian or a witness at trial. It is clearly implicit in the judgment that his Honour gave qualified acceptance to the respondent as a witness of truth. His Honour had seen the respondent being cross-examined and viewed the video taken by the private inquiry agent. The judge made express reference to these factors as corroborating Dr Bornstein's own assessment that the respondent was exaggerating his presentation.

24    In Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 McHugh J said:

As I pointed out in Jones v Hyde, when a trial judge resolves a conflict of evidence between witnesses the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue.

25    The appellant suggests that the judge failed to have regard to the possibility that the respondent's own specialists may have been presented with a similar exaggerated presentation. This strikes me as an unrealistic submission. But in any event I see no error in a trial judge crediting experienced medical specialists with a capacity critically to assess a patient's history and reported symptoms and to form a credible diagnosis based upon their own observation placed side by side with the radiological and other evidence before them. Where a doctor perceives that a patient is exaggerating his or her symptoms, then it may be expected that this will be recorded in a medico-legal report (as happened in the present case with the appellant's specialists). Dr Smith twice records observations of the respondent as he undressed and moved about on the couch. It was not in my view incumbent on the trial judge in this particular matter to enter into the detail of the basis of his conclusion that the respondent had "almost certainly exaggerated" the extent of his disability to the doctors who examined him at the request of the appellant.

26    Furthermore, I read the findings in the concluding summary near the end of the judgment (RB 19-20) as based in part upon the acceptance of the respondent's evidence at trial in light of the video material.

27    The judgment contains reasons for preferring the thrust of the evidence from the respondent's doctors, including their greater association with the respondent, and the earlier (and in Dr Smith's case longer) period in which they treated and/or examined him. I disagree with the suggestion that, because the respondent's presentation to his own doctors was less exaggerated, this cast some additional doubt upon their medical assessments which had to be addressed in some particular way in the judgment. It is significant that the judge added that these doctors "did not observe any significant contrast between [the respondent's] symptoms and the results of their tests and clinical examinations".

28    The appellant submits that the trial judge erred when, in the course of his assessment of Dr Bornstein's evidence, he said "there is no evidence in the case of any other incident and Dr Bornstein does not proffer any other explanation for the undoubted pathology". Read literally and correctly, that statement of the judge does not accurately record the portion of Dr Bornstein's written evidence when he said that it was his view that the impairment of the respondent was "largely related to a disease process unrelated to his employment". (CB 86)

29    I am prepared to accept that this might have been addressed and that it is possible that his Honour misunderstood this portion of Dr Bornstein's evidence. But I do not think that this undermines the overall thrust of the judge's reasoning in which he dealt with the significant issues raised in the evidence of the appellant's doctors and gave reasons for discounting their evidence, which reasons, when taken with his reasons for accepting the evidence of the respondent's doctors, are sustainable.

30    The appellant complains about his Honour's speculation that the respondent may have exaggerated his condition to the appellant's doctors "for reasons which may well be cultural and unconscious rather than deliberate". It is suggested that there is no evidentiary basis for such a comment, parenthetical though it was. I disagree. After all, the trial judge had seen the respondent give evidence (some of it through an interpreter).

31    The next group of grounds of appeal (1, 5 and 7) are not unrelated to the grounds already discussed. Here the appellant concentrates upon the bottom line, as it were, namely the rejection of the appellant's medical hypothesis of long resolved soft tissue back and neck strain.

32    Much of my earlier remarks apply in rebuttal of this attack. The judge was presented with a fairly clear choice between two situations. I see no appealable error in his acceptance of that espoused by the respondent's doctors in light of:

(a) the now unchallenged circumstances of the accident itself;

(b) the symptoms manifesting themselves in the weeks following the accident;

(c) the opinions of the doctors whose evidence the judge preferred;

(d) the absence of evidence suggesting an alternative cause of severe and prolonged disability, except for malingering (which the judge was entitled to reject);

(e) the readiness of the appellant's own doctors to accept that there was some CT evidence supportive of the respondent's case and the possibility of a pathological reason for the continuing disability, exaggerated though it was;

(f) the evidence of the 1998 video, which though not before us, seems to have had some indications of back problems (cf CB 29); and

(g) the history of continuing debilitating pain given by the respondent to various doctors and in his oral evidence.

33    The appellant submits that the trial judge misapprehended the medical evidence, overlooking the live issue between the experts about whether there was any underlying spinal pathology. I disagree. There are numerous references in the judgment to the competing views and considerable assessment of the probabilities as to which was correct in light of the totality of the evidence.

34    I cannot accept the submission that the trial judge failed to analyse the substance of the competing medical reports in forming his view that he would accept the respondent's case in preference to the appellant's case.

35    For the appellant to point to Dr Korber's suggestion of the possibility or even probability of underlying degenerative changes does not take the appellant very far. Dr Korber was comparing CT scans of 1995 and 1997, ie long after the accident. Dr Korber himself conceded that "anyone making a radiological association without prior films is in my opinion probably guessing". It is true that Dr Korber also opined that

if there had been a substantial disc injury in 1986 I would have expected significant disc space narrowing over a period of nine to eleven years. This had not occurred.

36    The judge was bound to place Dr Korber's evidence side by side with the totality of the evidence and he did not, in my view, err in reaching the ultimate conclusion that he did.

37    The recent reports of Drs Smith and Patrick were properly available to the judge for acceptance in light of his assessment of the respondent as an accurate and honest medical historian.

General damages and interest on past general damages

38    Grounds 8, 9 and 15 challenge the assessment of $50,000 general damages and the consequential award of interest thereon.

39    This attack really depends on the earlier challenges, which I have rejected. Once it is concluded that there was genuine, continuing, intermittent back pain with the consequential deterioration recorded by Dr Smith in 1997, then the challenge must fail.

40    The delay in launching the proceedings until 1999 has not brought about a windfall gain to the respondent in the matter of interest. I see no error in the exercise of the judge's discretion in this matter and I note that this particular challenge is no longer pressed.

41    The remaining grounds of appeal (10, 11, 12, 13 and 15) challenge the awards for past and future loss of earning capacity. Once again, the main thrust of the appellant's challenge to the award for economic loss relates to the underlying conclusion of genuine and permanent disability.

42    The appellant does point to material in the transcript in which there was some exploring of the efforts made or not made by the respondent in mid-1988 in looking for factory work in the time immediately after he was dismissed from his employment by the appellant. The judgment does not address this matter, but I see no error in this regard.

43    The trial judge found on the totality of the evidence before him that the plaintiff had been totally incapacitated and that he would remain so. This view turned, in large part, upon the medico-legal reports of Dr Smith and Dr Patrick, whose conclusions the judge obviously accepted.

44    In light of that acceptance it was open to his Honour, in my view, to translate the finding of disability into the award of loss of earning capacity that was made. I do not understand there to be any dispute about the mathematics of that award.

45    For these reasons I propose that the appeal should be dismissed with costs.

46    PRIESTLEY JA: I agree.

47    HEYDON JA: I agree.

48    MASON P: The appeal is dismissed with costs.

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LAST UPDATED: 16/03/2001