Teunissen v Chung & Anor [2001] NSWCA 46 (16 February 2001)

Last Updated: 3 April 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Teunissen v Chung & Anor [2001] NSWCA 46

FILE NUMBER(S):

40543/99

HEARING DATE(S): 16 February 2001

JUDGMENT DATE: 16/02/2001

PARTIES:

Richard Alan Teunissen

Anita Yuet Wa Chung

Citibank Limited

JUDGMENT OF: Powell JA Beazley JA Rolfe AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3550/97

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:

Appellant: S Norton

Respondent: G R Petty SC

SOLICITORS:

Appellant: Brydens Law Office

Respondent: Curwood & Partners

CATCHWORDS:

Motor vehicle accident

Apprehension of bias

Credibility

LEGISLATION CITED:

District Court Rules 1973: Pt 33 r 8A

DECISION:

Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40543/99

DC 3550/97

POWELL JA

BEAZLEY JA

ROLFE AJA

Friday, 16 February 2001

Richard Alan TEUNISSEN v Anita Yuet Wa CHUNG & Anor

JUDGMENT

1    BEAZLEY JA: The appellant was injured in a motor vehicle accident on 11 August 1995. The accident happened in circumstances where the first respondent unexpectedly did a u-turn in front of the appellant's vehicle. Both vehicles were written off. Liability was admitted and the claim proceeded by way of damages only. It was heard in the District Court by Naughton DCJ in June 1999.

2    His Honour awarded the appellant total damages in the sum of $11,173.05. The appellant appeals against that award. The award of damages was based upon his Honour's acceptance that the appellant had suffered whiplash type injuries which lasted for a period of no longer than 9 months after the accident. His Honour rejected that the appellant had suffered any psychiatric illness following the accident, and in particular rejected the appellant's case that he suffered post-traumatic stress disorder and depression.

3    The appellant appeals on three principal grounds. First, that his Honour was biased towards the appellant and should have disqualified himself from hearing the matter. Secondly, on the ground that his Honour wrongly rejected the appellant's medical evidence and made his own determination in relation to the appellant's psychiatric claim. This diagnosis was said to be by reference to a book known as DSM 4, the manual for psychiatric diagnosis published by the American Psychiatric Association and commonly used in Australia for identifying psychiatric disorders. Thirdly, on the ground that his Honour's findings, particularly in relation to the credit of the appellant and his witnesses "were based on too fragile a base and there [was] no real support for his finding that the witnesses were unreliable".

4    Before dealing with each of these grounds of appeal it is necessary to refer to some further history in the matter. The appellant had been involved in a serious motor vehicle accident in 1985, when he was about 8 years old. In that accident he suffered a severe head injury which resulted in a left hemiparesis. His father was also seriously injured in that accident. Proceedings were commenced seeking damages in respect of the injuries the appellant suffered in that accident. Those proceedings were not settled until 1994.

5    Shortly prior to settlement, the appellant's solicitors filed an amended Statement of Particulars of Injuries and Disabilities as required under Pt 33 r 8A of the District Court Rules 1973 (NSW). In that statement, the appellant alleged the following continuing disabilities:

"...

(k) The [appellant] has brain dysfunction causing intellectual impairment;

...

(o) The [appellant] has residual weakness in the left side of the body and marked shaking of the left hand especially with use and in particular when eating;

...

(u) The [appellant] has a tendency to anti-social behaviour with accompanying disobedience, irritability, disruptiveness and has threatened suicide on a number of occasions;

(v) The [appellant] continues to suffer from regular headaches especially with glare;

...

(x) The [appellant] suffers from impairment of memory and comprehension;

...

(z) The [appellant] has hyper-reflexia on the left side;

(aa) The [appellant] no has a tendency to be secretive and an un-communicate, oppositional and defiant;

(ab) The [appellant] is now irritable suffering sleep disturbance and exhibits rocking and head banging;

(ac) The [appellant] suffers from alienation from his peer group and exhibits general anti-social type behaviour;

...

(ak) Continual dragging of the left leg;

...

(ap) Intermittent jerks involving both arms and legs associated with twitches of the muscles at times;

...

(au) Gross embarrassment at obvious physical and mental impairment;

(av) Disturbed sleeping patterns;

(aw) Anxiety;

(ax) Depression;

(ay) Loss of confidence and self esteem."

6    Up to date medical reports were also obtained in the two or three years prior to the settlement. The last such report was that of Dr Voss dated 25 days before the settlement. The complaints made to various doctors during the course of those medical attendances were reflected in the Pt 33 statement. They included complaints of problems the appellant was experiencing as at the date of consultation.

7    It is now convenient to go to the issues raised on the appeal.

Bias Claim

8    It was submitted in written submissions that the behaviour of the trial judge during the hearing of the matter was such that it would lead a reasonable person sitting in the court to doubt that he was bringing an unbiased mind to his decision. This is a sufficient formulation of the rule for apprehended bias: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293. However, in oral submissions counsel for the appellant alleged actual bias. That is, there was bias in fact exhibited by his Honour and that affected his findings. Five incidents or circumstances are relied upon to establish this ground.

9    The first circumstance relied upon is that during the course of the evidence his Honour appeared to believe that the appellant was deliberately withholding a particular doctor's report. The report in question was one that Dr Durrell, the appellant's principal psychiatric witness and treating psychiatrist, had written to the appellant's general practitioner in the course of his treatment. The point taken on behalf of the appellant is that the report was not one addressed to the appellant's solicitor and was therefore not one which ought to be, or which reasonably would be expected to be tendered in the appellant's case at trial. The exchange between his Honour and the respondent's counsel was as follows:

"Q Let me read something from a report of Dr Anthony Durrell written to Dr Robinson dated 29 November 1996 ...

10    Before the relevant contents of that report could be put to the appellant, his Honour interrupted:

"It's not a report the [appellant] has favoured me with?"

11    It was not. The respondent's counsel then continued the cross-examination.

12    This cross-examination was part of a sustained attack on the appellant in which it was alleged that he was both manufacturing and exaggerating his symptoms.

13    When the respondent's counsel referred to this report, his Honour made a comment which indicated that he did not have it. He used a style of language familiar to lawyers. There is no evidence that his Honour said it in an overbearing, sarcastic or acerbic way. I do not see that any case has been made for bias on this point.

14    It was next submitted that his Honour's treatment of Dr Durrell itself exhibited bias. The complaint made is that his Honour "interrogated Dr Durrell, spoke over the top of his answers and did not treat him with respect due to any witness giving evidence in a court". I have read Dr Durrell's evidence. I see no indication of any of the matters of which complaint is made. Again there is no independent evidence that the transcript does not provide a fair reflection of the way in which the trial proceeded. Certainly his Honour asked questions. Most trial judges do and are entitled to do so. Certainly his Honour drew attention to a significant issue in the case, that is, whether according to the diagnostic guide provided in DSM 4, the relevant contents of which were introduced into evidence through the report of, amongst others, Dr Clarke, Dr Durrell had correctly diagnosed a post-traumatic stress disorder. His Honour's questions were legitimate and appropriate.

15    It is next claimed that his Honour made comments about Dr Chadwick, a psychologist retained on behalf of the respondent. Again the comment of which complaint is made occurred during the course of cross-examination, this time of Dr Durrell. That cross-examination was also intense, the respondent's counsel clearly challenging each aspect of the doctor's diagnosis in a variety of ways.

16    During the cross-examination counsel referred Dr Durrell to Dr Chadwick's report. Dr Durrell agreed that he had been shown the report and said:

"A I have flicked through Donna Chadwick's yeah, she's a clinical psychologist is that -

Q That's right, you've seen that report haven't you.

HIS HONOUR: A very experienced clinical psychologist."

17    Counsel commenced his next question and his Honour added a further comment, "and a very thorough one".

18    At the stage his Honour made those comments, the respondent's medical reports, including Dr Chadwick's had been tendered and had been read by his Honour. The comments made by his Honour were borne out by the contents of her report. Dr Chadwick's experience was set out on the front page of her report and the report was properly described as thorough - which would reflect upon her thoroughness. I do not see any problem with his Honour's remarks, nor do I see any indication that his Honour at that stage had pre-judged the matter.

19    Finally, his Honour's assessment of the appellant's credit and that of his mother and supporting witness is relied upon as demonstrating his bias. The whole of the evidence in this case demonstrates that, having regard to the case made to doctors and in the appellant's Pt 33 statement up until 1994, it was clearly open to his Honour to find that the case that the appellant sought to make at this trial was exaggerated.

20    I have dealt with each of these bases of claimed bias individually. None of them, in my opinion, amount to bias, but, even if they are aggregated and looked at on the basis that they indicated an atmosphere that pervaded the trial generally, I do not see that they demonstrate any bias as alleged.

Trial Judge Making his own Diagnosis

21    It is next submitted that it is apparent that his Honour made his own diagnosis of the injuries which the appellant could have suffered as a result of the accident. A number of complaints are made to support this ground. In written submissions it was alleged that his Honour had regard to DSM 4 which was not in evidence. That contention was not made on the hearing of the appeal.

22    It was submitted that his Honour made no reference to the various reports of Dr Roe, the psychiatric expert retained on behalf of the respondent. That is not correct.

23    It was next submitted that his Honour relied upon his own interpretation of DSM 4 and that his reliance on this textbook, rather than on the medical reports tendered in the case, was an error. Again, that case is not made out. I have already indicated that the relevant portion of DSM 4 was to be found in Dr Clarke's evidence and in other medical reports. Dr Clarke's report in particular was one of those tendered as part of the appellant's medical evidence at the commencement of the case. It was therefore before his Honour from the commencement of the trial. The particular issue which concerned his Honour was that any diagnosis for post-traumatic stress disorder was required to be based on certain criteria referred to in DSM 4, namely that:

"a) the person has been exposed to a traumatic event in which both of the following were present:

(1) The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others.

(2) The persons response involved intense fear, helplessness or horror."

24    These two criteria were required to be established if the appellant's claimed disability of post-traumatic stress disorder was to be made out. They clearly were not made out on the evidence. His Honour was correct to remark that this was a low speed accident. Admittedly, both cars were written off, but the appellant's response to it was not to seek medical treatment until the next day, and then in respect of neck and back pain. Indeed, according to his general practitioner, Dr Chiew, even up to twelve months after the accident the appellant was not complaining of psychiatric problems. To the extent that he was having difficulty coping, it related to his neck pain. Dr Chiew reported in his report of 1 October 1996:

"he has not consulted me since 10 January 1996. At the time, he had difficulty concluding his college assignments because of neck pain."

25    It is next submitted that:

"it is clear from a reading of Dr Durrell's evidence and his Honour's comments during the course of that evidence, that his Honour had formed his own view independent of the expert evidence".

26    This is not made out. His Honour made it clear that the particular matter in which he was interested was what evidence there was to establish the first two criteria outlined above. It is apparent from his Honour's questioning on this that considerable evidence had been given, both by way of medical reports and by Dr Durrell and this issue had not been touched upon. The matter was then raised by cross-examining counsel. It was clear from that cross-examination that Dr Durrell had never, in the course of his consultations with the appellant and for the purposes of diagnosis, turned his mind to that question. There was also a very live issue as to Dr Durrell's credibility and it is not surprising that his Honour found against his credit. Significant inroads were made into his evidence during the course of cross-examination. This is reflected, amongst other places, in his Honour's judgment when he referred to the fact that in none of Dr Durrell's patient notes over an 18 month period was there any reference to post-traumatic stress disorder. His Honour's questions were fair, reasonable and frankly understandable in all the circumstances.

27    It is finally submitted that his Honour does not appear to have given any reasons for failing to accept that the appellant suffered from a depression as a result of the motor vehicle accident. No "absence of reasons" point is taken in the notice of grounds of appeal. Having said that, his Honour's reasons on this point was as follows:

"Whilst I accept that it is possible that the [appellant] may from time to time have suffered from depression I am not prepared to accept that it has been in any way caused or aggravated by the motor vehicle accident of 11 August 1995."

28    Even if it could be argued that this statement should have been more detailed, it was clear from the evidence that the appellant had complained of depression up until 1994 and his Honour's conclusion is not surprising.

Findings on Credibility

29    It was submitted that, whilst recognising the full import of credit findings by a trial judge: see State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) & Ors [1999] HCA 3; (1999) 160 ALR 588, his Honour's findings were based on "too fragile a base [with] no real support for his finding that the witnesses were unreliable". The comments which I have already made in relation to the evidence leading up to the 1994 settlement are sufficient to dispose of this point.

30    I would dismiss the appeal with costs.

31    POWELL JA: I agree.

32    ROLFE AJA: I also agree. I wish to add, because of the seriousness of the allegations, that in my opinion there is no foundation for any of the allegations of bias and to add a reference to Galea v Galea (1990) 19 NSWLR 263.

LAST UPDATED: 28/03/2001