Patrick v Howorth [2003] NSWCA 18 (14 February 2003)

Last Updated: 17 February 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Patrick v Howorth [2003] NSWCA 18

FILE NUMBER(S):

40255 of 2000

HEARING DATE(S): 11/11/02

JUDGMENT DATE: 14/02/2003

PARTIES:

Albert Patrick

v

Victoria Howorth

JUDGMENT OF: Meagher JA Giles JA Hodgson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7038/99

LOWER COURT JUDICIAL OFFICER: Herron DCJ

COUNSEL:

A: In Person

R: C Charteris

SOLICITORS:

A: In Person

R: Creagh & Creagh Solicitors

CATCHWORDS:

Motor Vehicle Accident - trial judge's findings of fact - whether reversible by Court of Appeal - credit.

LEGISLATION CITED:

Pt 9 r 27 District Court Rules

Evidence Act ss 122, 126

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40255 of 2002

MEAGHER JA

GILES JA

HODGSON JA

Friday, 14 February 2003

ALBERT PATRICK v VICTORIA HOWORTH

FACTS

On 3 April 1998, the parties to this appeal were involved in a trivial motor vehicle accident, in which the respondent (the defendant below) drove her vehicle into the rear end of a vehicle driven by the appellant.

In his Statement of Claim, the appellant (the plaintiff below, who appeared unrepresented) alleged that he had sustained catastrophic injuries. The respondent admitted breach of duty of care, but strenuously disputed injury. The details of the appellant's claim, and the medical ramifications thereof, are set out in the judgments of Meagher and Hodgson JJA below.

N 15 February 2002, Herron DCJ entered a verdict and judgment for the respondent, and ordered that the appellant pay the respondent's costs of the proceedings, whereupon he appealed to the Court of Appeal. The grounds of appeal are set out in the judgment of Hodgson JA hereunder.

HELD per Meagher JA (Giles and Hodgson JJA agreeing)

i. The trial judge's acceptance of the defendant's medical evidence in general was a factual finding that could not be reversed by the Court of Appeal;

ii. Similarly, the trial judge's general findings that the plaintiff was a malingerer, that his claimed disabilities did not exist, that his behaviour was motivated solely for the purpose of financial gain, that the plaintiff had no honesty or reliability, that he could not have suffered his claimed injuries from the car accident, that the accident involved no more than his car receiving "a mere nudge", and that the defendant's account of the accident must be accepted were not factual findings that could be reversed by the Court of Appeal.

HELD per Hodgson JA (Giles JA agreeing)

i. The question for this Court is not whether this Court concludes on the material before it that the plaintiff sought to make out a fraudulent case. The question before this Court is whether the primary judge's decision shows appealable error or whether the plaintiff has otherwise not had a fair trial.

ii. There was no appealable error to be discerned in the reasons for judgment of Herron DCJ, and no ground for concluding that the plaintiff did not have a fair trial.

ORDERS

That the appeal be dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40255 of 2002

MEAGHER JA

GILES JA

HODGSON JA

Friday, 14 February 2003

ALBERT PATRICK v VICTORIA HOWORTH

Judgment

1 MEAGHER JA: This is an appeal by a disappointed plaintiff, Mr Patrick, against a verdict for the defendant, Mrs Howorth, awarded by his Honour Judge Heron in the District Court. It represents the culmination of fraudulent litigation by the plaintiff of a kind which, fortunately, rarely occurs in this State.

2 The plaintiff alleged that he had sustained catastrophic injuries in a trivial rear-end motor vehicle accident at Forestville on 3 April 1998. Breach of duty of care was admitted, but injury was strenuously disputed. It is conceded by the defendant that she drove her vehicle into the rear of the plaintiff's vehicle.

3 His evidence was that the impact was forceful and caused his head to strike the steering wheel, and that it forced his car to move forward. Her evidence was that she "was coming to a stop" when she hit the plaintiff's vehicle, and only gave it a "slight nudge". She said the plaintiff's car did not move forward. She looked for, but could not see, any damage to either vehicle. The police confirmed the absence of damage.

4 His Honour believed her and not him. In my view, that should be the end of the matter.

5 However, it was not the end of the matter, and his Honour set about analysing all the evidence. The case occupied his attention for some four weeks between 23 July 2001 and 21 August 2001, and again (after a last-minute reopening) on 29, 30 and 31 January 2002 and 1 February 2002, judgment being handed down on 15 February 2002.

6 The case was not heard alone. Together with it there was heard another action in which Mr Patrick was also plaintiff in relation to a fence which fell on him on 10 September 1997. On the fourth day of the hearing, this latter action was settled in Mr Patrick's favour for $900,000 inclusive of costs.

7 The plaintiff alleged that in the motor vehicle accident he sustained a spinal cord injury at the C5/6 level of the cervical spine causing tetraplegia (partial paralysis of all four limbs). His statement of particulars under Part 9 (Red Book, p9) detailed a claim for total loss of earning capacity, 24-hour per day/7-days per week gratuitous past care and future commercial care at a similar rate. Damages for provision of electric and manual wheelchairs were claimed, together with the cost of structural alterations to the plaintiff's home to accommodate his wheelchair needs. A claim for a modified large vehicle capable of taking a wheelchair was also particularised. At the end of the trial, the plaintiff sought damages in excess of $2.5M plus costs in a schedule that was handed to the Court.

8 The plaintiff gave evidence from a wheelchair wearing a hard cervical collar. Amongst many disabilities he alleged:

i. Loss of 90% of strength of the right hand and/or right arm (T89, T369);

ii. Pins and needles into the fingers of his left hand;

iii. Loss of 80% of strength of his left let (T92-3, T194);

iv. Loss of 20%-25% of use of his right leg (T93, T194);

v. "constant stabbing pain" in the neck;

vi. incontinence requiring catheterisation.

9 The plaintiff alleged that for the first year after the motor vehicle accident he was "hanging on to the walls and walking about with assistance" (T192, T339). By Easter 1999 he was consistently relying on a walking stick. One year later (April 2000) he commenced to use the wheelchair (T339).

10 It was the plaintiff's evidence at trial that he could not get out of his wheelchair alone, even with the assistance of a cane (T196). When waking in the morning his wife brought him clothing and helped him dress. He then moved into the wheelchair (T199). The plaintiff testified that he required 24-hour/7-day per week domestic assistance (T336, 544). He agreed that he always presents himself in public as disabled (T364). He stated: `If I didn't suffer loss of strength and power in my legs, I would be able to walk around without the wheelchair.' (T193). At T373, he alleged: `I'm in a wheelchair because I cannot walk on my own...'. His wife's care included putting toothpaste upon the brush because `I can't stand up and go to the basin.' (T548). In answer to the Trial Judge's question (T549.1), the plaintiff testified that he could not stand up for even a short while `because I fall ... my legs can't support me'. He described getting into a car as "a manoeuvre that takes some time, but we have to do it otherwise I stay at home all day' (T96). As regards the cervical collar, he stated that if he doesn't wear the collar his head `will lean over to the right and I will be carrying it over my shoulder' (T371.35)."

11 As one might expect from a case involving such a multiplicity of claimed injuries, a more than usually large number of doctors were engaged on both sides. Those who gave evidence on behalf of the plaintiff included Dr Corbett (a neurologist), Dr Bleasel (a neurosurgeon), Dr Stening (an urologist) and Dr Klug (a psychiatrist). In this regard, it should be observed that these doctors displayed a lack or enthusiasm in championing the plaintiff's case: each of them conceded he could not rule out the possibility of fabrication. Moreover, not each of them adhered to his original diagnosis. Dr Bleasel is a conspicuous example of this. In a report of 26 June 2001 he diagnosed the plaintiff as suffering from myelomalacia (the death or softening of the spinal cord) due to spinal cord injury. In the witness box, without any amendment to his reports and without notice to the defendant, Dr Bleasel apparently changed his mind and proclaimed that the plaintiff was not suffering from myelomalacia.

12 To support the defendant's case, an equal number of doctors gave evidence. They included Dr Connelly (neurosurgeon), Dr Ireland (orthopaedic surgeon), Dr Milton (psychiatrist), Dr Mellick (neurologist), Dr Golovsky (urologist) and Dr Wines (urologist). Each of them testified that in his view there was nothing medically to support a diagnosis of spinal cord injury. Some (e.g. Dr Milton) testified explicitly that the plaintiff was a malingerer, the others doing so implicitly.

13 Amongst the medical witnesses called by the defendant was a Dr Schnier, a highly qualified specialist radiologist. He said that myelomalacia was always detected on an MRI scan; and, since the plaintiff had no less than three such scans, and no evidence of myelomalacia appeared on any of them, he could be certain that the plaintiff did not suffer from that condition.

14 His Honour accepted the evidence of Dr Schnier, as he was entitled to. He also, in general, accepted the defendant's medical evidence rather than the plaintiff's. There is no way we can reverse his Honour's findings in this regard, even if we were minded to; and that, notwithstanding sixteen pages of the plaintiff's submissions to us.

15 When the case was re-opened on 29 January 2002 the Court was shown a video film taken by one Daniel John. It was a film of the plaintiff and his wife walking in the street, driving their motorcar, and doing their shopping. Although he had a walking stick with him, he did not use it for support. He managed to enter and leave his motorcar without restriction. When shopping, he was shown to have lifted various items with his allegedly 80% disabled right arm. He, on occasions, went onto his haunches to examine merchandise at floor level. At no time was a wheelchair or cervical collar used, nor was either item seen to be present.

16 The defendant's doctors opined that the video reinforced the views which they had already expressed. The plaintiff did not call any further evidence, nor - which is of greater significance - did he recall Dr Bleasel or Dr Corbett or Dr Stening or Dr Klug.

17 In the end, his Honour expressed, in most trenchant language, views entirely adverse to the appellant. He found that he was a malingerer, that his claimed disabilities did not exist, that his behaviour was motivated solely for the purpose of financial gain, that the plaintiff had no honesty or reliability, that he could not have suffered his claimed injuries from the car accident, that the accident involved no more than his car receiving "a mere nudge", and that the defendant's account of the accident must be accepted.

18 We could hardly reverse these findings, or any of them, even in the unlikely event that we wished to.

19 The appeal should be dismissed with costs.

20 GILES JA: I have had the advantage of reading the reasons of Hodgson JA in draft. For the reasons his Honour gives, which I am respectfully content to adopt as my own, I consider that the appeal should be dismissed with costs.

21 HODGSON JA: The appellant Albert Patrick sued the respondent Victoria Howorth in the District Court claiming damages for injuries allegedly suffered in a motor vehicle accident which occurred on 3 April 1998. The respondent admitted she was in breach of a duty of care owed to the appellant, but denied that the appellant suffered any injury from that breach of duty. On 15 February 2002 Herron DCJ gave a verdict and judgment for the respondent and ordered the appellant to pay the respondent's costs of the proceedings. The appellant appeals to this Court from that decision.

CIRCUMSTANCES

22 The appellant was born in Argentina in 1959. He was awarded a Diploma of Electrical Engineering in 1979, and he married in July 1982.

23 In August 1982 the appellant and his wife emigrated to Australia. He obtained employment early in 1984, and remained in employment until 1998.

24 In August 1996 he suffered strain to his left shoulder when anti-fouling his yacht.

25 On 10 September 1997 he was struck by a falling fence at Darling Harbour, causing injury to his back and right hand.

26 He sought treatment from a chiropractor and from his general practitioner.

27 On 5 December 1997 he was retrenched from his employment with Leighton Contractors. On 12 January 1998 he commenced work with Bassett Engineering.

28 On 30 March 1998 he saw a psychiatrist Dr. Klug for a medico-legal assessment in relation to his September 1997 accident.

29 On 2 April 1998 he attended his GP Dr. La Vere at Alphega Medical Practice, complaining of back pain from the accident of 10 September 1997. He was given a medical certificate certifying that he was unfit for work on 2 and 3 April due to muscle pain.

30 On 3 April 1998 he drove with his wife to his GP, where he asked for sleeping tablets. On the way back, he was involved in the motor vehicle accident the subject of these proceedings at the intersection of Currie Road and Warringah Road, Forestville. The motor vehicle driven by the appellant was struck from behind by a motor vehicle driven by the respondent. There was a dispute in the proceedings as to the force of the impact.

31 The appellant was taken by ambulance to Royal North Shore Hospital. According to a letter of that day from Dr. Leydon of that hospital to Dr. Sabag, a general practitioner, the appellant presented "with an exacerbation of cervical spine, thoracic spine injury (incurred at a work site 6/12) after a minor `whiplash' trauma incurred this afternoon". The letter reported a constellation of neurological symptoms and a past medical history of chronic neck pain and neurological symptoms.

32 On 5 April 1998 the appellant attended Alphega Medical Practice, and saw Dr. Austin, complaining inter alia of severe neck pain. On 6 April 1998 the appellant attended Dr. Sabag who gave a medical certificate on that day under Work Cover that the appellant was unfit for work from 6 April to 10 April. The date of injury as stated by the patient was noted as 10 September 1997, and the cause of injury as stated by the patient was noted as "work related". The diagnosis quoted was "upper dorsal-cervical spine injury".

33 Dr. Sabag referred the appellant for a CT scan of his cervical spine on 8 April 1998. This showed a C6/7 right postero-lateral disc herniation, associated with postero-lateral oesteophyte formation, encroaching on the intervertebral foramen on the right side. The report noted disc herniation minimally compressing the cervical cord anterolaterally on the right side.

34 In ensuing months, the appellant sought treatment from a number of specialists, including specialists in neurosurgery, orthopaedics, neurology and urology. He has not worked since the motor accident.

35 In about April 1999, the appellant and his wife sold their home in Forestville, Sydney and moved to the Gold Coast.

36 The appellant commenced proceedings against the respondent in the District Court in September 1999. In the Statement of Particulars pursuant to Pt.9 r.27 of the District Court rules, as amended on 21 June 2001, the appellant made the following claims of injury and disability:

1. Particulars Of Injuries

(i) Concussive head injury.

(ii) Injury to the neck with resultant incomplete tetrapleagia at the level of the C5/C6 cervical segments.

(iii) Injury to the thoracic spine.

(iv) Injury to the lower back.

(v) Severe shock.

2. Particulars of Continuing Disabilities

Spine

(i) Severe pain, discomfort and restriction of movement of the neck.

(ii) Reduced flexibility of the neck.

(iii) Radiating pain from the neck into both shoulders.

(iv) Neck movements cause dizziness and nausea.

(v) Need to wear a hard cervical collar.

(vi) C6/7 posteri-central right disc protrusion deforming the interior aspect of the thecal sac.

(vii) L3/4, L4/5 and L5/S1 disc bulges.

(viii) L5/S1 disc space is moderately narrowed.

(ix) Severe pain, discomfort and restriction of movement of the back.

(x) Difficulty bending, lifting, carrying and tasks requiring the use of the back.

Upper limbs

(xi) Impaired feeling in the upper limbs.

(xii) Numbness in the index finger of the fight hand which radiates into the wrist and palm of the right hand.

(xiii) Numbness in the right thumb.

(xiv) Numbness in the right middle finger.

(xv) Reduced strength and dexterity in the right arm and hand (right hand dominant).

(xvi) Weakness of grip in the right hand.

(xvii) Weakness and tingling in the fourth and fifth fingers of the left hand.

(xviii) A tendency to drop things.

(xix) Weakness in the left hand.

(xx) Decreased sensation in the right elbow.

Lower limbs

(xxi) Severe pain and discomfort in the left and right legs.

(xxii) Weakness in the left and right legs.

(xxiii) Sharp and stabbing type pain in the left and right feet.

(xxiv) Loss of voluntary motor power in the left and right legs.

Mobility

(xxiv) Necessity to use a wheelchair for mobility on a regular basis.

(xxv) Inability to traverse stairs or rough or uneven ground.

(xxvi) Difficulty with walking for any periods.

(xxvii) Difficulty with standing for long periods.

(xxviii) Impaired balance.

(xxix) Lack of mobility and agility.

(xxx) Difficulty maintaining or controlling posture.

(xxxi) Increase in pain when sitting for long periods.

Urinary/bowel

(xxxii) Intermittent constipation and diarrhoea.

(xxxiii) inability to control the bladder.

(xxxiv) Inability to control the bowel.

(xxxv) Intermittent self catheterisation 4-5 times a day with disposal catheters.

(xxxvi) Susceptibility to urinary tract infections.

(xxxvii) Requirement to use suppositories for bowel evacuation.

(xxxviii) Requirement to wear nappies at night and pads during the day for incontinence, faecal and urinary.

(xxxix) Frequent soiling due to bowel looseness.

(xl) Neuropathic bladder disorder.

Sexual

(xli) Loss of libido.

(xiii) Inability to sustain and maintain an erection.

(xliii) Intermittent involuntary erections.

(xliv) Inability to ejaculate.

(xlv) Loss of sexual relationship with his wife.

(xlvi) Impotency.

Psychological

(xlvii) Emotional lability.

(xlviii) Anxiety.

(xlix) Major depressive symptoms.

(l) Impaired concentration.

(li) Reduced self esteem.

(Iii) Severe headaches.

(Iiii) Frustration.

(liv) Tearfulness.

(lv) Suicidal tendencies.

(Ivi) Irritability.

(Ivii) Panic attacks when travelling in a motor vehicle.

(Iviii) Social isolation.

(Iix) Embarrassment due to injuries.

(lx) Humiliation.

(lxi) Impaired short term memory.

(Ixii) Reduced self confidence.

(Ixiii) Adjustment disorder.

(Ixiv) Psychogenic pain disorder.

(Ixv) Post-traumatic stress disorder.

Other

(lxvi) Requirement to undergo surgery.

(lxvii) Requirement for assistance with transfers.

(lxviii) Reduced ability to control body temperature.

(lxix) Reduced tolerance to heat.

(Ixx) Requirement to undergo extensive, physiotherapy.

(Ixxi) Easily fatigued.

(Ixxii) Requirement for assistance in most aspects of daily living including showering, dressing, tying shoelaces etc.

(Ixxiii) Requirement for assistance with self catheterisation because of the numbness in the right hand.

(Ixxiv) Inability to carry out any heavy domestic tasks.

(Ixxv) Inability to carry out any tasks around the house such as minor repair jobs, gardening, lawn mowing, cleaning the pool etc.

(Ixxvi) Inability to return to pre-accident employment.

(Ixxvii) Unfitness for any form of employment.

(Ixxviii) Impaired sleep due to pain.

(Ixxix) Insomnia.

(Ixxx) Severe restrictions in recreational, social and sporting activities such as tennis, sailing, dancing etc.

(Ixxxi) Pain when sitting at a desk.

(lxxxii) Avoidance behaviour.

(Ixxxiii) Significant weight loss.

(Ixxxiv) Feelings of pessimism.

(Ixxxv) Pre-occupation with security.

(Ixxxvi) Susceptibility to further injury.

(Ixxxvii) Specific phobia of excavation sites.

(Ixxxviii) Need for the plaintiff and his family to sell their Sydney home and relocate to Queensland.

(Ixxxix) Unable to drive a motor vehicle.

37 He claimed about $370,000.00 for future medical expenses, and about $1,300,000.00 for economic loss. He made the following claims in respect of personal care:

8. Particulars of Claim for Past Gratuitous Care

The plaintiff has received significant and substantial care on a gratuitous basis from his wife Gladys.

She is on call 24 hours per day, 7 days per week.

His wife provides attendant care including the following:

(i) Driving him to and from appointments and medical treatment.

(ii) Assistance with transfers.

(iii) Assistance with personal care.

(iv) Assistance with showering/bathing.

(v) Assistance with dressing and undressing.

(vi) Assistance with grooming.

(vii) Preparation of meals.

(viii) Cutting up food.

(ix) Shopping.

(x) Running errands, doing banking/postage etc.

(xi) Performing household domestic duties including vacuuming, ironing, washing, making beds, changing bed linen, cleaning bathroom etc.

(xii) Assisting with bowel accidents, enemas, assistance with catheterisation.

Estimated hours of gratuitous care provided by Gladys Patrick is 24 hours per day, 7 days per week. At say $20.00 per hour from 3 April 1998 to date (14 September) (127.3 weeks) i.e. $3,360.00 per week x 127.3 weeks $427,728.00

9. Particulars of Claim for Future Care

The plaintiff will continue to require assistance in most aspects of daily living for the rest of his life.

It would be inappropriate and unreasonable to expect the plaintiff's wife Gladys to fulfil the role of primary care provider in the future.

Those providing the attendant care will need the personal qualities, experience and training to be responsible for, inter alia, the following:

(i) Co-ordination of the plaintiff's daily/weekly therapy and rehabilitation programme.

(ii) Some supervision.

(iii) Domestic, nursing and attendant care.

(iv) Personal care.

(v) Companionship.

(vi) Transport.

The plaintiff will require at least 4 hours of personal care daily for the rest of his life to provide assistance with transferring, bladder maintenance and with bowel care.

The plaintiff will require a live-in carer/housekeeper for the rest of his life.

Accordingly, the plaintiff claims the cost of care for the remainder of his life on the following bases:

Future paid live-in domestic assistance

(i) A live-in carer/housekeeper to be provided for 4 days per month to provide some respite for Mrs Patrick.

(ii) A live-in carer/housekeeper to be provided for 2 weeks per annum.

(iii) A live-in carer/housekeeper to be provided on a full-time basis if and when required.

(iv) A gardener/handyman be provided for 2 hours per week.

The plaintiff relies on the recommendations and costing of the Independent Living Services Pty Limited dated the 24th April 1999 and the report of Costing and Assessing Injury Management Services dated the 20th June 2001, in respect of these needs.

38 The report referred to there quantified the appellant's needs for personal care at about $2,500.00 per week. The calculation over the appellant's expected lifetime was not supplied, but it would amount to something in excess of $3 million.

39 In these amended particulars, the appellant claimed about $80,000.00 in respect of special equipment, including a manual wheelchair and an electric wheelchair; about $170,000.00 in respect of computers; $400,000.00 as loss of capital appreciation on his Forestville home plus the costs of home modification; an specified amount for additional holiday expenses; and about $250,000.00 in respect of future transport expenses.

40 The action came on for hearing before the primary judge on 23 July 2001, together with an action by the appellant in respect of his earlier accident on 10 September 1997. That action in respect of the earlier accident was settled on 26 July 2001 for $900,000.00 plus costs. The trial of these proceedings proceeded between 23 July 2001 and 21 August 2001, and judgment was reserved. On 28 September 2001, a video was taken of the appellant in a Gold Coast shopping centre, and the respondent applied to re-open its case. A further hearing took place between 29 January 2002 and 1 February 2002, and judgment was given on 15 February 2002.

PROCEEDINGS AT FIRST INSTANCE

41 The appellant gave evidence of a very severe impact having occurred in the accident. He produced an invoice dated 15 April 1998 from Forestville Auto Body Repairs for repairs to the vehicle he was driving, for $411.53 being $71.27 for parts (rear bumper clips) and $340.26 for labour. The appellant's wife gave evidence that there was a strong impact in the accident, but said that when she looked at the cars for damage after the accident she could not see a dent in either car. However, she said that on the next day, her attention was drawn by the appellant to the rear bumper bar being about 7-8mm out of alignment (T685) and to a line of paint from the other car about 2cm long (T688).

42 The respondent gave evidence that the contact in the accident was a mere nudge, and that she saw no damage to either vehicle. Two policemen who attended the scene of the accident, Constable Reen and Constable Bakker, gave evidence that they looked for damage to the vehicles and saw no damage to either vehicle.

43 The appellant gave evidence of very serious pain and disability since the accident. He was supported by a number of doctors, who were of opinion that the appellant had suffered cervical spinal cord injury, causing serious pain, loss of control over his limbs (especially his right arm and left leg) and bladder dysfunction.

44 Medical evidence called for the respondent was in general terms against the existence of spinal cord injury from the accident and bladder dysfunction. The respondent also relied on evidence from a neighbour of the appellant who said that in about February 2000 he saw the appellant in the garden of his house walking normally; and on the video film taken in September 2001.

45 The primary judge accepted the evidence of the respondent that it was a small accident, and that the contact between the vehicles was minimal amounting to a mere nudge. He concluded that the appellant was a malingerer, fraudulently claiming that he was incapacitated by reason of a number of claimed disabilities which in reality were non-existent, and doing so solely for the purpose of financial gain. The primary judge concluded:

Even if the plaintiff suffered an injury in the accident, a matter concerning which I doubt, such injury must only have been slight. It could only have amounted to any existing condition being temporarily affected. His movement in the front seat of the vehicle immediately after the collision, in my view, illustrates this. The plaintiff therefore has not established any injury in support of which compensation might have been awarded to him under the Motor Accidents Act under s.79 of that Act or otherwise. The plaintiff has not established any economic loss arising from the accident including out of pocket expenses.

GROUNDS OF APPEAL

46 The appellant relied on the following grounds of appeal:

Grounds of appeal:

I. That His Honour's judgement dated 15 February 2002 was affected by bias, prejudice, and racial prejudice and was against the principles enunciated in The Racial Discrimination Act 1975, and The Discrimination Act 1991, and the Evidence Act.

2. That the respondents obtained a verdict against the appellant based on fraud. That the defendants committed an act of fraud introducing a false witness into the proceedings, briefing witnesses on the evidence they were to give before the court, suppressing a witness to the accident, biasing doctors against the appellant by briefing them in subjects other than the accident or medical matters, obtaining information using illegal means, and misrepresenting the meaning of the medical evidence.

3. That the trial miscarried because His Honour made fatal errors of judgement based on the errors contained in the transcript. That was an error of Law, being a failure to keep proper records of the proceedings.

4. That Its Honour erred by ruling that the video submitted to the court was "continuous" (The ruling was uncalled for by either party). That was an error of procedure and/or an error of law, being failure to give recognition to of the Evidence Act.

5. His Honour did not set out his reasons for reaching the view that he did not believe the appellant.

That His Honour erred in finding the appellant was caught "red handed" or doing anything wrong in September 28, 2001 and shown on the video.

And/or in the alternative that His Honour erred in failing to give any or any proper weight to the fact the appellant was doing in the September 28 video exactly what his physicians had asked him to do.

And/or in the alternative that His Honour made a judgement error in correlating the evidence obtained by the respondent's investigators on 28 September 2001 with the earlier presentation of the appellant in court on 23 July 2001. That was an error of law, being failure to give recognition to of the Evidence Act.

6. That his Honour erred in letting the respondents know, wether directly or indirectly His Honour would be making a finding against the appellant on 29th January 2002, four days before all evidence on the trial was heard. And, That His honour erred in carrying out the proceedings for three days after 29th January 2002, the day His Honour had indicated the respondents His Honour had made a finding against the appellant.

7. That His Honour erred in allowing Dr Mellick's report and/or testimony in a previous matter to be presented as evidence on the proceedings. That was an error of law, being an error to follow proper court orders and procedures.

In addition or in the alternative, His Honour by allowing the submission of Dr Mellick's incomplete reports that did not address the issues brought up in court latter during Dr Mellick's testimony denied the appellant the right to defend Dr Mellick findings. His Honour allowed the defendants to ambush the appellant and denied the appellant natural justice

8. That His Honour gave improper weight to the report of Pamela Johnson that was obtained by the appellant's previous solicitors but submitted by the respondents. That was an error of law, being failure to give recognition to of (sic) the Evidence Act.

9. That His Honour erred in reopening the procedures in January 2002.That was an error of law.

10. That His Honour erred in preferring the explanation of Mr Charteris, counsel for the respondent about the severity of the impact over the evidence and the testimony of any or all of the five witnesses at the scene, and substantial wrong or miscarriage occurred.

11. That his Honour misunderstood the medical evidence, That the defendant's doctors did not take into account. the hard evidence of spinal damage contained in the SSEP. That His Honour gave improper weight to the medical reports and medical evidence of doctors.

47 The appellant was unrepresented on the appeal. At the hearing of the appeal, he sought to add a twelfth ground, that he did not have adequate legal representation at the trial.

48 Ultimately, the appellant did not press grounds 6 and 9, and relied principally on the combination of grounds 1 and 11.

49 The appellant's written submissions in reply dealt in some detail with what the appellant claimed to be a misrepresentation of his case and of the evidence in the written submissions of the respondent, and it is convenient to deal first briefly with this matter. Then I will consider each of the appeal grounds in turn, and I will finally consider whether the appellant has made out a case on some combination of grounds, and in particular the combination of grounds 1 and 11.

ALLEGED MISREPRESENTATIONS OF EVIDENCE

50 The appellant referred to nine "transformations" of evidence by the respondent's Counsel Mr. Charteris SC in the written submissions.

51 First, he referred to a submission that the appellant's "evidence at the trial was that he could not get out of his wheelchair alone even with the assistance of a cane", and submitted that the evidence referred to at T196 was in fact the opposite. However, following the passage quoted by the appellant in his submissions, there appears the following:

Q. What about with the cane? You can get out of your wheelchair and take a few paces with the cane, can't you?

A. With the cane on my own? No.

Q. You can't?

A. No, I can't.

Q. Not at all?

A. No. I need to hold on to something, because I told you - I told you earlier on, I have balance problems, and I have problems with the position of my leg.

Q. Even with 80 per cent strength in one leg, as you've described it, and 20 per cent in the other leg, you say you can't get out of that wheelchair with a cane?

A. Well, my goodness, you're a lawyer, why don't you get a doctor to talk about these things?

Q. Why don't you just answer the question, Mr Patrick?

HIS HONOUR: You can put it a bit more-

WITNESS: You just keep pressing the same thing. What do you want me to do?

CAVANAGH: Q. What I want you to do is answer the question, Mr Patrick. Are you saying you cannot get out of that chair even with a cane?

LEATHERBARROW: Three times I think he's answered that.

CAVANAGH: Yes, well, I want him to say it again.

WITNESS: Okay, for the probably fourth time, I cannot.

52 In my opinion, this extract does justify the respondent's submission.

53 Second, the appellant referred to a submission that the appellant's case was that "When waking in the morning his wife brought him clothing and then helped him dress. He then moved into the wheelchair". At T199, the following appears:

Q. So the position is, Mr. Patrick, from the moment you wake up, you're able to get into your wheelchair. Is that right? You're able to move around the house. Is that right?

A. No, I'm not - the position is, I wake up, I call my wife. My wife brings my clothing, she helps me undress. Then I move into my wheelchair. Then I go into the breakfast area; my wife prepares breakfast; I have breakfast.

54 The reference to "undress" in that passage is probably a mistake for "dress"; and again this passage justifies the respondent's submission.

55 Third, the appellant referred to a submission that the appellant testified that he required 24-hour 7-day per week domestic assistance. At T366, one of the pages referred to by the respondent, there appears the following:

Q. Indeed you are claiming before his Honour that included in your damages should be care for 24 hours a day. Is that right?

A. Yes.

Q. Since the date of the accident?

A. Yes.

Q. You were requiring 24-hour care, were you?

A. Yes.

Q. You say your wife kept working for six months or so after the accident, did she?

A. Yes.

Q. Who was delivering the 24-hour a day care to you?

A. My mother-in-law moved in with us for the first six months until my wife gave up work.

Q. You understand that in the claim before his Honour you claim compensation of about $470,000 just for the past domestic assistance by your mother-in-law and your wife. Is that right?

A. I didn't prepare the claim but I've seen that figure.

Q. After the accident you were walking, weren't you?

A. Was walking.

Q. There was no pain, was there, Mr Patrick, not for quite a long time?

A. But I wasn't leaving home. I wasn't even going to corner. I wasn't driving. I was inside the house laying flat on the floor almost 24 hours a day for weeks.

56 At T545 (the page after that referred to by the respondent) there appears the following:

HIS HONOUR: Q. First of all, it's put to you that you told Dr. Corbett that you required 24 hour a day care.

A. That's what I have right now, and that what I believe I need.

57 Again, the respondent's submission is justified.

58 Fourth, the appellant referred to the submission that the appellant "agreed he always presents himself in public as disabled"; and referred to his reply when this proposition was put to him, namely "I present myself the way I am". The respondent's submission is therefore not literally accurate; but the plain implication of the appellant's answer was that he was disabled and presented himself that way accordingly; so that there was no substantial error in the respondent's submission.

59 The appellant's fifth complaint was to the effect that the appellant had not stated what the respondent's submissions asserted he had stated, but had merely answered "That's probably right" when the matter was put to him. Again, this complaint has no substance.

60 The other four complaints are similarly without substance. The appellant also complained that the respondent attempted to deceive the Court by suggesting that the appellant claimed he suffered tetraplegia. However, it will have been seen that the appellant claimed "incomplete tetraplegia" in his particulars of injury.

GROUND 1: ALLEGED BIAS

61 In his written submissions, the appellant referred to 26 items or instances which he claimed were indicative of bias in the primary judge, including alleged racism, preoccupation with the appellant's personal life and offensive comments concerning the appellant's wife.

62 I have carefully considered all the items and I do not consider that either individually or in combination they show bias by the primary judge. Some of the comments of the primary judge could perhaps have been better expressed; but the primary judge like many judges was plainly seeking to maintain a congenial atmosphere in the Court, occasionally using informality and humour. This can sometimes been seen by litigants involved in cases of pivotal importance to them as suggesting that the judge is not approaching the case was appropriate seriousness or even that the judge is not treating them with appropriate respect and impartiality. However, in my opinion when one reads all the relevant passages complained of, in their context, and when one reads the primary judge's judgment in full, it is plain that the primary judge did approach the case with an impartial, unbiased, fair and independent mind.

63 One matter deserves specific reference. During cross-examination of the appellant's wife concerning expenditure of a sum of $1,900.00 at a service provider called Gallery, the primary judge commented "whether it's an art gallery or presumably or it may be a shooting gallery". The appellant complains that this confirmed the primary judge was treating the appellant as a drug addict and that the judge behaved shamefully towards the appellant's wife. I note that the only meaning of shooting gallery in the Macquarie Dictionary is "a place, usually indoors, equipped with targets, used to practice shooting"; but I note as well that the expression is also used as referring to places where illegal drugs are injected. I believe that the primary judge was using the words with the former meaning and not with any suggestion that the appellant's wife was involved with drugs, and that in any event no disrespect was intended.

GROUND 2: ALLEGED IMPROPRIETY CONCERNING WITNESSES

64 The appellant relied on a number of items, which I will deal with in turn.

65 First, he submitted that the respondent misled the primary judge by claiming that the neighbour Mr. Rodda, who gave evidence of seeing the appellant walk unaided, was an independent witness; whereas he was in fact a close acquaintance of the appellant's ex-landlord who had, just before the trial, lost a court case against the appellant; and that the respondent sought to conceal this from the primary judge by never referring to this ex-landlord by her full name.

66 However, the respondent led evidence from Mr. Rodda that he met the appellant when doing a favour for "the owner of the premises" into which the appellant was moving, which would readily have identified the person in question to the appellant; so there is no basis for a submission that the respondent sought to conceal from the appellant that Mr. Rodda was acquainted with his ex-landlord to the extent of doing a favour for her. In those circumstance, there is no basis for the submission that the respondent set out to mislead the Court. Had the appellant believed this relationship with his ex-landlord was sufficient to make Mr. Rodda less than independent, he could have raised this before the primary judge.

67 Second, the appellant submitted that Mr. Charteris must have had improper access to a confidential file of Dr. Bleasel, who gave expert evidence for the appellant.

68 In my opinion, the passages referred to by the appellant strongly suggest that Mr. Charteris had access to this file before it was produced to him in Court. However, since Dr. Bleasel was giving evidence for the appellant, the respondent was entitled to access to documents in his file relevant to his testimony, and it would not be unusual for a party calling a doctor in those circumstances to provide access to documents of that kind in advance of the hearing. I do not think the material relied on by the appellant suggests that such access as Mr. Charteris may have had to the documents prior to the hearing was improper.

69 Third, the appellant suggests impropriety in the briefing of Constables Reen and Bakker, particularly on the basis that they claimed to recall the accident because there was such a large compensation claim coming out of such a minor accident, and on the basis of alleged unsatisfactory aspects of their evidence. The appellant submitted that their evidence must have been based on improper briefing, was glaringly improbable, and was fraudulent.

70 In fact, the primary judge accepted that the constables' evidence could be unreliable by reason of the lapse of time between the event and Constable Reen preparing his statement (18 months later); and it seems clear that the constables would not have known before then that there was a large claim being made. However, in circumstances where the appellant's wife saw no damage to either vehicle at the time of the accident, and saw only a displacement of 7-8mm of the rear bumper bar on closer examination the next day, the evidence of the constables was hardly controversial. There is in my opinion no basis for the suggestion that their evidence was based on improper briefing, or was glaringly improbable, much less that it was fraudulent. The extravagance of the submissions in this regard reflect badly on the appellant.

71 Fourth, the appellant submitted that the primary judge did not properly assess the evidence of the respondent. There is an independent ground, namely ground 10, relating to the evidence of the respondent, and I will deal with that matter then.

72 Fifth, the appellant submitted that there was impropriety in briefing various doctors. There is in my opinion no substance in this submission.

73 Sixth, the appellant submitted that the respondent concealed from the primary judge the circumstance that investigators had taken four videos of the appellant prior to the trial. However, the appellant did not refer to any material which in my opinion suggests any misleading of the primary judge in this regard; and there was no obligation on the respondent to tender such videos or to make them available to the appellant.

GROUND 3: ERRORS IN THE TRANSCRIPT

74 The appellant referred to one instance where the word "swaying" appeared instead of "swelling". That error was plainly immaterial. The appellant also claimed that there was an erroneous amendment to the transcript made so as to attribute to his Counsel something that had actually been said by Mr. Charteris. However, there is no reason to question the view of the appellant's Counsel at the trial, as well as that of the primary judge and Mr. Charteris, that it was the appellant's Counsel who had said the words in question.

GROUND 4: RULING THAT VIDEO WAS CONTINUOUS

75 The appellant submitted that the primary judge plainly erred in ruling that a video taken in September 2001 was continuous, particularly in relation to a place where the time clock showed 17 seconds was missing. He also submitted that the primary judge erred in admitting into evidence a copy video tape which had been compiled from originals taken by investigators.

76 I have viewed the video tape put into evidence. At the point where 17 seconds is missing, there is a plain discontinuity, which was pointed out. In my opinion, in his reference immediately afterwards to a continuous event, the primary judge was talking about a continuous record in relation to a time prior to this discontinuity when the appellant was "delving" into a lower shelf. In my opinion, no error is shown on that matter. Furthermore, although it was a copy video tape that was made an exhibit, the transcript indicates that what was actually shown at the trial were the original cassette tapes: see T1973P-W (at which time the shorter tape of the car departure taken by a second investigator was not available) and T1983G-P (when this second shorter tape had become available and was shown). There is reference at T1986 to a tape 21 that was missing, but that appears to be an intermediate tape between the original cassette tapes and to the compilation that was admitted into evidence. Furthermore, the appellant's Counsel had access to the original cassette tapes, and did not maintain objection to the compilation admitted into evidence.

GROUND 5: ALLEGED LACK OF REASONS AND ERRORS CONCERNING VIDEO

77 The appellant submitted that the primary judge erred because of the respondent's exaggeration of the claims being made by the appellant and by his doctors, and erred in his assessment of the video tape, in particular in failing to make any finding in relation to involuntary spasms shown in this video.

78 The matter of exaggeration of the appellant's claims has already been touched on, and as before, I do not think there is substance in this contention. I have carefully watched the video tape in evidence, and I have been unable to observe involuntary spasms at points indicated by the appellant. I see no error in the primary judge's assessment of the video tape, and I consider his reasons for this assessment were adequate.

79 The appellant also submitted that the video tape had been manipulated so as to mislead the Court by cutting out parts favourable to the appellant. In my opinion, there is no basis for that submission, particularly in circumstances where the originals taken by the investigators were available and were shown at the trial.

GROUND 7: ALLEGED ERROR IN RELATION TO DR. MELLICK

80 Reports were obtained from a Dr. Mellick by the defendant in the other proceedings, that is proceedings concerning the falling fence which were settled for $900,000.00 plus costs. After that settlement, the other defendant waived its privilege in relation to those reports, the respondent obtained access to them, and it then served them and sought to tender them. Although the reports had not previously been served on the appellant, the primary judge permitted them to be tendered and permitted Dr. Mellick to give evidence. It was the appellant's submission that this was an error of law and a denial of natural justice.

81 In fact, the reports were admitted on 3 August 2001 with the primary judge saying "It might be the subject of an adjournment to enable the plaintiff's representatives to get appropriate instructions about the matter". No adjournment was sought, and the case then continued to 21 August before judgment was reserved. In my opinion, the decision of the primary judge is not shown to be erroneous in the sense required by House v. The King [1936] HCA 40; (1936) 55 CLR 499.

GROUND 8: REPORT OF PAMELA JOHNSON

82 A report by Pamela Johnson of Vocational Capacity Centre had been obtained by the appellant's previous solicitors, but was admitted into evidence by the primary judge over objection of the appellant's Counsel. The reason given by the primary judge was that a summary of the document had been sent to Dr. Bleasel, who had given evidence for the appellant. The appellant submitted that this report was protected by client legal privilege, and should have been rejected. What had been sent to Dr. Bleasel was not a true summary of the report, but only a reference to it in a chronology.

83 In my opinion, the provision of a summary of a privileged document to a witness called by the party claiming privilege would not result in the loss of that privilege unless the summary disclosed the substance of the document or unless the document itself was reasonably necessary to enable a proper understanding of the summary: see Evidence Act ss.122, 126. However, the respondent's Counsel had called for this document, and it was produced without objection by the appellant's Counsel; and then Dr. Bleasel was cross-examined on the basis of its contents. Objection was taken when the document was later tendered, and in my opinion that objection can be taken to have been on the basis of legal privilege, even though that was not specifically stated. However, in my opinion the prior production of the document without objection and prior permission of its use in cross-examining Dr. Bleasel amounted to a waiver of privilege. No evidence was led before us that this occurred by reason of mistake or oversight. I have mentioned that the appellant seeks leave to rely on inadequacy of his legal representation, and I will consider that matter later.

GROUND 10: SEVERITY OF IMPACT

84 The appellant submitted that the primary judge's finding to the effect that the impact was a mere nudge was glaringly improbable, particularly in view of the repair bill and the circumstance that the cars were separated by about one metre after the impact.

85 In my opinion, it was open to the primary judge to infer that the respondent must have reversed after impact, although she did not remember having done so. There was no onus on the respondent to prove that the damage referred to on the repair bill was not caused by the accident: in circumstances where no damage was noticeable at the scene of the accident but a 7-8mm displacement of the rear bumper was detected on close examination the following day, it is possible that the damage could have pre-existed the accident. In any event, the displacement of a rear bumper by 7-8mm would not of itself, without expert evidence, prove a severe impact. In all the circumstances, in my opinion no appealable error is shown in the primary judge's acceptance of the respondent's evidence and consequent finding that the impact could be described as a mere nudge.

GROUND 11: MEDICAL EVIDENCE

86 The appellant has provided very detailed and lengthy submissions concerning the medical evidence, in support of a conclusion that the primary judge misunderstood the medical evidence and reached the wrong conclusion on it. To my mind, the most significant points made by the appellant were the following:

1. That the primary judge and the respondent's doctors did not take into account the conclusive evidence of spinal injury provided by an SSEP (Somato Sensory Evoked Potential) test.

2. That the primary judge on his own criteria should have found a neurogenic bladder condition, in circumstances where there were no complaints of bladder problems before the accident and complaints were made shortly after the accident.

3. That the primary judge erred in rejecting the plaintiff's case on the basis that he did not suffer lumbar cord injury (when the allegation was of cervical cord injury) and that he did not suffer myelomalacia (a specific condition that may result from cord injury but which is different from mere cord injury).

4. That a disc fragment found in the first scan taken five days after the motor vehicle accident, and not shown on any scan before the accident, which subsequently healed, was extremely powerful evidence of trauma suffered in the motor vehicle accident.

87 Although these points are not without substance, I do not think they show any appealable error by the primary judge.

88 As regards the first, the question before the primary judge was not merely the existence of spinal injury, but the existence of spinal injury caused by the accident of 3 April 1998 causing disabilities of the kind complained of by the appellant. The SSEP test was certainly not conclusive on that question.

89 Second, contrary to the appellant's submission, the evidence was far from clear that there were no complaints of urinary problems prior to the accident and that there were complaints made soon after. That was a possible conclusion from the evidence; but there was some evidence of complaints of urinary problems prior to the accident, and the first conclusive evidence of complaints after the accident was in July 1998, albeit then being a complaint of problems alleged to have existed for two months.

90 Third, in my opinion the primary judge's judgment does not suggest that the primary judge misunderstood the appellant's case to the extent of thinking that the case in relation to bladder dysfunction was based on alleged lumbar spine injury, or that the appellant had to establish myelomalacia rather than mere spinal cord injury.

91 As regards the fourth matter, this matter was specifically taken into account by the primary judge in his judgment, and dealt with by him.

92 In all these circumstances, in my opinion no appealable error is shown in relation to the judge's treatment of the medical evidence.

GROUND 12: INADEQUATE LEGAL REPRESENTATION

93 There are very limited circumstances in which an appeal can succeed on the basis of inadequate legal representation or particular errors made by legal representatives. In my opinion, nothing like those circumstances are shown in this case. The one particular matter mentioned earlier in this judgment, namely the failure to claim client legal privilege at the time when Ms. Johnson's report was called for, is not shown to be a tactical error, and in any event could not amount to an error justifying allowing an appeal.

CONCLUSION

94 I have dealt individually with the various grounds of appeal. The appellant filed very lengthy written submissions which he supplemented orally, and although I have not set out every detail and every point sought to be made, I have considered all he put forward. In my opinion, considering all the grounds together, and in particular considering the combination of grounds 1 and 11, there is still no appealable error shown and no ground for thinking that the appellant did not have a fair trial.

95 The question for this Court is not whether this Court concludes on the material before it that the appellant sought to make out a fraudulent case. The question before this Court is whether the primary judge's decision shows appealable error or whether the appellant has otherwise not had a fair trial. In my opinion, both those questions must be answered in the negative.

96 In my opinion, the appeal should be dismissed with costs.

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LAST UPDATED: 14/02/2003