Strinic v Singh [2009] NSWCA 15 (19 February 2009)

Last Updated: 26 February 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Strinic v Singh [2009] NSWCA 15


FILE NUMBER(S):
40479/07

HEARING DATE(S):
12 November 2008

JUDGMENT DATE:
19 February 2009

PARTIES:
Jovan Strinic (Appellant)
Ravindra Singh (Respondent)

JUDGMENT OF:
Beazley JA Ipp JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2362/04

LOWER COURT JUDICIAL OFFICER:
Neilson DCJ

LOWER COURT DATE OF DECISION:
29 June 2007


COUNSEL:
B Toomey QC; G Bateman (Appellant)
D Russell SC; M Vesper; S Bouveng (Respondent)

SOLICITORS:
Martin Bell & Co (Appellant)
Feguson-Bolten Lawyers (Respondent)

CATCHWORDS:
JUDGES AND COURTS - judicial obligation to make findings of fact on proved evidence - assumption by a judge that his/her knowledge of any particular matter is correct judicial review – procedural fairness
EVIDENCE - witnesses - assessment of the credit of a witness- assessment based on wrong factual findings
EVIDENCE - witnesses - assessment of the credit of a witness- reliance on individual judge’s own medical knowledge

LEGISLATION CITED:
Motor Accidents Compensation Act 1999
Suitors’ Fund Act 1951
Supreme Court Act 1970, s 75A

CATEGORY:
Principal judgment

CASES CITED:
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199;
Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Coombes v RTA [2006] NSWCA 229
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Holland v Jones [1917] HCA 26; (1917) 23 CLR 149
JLT Scaffolding International Pty Ltd (In Liq) v Silva (New South Wales Court of Appeal, 30 March 1994, unreported)
Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226
Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165

TEXTS CITED:


DECISION:
1. Appeal allowed;
2. Set aside the judgment and orders made in the Court below;
3. Order that the matter be remitted to the District Court for rehearing;
4. Order that the respondent pay the appellant’s costs of the appeal. The respondent is to have a certificate under the Suitors’ Fund Act 1951;
5. Order that the costs of the first trial abide the outcome of the rehearing in the District Court and be in the discretion of the trial judge on the rehearing.



JUDGMENT:

- 43 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40479/07

BEAZLEY JA

IPP JA

BASTEN JA

19 February 2009

Jovan Strinic v Ravindra Singh

Headnote

On 8 March 2000, Mr Strinic was injured in a motor vehicle accident when a vehicle collided with the rear of his vehicle. Mr Strinic brought proceedings against the driver of the other vehicle, who admitted liability. His Honour Neilson DCJ in the District Court awarded damages in the sum of $300,032.38. Mr Strinic appealed against his Honour’s award of past and future economic loss. He contended that the award should have reflected his ongoing incapacity to engage in full-time employment and should therefore have based upon the difference between his current net earnings of $250 per week and his pre-accident earnings of $930 per week.

An important factor in Neilson DCJ’s judgment was the adverse crediting finding he made in respect of Mr Strinic. His Honour found it difficult to assess Mr Strinic’s credibility because he appeared depressed but nonetheless found that he had exaggerated his condition, both verbally and non-verbally, in the witness box and in consultations with medical practitioners.

The central issue on appeal was whether Neilson DCJ had used his own medical knowledge, derived from his judicial experience in personal injury litigation.

Held

Per Beazley JA (Ipp JA and Basten JA agreeing):

1. A court must make a determination on the evidence. The District Court is not a court of specialist jurisdiction and the principles and practices that apply in such courts do not apply: [58].

JLT Scaffolding International Pty Ltd (In Liq) v Silva (New South Wales Court of Appeal, 30 March 1994, unreported) (considered)

2. There is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge): [60].

Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 (considered); Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 (considered); ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 (considered); Coombes v RTA [2006] NSWCA 229 (considered); Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226 (considered).

3. An assumption by a judge that his/her knowledge of any particular matter is correct is an error of law even if the individual judge has a great deal of experience dealing with the matter. Underlying that error is a fundamental breach of procedural fairness.

Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 (applied)

4. A trial judge’s familiarity with medical terminology and medical conditions from experience is of undoubted assistance in helping a judge understand the evidence in a particular case but it does not make the judge an expert in the case and does not replace the requirement to base findings on the evidence [59], [64].

Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37 (considered)

5. A trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge’s understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge’s acting on that understanding [65].

6. A trial judge’s assessment of the credit of a witness is not protected by the advantage that the judge has in seeing and hearing the witness where the assessment of credit is based on wrong factual findings, unless the wrong factual finding is irrelevant or not so critical as to undermine the advantage that the trial judge otherwise has in assessing the evidence of the witness: [80].

Abalos v Australian Postal Commission [1990] HCA 47 (considered)[1990] HCA 47; ; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588 (considered); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (considered); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 (considered); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 (considered).

7. In circumstances where his Honour’s conclusions were based in a substantial way on his own understanding of medical matters, his Honour’s underlying fact-finding was compromised and the appellant was denied procedural fairness: [115].

8. The trial judge’s reliance on his own medical knowledge to make the adverse credit finding was sufficient to impugn the judgment.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40479/07

BEAZLEY JA

IPP JA

BASTEN JA

19 February 2009

Jovan Strinic v Ravindra Singh

Judgment

1 BEAZLEY JA: The appellant was injured in a motor vehicle accident on 8 March 2000 when a vehicle collided with the rear of his vehicle. He brought proceedings against the driver of the other vehicle. Liability was admitted and the matter proceeded to trial before his Honour Neilson DCJ in the District Court for assessment of damages. The claim was governed by the provisions of the Motor Accidents Compensation Act 1999.

2 The trial judge awarded the appellant damages in the sum of $300,032.38. Of that amount, $87,734.45 was awarded for past economic loss and $103,700 was awarded for future economic loss. His Honour made no award for non-economic loss and it was common ground between the parties that by virtue of the Claims Assessment and Resolution Service (CARS) medical assessment, the appellant was not entitled to such an award.

3 In respect of past economic loss, his Honour awarded a total of income from the date of the accident until 28 February 2001. Thereafter, his Honour awarded an economic loss, up to the date of trial and permanently into the future, amounting to $200 per week. The appellant contended that this assessment was erroneous and he should have been entitled to damages based upon an ongoing incapacity to engage in full-time employment. He contended the proper assessment should have been based upon the difference between his current net earnings of $250 per week as a casual/part-time doorman, and his pre-accident earning of $930 per week.

4 The trial judge made an adverse credit finding in respect of the appellant. His Honour considered that the appellant was clearly depressed, which made it hard to gauge his credibility. However, his Honour described the appellant’s manner in the witness box while he was giving evidence as to his level of pain as being “quite flamboyant”. Likewise, his Honour considered the appellant was “flamboyant” in telling medical practitioner about the level of his pain: [104]. His Honour then, at [105], distinguished between exaggeration in verbal expression and the feigning of physical signs when being examined by medical practitioners. His Honour found that it was “very evident to me that the [appellant] has feigned on medical examination and failed to cooperate with doctors”. His Honour said that was inexcusable and the appellant only hurt himself by so doing. His Honour did not state the respects in which the appellant had feigned on his medical examination or failed to cooperate with doctors.

5 His Honour held, at [106], that the appellant had, prior to the accident, pre-existing degenerative disc disease in his cervical spine and lower back and that the accident precipitated the symptoms of this condition. His Honour stated the question for his consideration as being whether “the [appellant’s] condition persists”.

6 His Honour found the appellant had exaggerated his condition, both verbally and non-verbally and could not exclude that his motivation for doing so was for secondary gain: [107]. Nonetheless, it appears his Honour accepted the appellant’s prior work history had been very good and his motivation to work was very strong. His Honour concluded, at [108], that the appellant was totally incapacitated for a period following the motor vehicle accident, which he could not project beyond 27 February 2001, when the appellant was assessed by Drs Limbers and Parameswaran. His Honour found that thereafter, the appellant was incapacitated for the heavy work he had previously been doing, but did not accept he was totally incapacitated for work. His Honour found it was at this stage, that is, February 2001, the appellant commenced exaggerating.

7 His Honour concluded the appellant had ongoing symptoms referable to the underlying degenerative disc disease which either had been aggravated or precipitated by the motor vehicle accident. His Honour considered that as those symptoms had persisted for some years, they were likely to persist indefinitely. His Honour noted this was not disputed by the respondent. Nor had the respondent contended that the appellant was completely fit for his pre-accident employment. It was on this basis that his Honour accepted that the appellant had an ongoing interference with his earning capacity that he assessed at $200 per week.

The appeal

8 Four issues emerged from the multiplicity of grounds appeal advanced by the appellant, namely: first, that his Honour determined his claim on the basis of medical opinions which were not supported by the evidence: grounds 1-9; secondly, that his Honour erred in finding that the motor vehicle accident was a “minor one”: grounds 10-12; thirdly, that his Honour’s interpretation of the radiological investigations was either inconsistent with the totality of the medical evidence or was not supported by the medical evidence: grounds 13-21; and fourthly, that his Honour erred in his approach to the determination of the appellant’s work capacity: grounds 22-23.

9 As the argument developed on the appeal, the central issue became whether his Honour had determined the medical issues in the case on the basis of his own knowledge. This question was encapsulated in the first and second issues identified by the appellant, encompassing grounds 1-9 and 13-21. The matters raised in these grounds need to be dealt with in some detail. Unsurprisingly, some are of more significance than others in the determination of the appeal and will be approached to reflect that.

10 It is convenient in the first instance to deal with the second issue, that is, whether his Honour erred in finding that the motor vehicle accident was a minor one: grounds 10-12. This issue puts the circumstances of the accident in context. It also raises the question whether his Honour’s assessment of the severity of the collision affected his assessment of the appellant’s credit. This is significant, because his Honour’s adverse credit finding against the appellant was a critical feature in his assessment of the appellant’s ongoing disability and, therefore, in the assessment of damages to which he was entitled.

The collision: grounds 10-12

11 It was the appellant’s case that the collision was of some force. In his evidence at trial, he said that whilst driving along Cabramatta Road, the vehicle in front of him became stationary and as he got near to it, he became stationary as well, when he was suddenly rammed by another car from behind. He said the force of the impact made his car scratch the car in front and he ended up in a different lane. He described the impact from behind as being “very hard” and said that his seat broke and he fell backwards onto the back seat. The appellant said his right shoulder hit the interior of the car and he immediately felt shock and pain in his lower back, neck and shoulder. He stayed in the car until the ambulance arrived.

12 The ambulance report recorded the incident in the following terms:

“MVA: small sedan: rear shunt: low speed: driver recall incident.”

The report also stated that the appellant complained of pain in his right shoulder, specifically, the proximal one-third of the humerus and in the lower back. It was noted the appellant was ambulant at the scene of the accident. The report recorded, “Nil obvious injuries”. The appellant was transported to hospital for assessment.

13 The appellant was cross-examined as to whether he had given the above history, as to how the accident occurred, to the ambulance officer. In particular, he was cross-examined as to whether his vehicle was moving at the time of the impact and specifically, whether it was moving at about 5 km per hour. The appellant said he didn’t remember “any details” and that he did not recall saying to the ambulance officer that there had been “a rear shunt at low speed”. He stated it was not his understanding that it had been a low-speed impact from behind.

14 English was not the appellant’s first language and during the trial, he had the assistance of an interpreter, although he was able to answer many questions in English. I raise this point, as the terminology used in the Ambulance Report is not what might be expected from a person who did not have a complete command of the English language. Indeed, it is not language that would usually be used by most English speakers, having a sense of jargon about it. Whilst I would not be satisfied that the appellant gave such a description to the ambulance officer, there was more concrete evidence available in relation to the force of the impact, which supports the appellant’s case that the collision involved some force. This is regardless of the speed at which any of the vehicles involved in the collision were travelling at the moment of impact.

15 The first of those matters is that the dynamics of the collision were such as to force the appellant’s vehicle into another car. In the Personal Injury Claim Form lodged with the Motor Accident Authority, the appellant specified the damage caused to his vehicle in terms: “Back Front / written off”. The appellant was not cross-examined about this description. Importantly, his Honour made no reference to this particular evidence. It indicates a collision of sufficient force that both the front and back of the vehicle must have been pushed in or crumpled, so as to qualify for the description of “written off”.

16 In a history given to Dr Lawson on 6 July 2000, Dr Lawson recorded that the appellant’s car was moving slowly when another vehicle collided with his car’s rear end. He also recorded that it was a heavy impact which resulted in a lot of damage to the appellant’s car, which was written off following the collision. There were references in other medical reports to the appellant’s vehicle having been written off. Again, it was not put to the appellant in cross-examination that this was a wrong or exaggerated description.

17 The trial judge, at [6], dealt with the accident in these terms:

“On any objective assessment the motor vehicle accident ... was a minor one. There were no immediate dramatic injuries.”

His Honour found, at [8], that the appellant’s vehicle was struck whilst he was still travelling at a very low speed. His Honour then referred to the description of the accident in the ambulance report.

18 At [26], his Honour again referred to the speed of the vehicle, noting that Dr Lawson confirmed that the appellant’s car was moving slowly at the time of the collision. His Honour continued:

“The [appellant] told Dr Lawson that the collision involved a ‘heavy impact’ which is the [appellant’s] evidence to me. However, that is not consistent with what is contained in the ambulance report and is not consistent with objective facts. The [appellant] suffered no cut, no abrasion, no scratch and no fracture.”

19 It is apparent from these passages in his Honour’s reasons that he relied both upon the low speed of the impact and upon the absence of immediate traumatic injury as demonstrating that the accident was a minor one. It also follows that his Honour rejected the appellant’s evidence that there had been a heavy impact.

20 The appellant contended that the trial judge erred in this assessment of the physical impact. First, he relied upon the fact that he was not cross-examined to establish that the impact itself was not a “heavy impact”, regardless of whether the appellant was stationary at the point of impact or was travelling at a low speed. Secondly, there was no evidence to the contrary of that given by the appellant, the driver of the other vehicle not being called to give evidence. The appellant further contended that there was no evidence that permitted his Honour to reason that: because the appellant suffered no obvious external injury, such as a cut, abrasion, scratch or fracture, the collision could not have involved a heavy impact. This submission must be accepted. There was no medical or other evidence to support his Honour’s finding and it is does not accord with common experience. The respondent acknowledged this, senior counsel for the respondent accepting that the severity of injury was not necessarily correlative to the force of the impact.

21 The appellant also complained that the respondent had not raised an issue about the force of the impact, as demonstrated by the absence of cross-examination on that point. The question of the severity of the impact was not raised until the appellant’s counsel’s final address, when his Honour indicated that the reference to “low speed” appeared to be a history given by the appellant to the ambulance officer. During the course of that discussion, counsel for the appellant informed his Honour that there was evidence about the car being written off. Nothing else was said, either by his Honour or by counsel, on this point. In particular, his Honour did not indicate that he had in mind that the absence of frank injury such as cuts, abrasions or fractures were objective factors upon which he would assess the severity of the collision. Nor did his Honour indicate this would be a matter that would play any part, let alone an important part, in his Honour’s overall assessment of the appellant’s credit and the consequent assessment of the extent of his injuries.

22 The respondent contended that the description of the motor vehicle accident in the ambulance report was probative material upon which his Honour was entitled to rely in making his finding as to the severity of the impact. The respondent further contended that it was also open to his Honour to infer that the description in the ambulance report came from the appellant. That submission is uncontentious in the sense that a trial judge is entitled to make findings on evidence and in doing so is entitled to accept some evidence and reject other evidence. However, the submission does not deal with the other difficulty to which I have referred, namely that his Honour based part of his finding on his own assessment of matters that was not supported by evidence or which accorded with common sense. There is the further difficulty with this finding, in that his Honour did not have regard to all of the evidence. Whilst his Honour referred to Dr Lawson’s evidence, he did not refer to the Personal Injury Claim form nor to the consistent history given by the appellant to other medical experts. Nor did his Honour deal with the evidence that the driver’s seat broke and collapsed backwards. The respondent’s submission fails to deal with these matters.

23 The respondent submitted that the finding as to the force of the impact was essentially irrelevant, as his Honour did not find that the severity of the impact necessarily correlated with the level of the appellant’s injuries and disabilities. The respondent contended that the only use made by the trial judge of the material regarding the level of impact was in relation to the overall assessment of the appellant’s credibility. With respect, that raises the essential problem with his Honour’s finding. As I have already said and as will become apparent, his Honour’s determination of the appellant’s claim was significantly influenced by an adverse finding as to his credit. The finding as to the minor nature of the accident was made early in the judgment. In making that finding, his Honour did not have regard to all of the evidence and he based the finding upon his own understanding of matters, which did not find support in the evidence. If that was the only example of such an approach to the fact-finding task in his Honour’s judgment, it probably would not have been sufficient to call for appellant intervention. However, it was not the only matter. The following examination of his Honour’s judgment reveals a pattern of judicial reasoning in which his Honour made findings of fact based upon his own medical knowledge which find no, or limited, support in the medical evidence.

Did the trial judge determine the appellant’s claim on the basis of medical opinions not supported by the evidence? Grounds 1-9

24 The appellant contended that the trial judge erred in reaching a conclusion as to his credit on the basis of his Honour’s own medical diagnostic findings, unsupported by any corresponding medical evidence: ground 1. The appellant argued this ground in the succeeding eight grounds of appeal. As I have already indicated, some of the complaints are more substantial than others. It is convenient to deal with each of these grounds separately, as each attacks a particular aspect of his Honour’s findings. However, I will deal with the grounds in order of their more apparent importance.

False complaint to Dr Mahony

25 The appellant submitted that his Honour erred in rejecting the appellant’s complaint to Dr Mahony, an orthopaedic specialist, on 30 June 2000, that his symptoms had been worse in the preceding 10 days. It was submitted that his Honour erred because he considered that the only possible explanation for the appellant’s worsening condition would be the inevitable progression of degenerative disease, but, again in his Honour’s opinion, such progress is “generally very slow”: ground 2.

26 At the time of the accident, the appellant had been on light duties, awaiting surgery for bilateral inguinal herniae. The appellant underwent surgery for that condition on 28 March 2000. He was reviewed by the operating surgeon, Dr Mendelsohn, on 15 June 2000. Dr Mendelsohn noted the appellant had made an excellent recovery from the surgery and, apart from the problems associated with the motor vehicle accident, he would be fit to return to his usual duties.

27 The appellant came under the care of Dr Mahony following a referral from his treating doctor, Dr Yenson. Dr Mahony first saw the appellant on 26 April 2000 and provided a report to Dr Yenson dated 6 May 2000. At the time of this consultation, Dr Mahony had available a CT scan of the appellant’s lumbar spine, as well as X-rays of his cervical spine. The X-rays revealed a mild scoliosis convex to the right. I will deal fully with the CT scan and other radiological investigations later.

28 Dr Mahony was of the opinion that the appellant had symptoms referable to a cervical strain with nerve root irritation affecting the right upper limb; occipital headaches being referred from the neck; a capsulitis of his right shoulder; and a low lumbar back strain with nerve root irritation, affecting the right lower limb. Dr Mahony also was of the opinion that there was “some evidence of a disc lesion at the lumbo sacral level with a degree of developmental spinal stenosis at this level”.

29 Dr Mahony reviewed the appellant again on 26 May 2000. On that occasion, the appellant complained of pain in the back of his neck, radiating to the occipital area, the right shoulder and right upper arm. He also complained of specific pain in the right shoulder and lower back pain radiating to the right calf. In a report to Dr Yenson dated 31 May 2000, Dr Mahony referred to MRI investigations of both the cervical and lumbar spine. He again expressed the opinion that the appellant had symptoms referrable to a cervical strain with nerve root irritation affecting the right upper limb and occipital headaches being referred from the neck. Dr Mahony also considered the appellant had an associated discogenic lesion at the C6/7 level. He had earlier commented in respect of the MRI of the cervical spine that he considered “that there was some bulging at the C6/7 level”.

30 Dr Mahony also expressed the opinion that the appellant had:

“... symptoms referable to a capsulitis of the right shoulder as well as a low lumbar back strain with nerve root irritation affecting the lower limbs.”

There was also “some evidence of discogenic lesions at L3/4, L4/5 and lumbo sacral levels”. Dr Mahony again commented upon the appearance of a degree of developmental spinal stenosis at the lumbosacral level. He considered the appellant unfit for work.

31 Dr Mahony next reviewed the appellant on 30 June 2000 and reported to Dr Yenson on 4 July 2000. Dr Mahony noted complaints of:

“... pain in the back of [the appellant’s] neck radiating to the occipital area, to the right shoulder and right upper arm, specific pain in the right shoulder as well as low back pain radiating to the right calf.”

Dr Mahony also recorded that he understood the appellant’s symptoms had been worse over the 10 days prior to the consultation. His opinion was essentially the same as in his previous reports and he advised treatment by way of manipulation of the appellant’s neck and back, as well as an epidural injection of hydrocortisone. Dr Mahony also advised physiotherapy and the wearing of a lumbar support. Again, he considered the appellant unfit for work.

32 Dr Mahony performed the manipulation and injected hydrocortisone at Bankstown Private Hospital on 21 July 2000. On 11 September 2000, Dr Mahony reported to Dr Yenson that after a review of the appellant on 1 September 2000, he understood the appellant had:

“... gained some improvement in regard to his neck and shoulder symptoms following the manipulation and epidural injection of steroid.”

Dr Mahony recorded the appellant’s complaints of back pain.

33 Dr Mahony’s opinion of the appellant’s condition remained unchanged and he considered the appellant unfit for work. In subsequent reports to Dr Yenson, following reviews on 13 November 2000 and 19 January 2001, Dr Mahony recorded that the appellant appeared:

“... to have gained improvement in regard to the symptoms referrable to a cervical strain with nerve root irritation affecting the right upper limb.”

That improvement appears to have been maintained when Dr Mahony again reviewed the appellant on 9 March 2001, reporting to Dr Yenson on 17 March 2001.

34 His Honour, after reviewing the above evidence, commented, at [25]:

“One would think that after 15 June 2000 there might be some amelioration in the [appellant’s] condition. He saw Dr Mahony on 30 June 2000, but complained to the doctor that his symptoms had been worse the ten days prior to the consultation. Why the [appellant’s] symptoms should get worse the evidence does not adequately disclose. The only possible explanation is the inevitable progression of degenerative disc disease in both the neck and the low back, but such inexorable progress is generally very slow. On this occasion as on many, many occasions Dr Mahony merely recounts a history and provides an opinion without giving his findings on examination.”

35 The appellant complained that there was no medical evidence to support the hypothesis advanced by his Honour in the emphasised portion in this paragraph and that it was one of the matters in respect of which his Honour based his adverse credit finding against the appellant.

36 The respondent contended that his Honour had reasoned that a sudden elevation of symptoms over a short period was not a complaint consistent with degenerative disc disease, being the condition from which his Honour found the appellant suffered. The respondent said that it is a matter of common knowledge that such diseases manifest gradually, a matter in respect of which the Court would be able to take judicial notice: the Evidence Act 1995, s 144. It was submitted, therefore, that the error of which the appellant complains has not been made out.

37 There was no medical evidence to the effect of his Honour’s finding and I am not satisfied that it is a matter of common knowledge that degenerative conditions exhibit themselves slowly, whatever that may mean. Presumably, there is a whole range of degenerative conditions which exhibit themselves in various ways, in varying intensities and over various periods of time.

38 I consider that ground 2 has been made out.

“Invalid complaint” of left leg numbness

39 The appellant complained that his Honour erred in finding the appellant’s complaint to Dr Bleasel, neurosurgeon, on 8 May 2001 of left leg numbness in the morning was invalid, as this would require lesions affecting the L1, L2, L3, L4, L5, S1 and S2 nerves: ground 4.

40 Dr Bleasel saw the appellant on 8 May 2001 and provided a report to the appellant’s solicitors on 10 May 2001. Dr Bleasel recorded, relevantly to the present ground of appeal, a history of:

“... pain in both legs, particularly the left, and a sensation of ‘pins and needles’ in the left leg, particularly in the morning when the leg feels almost completely numb.”

41 Dr Bleasel had available to him MRI scans of the cervical and lumbar spine. He stated that the MRI scan of the lumbar spine showed disc space narrowing at L3/4, desiccation and a left sided posterolateral disc herniation associated with an annular tear. Dr Bleasel said there was also circumferential bulging at L5/S1 with a tiny posterocentral disc herniation. Dr Bleasel diagnosed:

“... disc damage to the lumbar region and nerve root irritation probably of the L5 nerve root with some evidence of nerve root damage in the form of muscle wasting.”

In this regard, Dr Bleasel had measured the appellant’s left lower leg as being half an inch less in circumference than the right.

42 Dr Bleasel then referred to a more recent MRI scan of the lumbar spine dated 18 April 2001, which showed a disc protrusion at the lower three spaces. There was a protrusion displacing the L5 nerve root. He stated that this confirmed his clinical suspicion of major damage at that level, with nerve root damage affecting the L5 nerve root.

43 The trial judge, at [51], referred to the complaint of “pins and needles in the left leg particularly in the morning when the leg felt ‘almost completely numb’”. His Honour stated:

“A complaint of almost complete numbness of a leg is general [sic] regarded as un-anatomic. For such a complaint to be valid there would have to be lesions affecting the L1, L2, L3, L4, L5, S1 and S2 nerves. Dr Bleasel unfortunately makes no comment as to where the sensation of paresthesia was.”

44 The respondent contended that the evidence of Dr Papatheodorakis supported his Honour’s comment. Dr Papatheodorakis is a general practitioner with qualifications in occupational medicine. He provided a report to the Motor Vehicle Accidents Authority on 8 July 2004. For the purposes of providing his report, he undertook an examination of the appellant and also had available to him a series of medical reports, including that of Dr Bleasel. Dr Papatheodorakis recorded, as part of the appellant’s “current symptoms”, complaints that included:

“... ‘pins and needles’ about the whole of his left lower limb, and this was also associated with occasional weakness about both lower legs.” (Original emphasis)

45 Dr Papatheodorakis said that on his assessment, there was “no clinical evidence” of “persistent significant abnormalities” in relation to the appellant’s lumbosacral spine (emphasis added). He repeated that there were no “significant clinical findings” in respect of the lumbosacral spine and concluded that:

“... despite persistent symptoms in relation to [the appellant’s] neck and lower back regions, there is no clinical evidence that there are any significant persistent physical abnormalities ...” (Emphasis added)

46 I have emphasised portions of this report because Dr Papatheodorakis did not state that the appellant had no abnormalities. He accepted that the appellant had a degenerative condition which was “undoubtedly” aggravated by a “superimposed soft tissue injury”, which, he added, was “possibly discogenic in nature”. In making this comment, Dr Papatheodorakis did not explain how a soft tissue injury could be “discogenic in nature”.

47 Whilst the respondent’s submission was that this evidence supported his Honour’s comments at [51], senior counsel for the respondent conceded that the evidence did not directly do so. The respondent submitted, however, that the appellant at all times bore the onus of proving his case, including that his complaints were soundly based in medicine. It was initially submitted that the appellant elected not to do that. This submission was later revised and it was argued that the appellant had not pointed to any material to demonstrate that this conclusion of the trial judge was wrong.

48 The respondent further submitted that there was evidence in the case relating to dermatomal distribution from which his Honour was entitled to distil the greater proposition made at [51]. Such evidence, however, was not identified. It is relevant to note that the issue of specific dermatomal distribution was also the subject of his Honour’s consideration at [52] and [53]. There, his Honour referred, inter alia, to the results obtained by Dr Bleasel in relation to straight leg raising and then referred to the lesser measurement of the lower left leg. His Honour stated in relation to this, at [52]:

“That suggests, of course, calf wasting which is consistent with the radiculopathy affecting either the S1 or S2 nerve roots. The S1 nerve root would indicate an L5 S1 disc lesion. It is impossible to have an S2 lesion from a prolapsed disc because that nerve root does not exit the back other than through the sacrum. However, reflexes were present and equal.” (Emphasis added)

49 This was not a matter that was the subject of a specific ground of appeal but was raised by the Court during argument. The respondent conceded that the Honour’s comment in the emphasised portion in this passage was his Honour’s own interpretation of the observations of tests conducted by Dr Bleasel. I should also add that there was no other evidence in the case to the effect of his Honour’s finding.

50 At [53], his Honour referred to Dr Bleasel’s opinion that, inter alia, there was “disc damage in the low back with nerve root irritation ‘probably of the L5 nerve root’”. His Honour then referred to Dr Bleasel’s opinion that the muscle wasting in the left leg was consistent with the L5 nerve root damage. His Honour added, “but the calf, on any anatomical diagram, is innervated by S1 and S2 and not L5”.

51 In a report of 17 July 2002, Dr Bleasel recorded a complaint of left leg pain and a pins and needles sensation of the left leg, with some numbness of the left lower leg in bed. Dr Bleasel considered that there appeared to be wasting of both the left thigh and lower leg. He said the measurements of the appellant’s legs were not grossly different, although the left was slightly smaller in circumference. The main difference, however, was the flabbiness of the muscles. He again referred to the MRI scans and recorded the disc protrusion at L3/4, L4/5 and L5/S1, most pronounced at L4/5 towards the left side, displacing the L5 nerve root. He also referred to the protrusion at L3/4, which showed an annular tear. Importantly for this ground of appeal Dr Bleasel stated that these findings corresponded with the left leg pain and periodic numbness.

52 Dr Bleasel was not cross-examined and the respondent conceded that there was no expert medical evidence to support the trial judge’s comment, which involved the direct rejection of the unchallenged evidence of an orthopaedic specialist. However, it was contended that the trial judge was entitled to rely upon common scientific knowledge to the effect that certain neurological symptoms, such as paresthesia, sensory loss, and pins and needles, in certain parts of a limb, were evidence of interference with a nerve, innervating that part of a limb. It was submitted that his Honour was invoking common anatomical knowledge of the human nervous system, about which his Honour was entitled to take judicial notice.

53 The respondent submitted, alternatively, that in any event, there was expert medical evidence in the case that in fact invoked anatomical knowledge and provided a basis for his Honour to make the finding that he did. For example, Dr Dixon, consultant orthopaedic surgeon, who examined the appellant on 12 March 2007, found “mild sensory alteration in an L5 distribution” in relation to his legs. Dr Dixon had examined the appellant, it would appear, in March 2007. He provided a report to the appellant’s solicitors dated 12 March 2007. In that report, Dr Dixon recorded a complaint of paresthesia in the appellant’s lateral left leg and foot. Dr Dixon then referred to his finding of “mild sensory alteration in an L5 distribution”. Dr Dixon diagnosed the appellant, insofar as his back was concerned, as having:

“... a back strain injury with residual lumbo-sacral interspinous ligamentous strain with disc lesions at L3/4, L4/5 and L5/S1 most marked at the L4/5 level [as well as an] L5 radicular complaint with compressive features on the left.”

54 This appears to be a similar finding to that made by Dr Bleasel, at least to the extent that Dr Bleasel considered there was nerve root irritation, probably of the L5 nerve root. It is likely that each had the opinion that the symptoms in the left leg were caused by radiculopathy. It follows that, rather than supporting the trial judge’s comment, Dr Dixon’s evidence supports Dr Bleasel’s opinion.

55 The respondent also referred to the evidence of Dr Patrick, surgeon. Dr Patrick reviewed the appellant on 5 August 2003. Dr Patrick’s report reads, relevantly, “[t]here is diminished sensation at the lateral aspect of the left leg below knee to repeated examination, consistent [sic]”. It was accepted that Dr Patrick meant “consistent with significant disc injury at L4/5”.

56 As I understand the respondent’s submission, this medical evidence demonstrated that injury at a specified level in the spine caused problems at specific sites, such as the lateral aspect of the left leg from injury to L4/5 and accordingly, it could be concluded that his Honour’s comments at [51], [52] and [53] correctly reflected proper anatomical facts. It is not apparent to me, from the medical reports to which the respondent referred, that his Honour’s understanding of spinal damage and the correlation with dermatomal distributions is correct. In particular, his Honour’s ‘knowledge’ or ‘understanding’ does not appear to be consistent with the evidence of Drs Bleasel and Dixon and there is nothing in Dr Papatheodorakis’ report to support his Honour’s comments.

57 The respondent submitted that some of these matters could be ascertained from medical resource books. Recource to medical dictionaries and anatomical tables may be appropriate to ascertain the meaning of terminology used in medical evidence. However, in this case, something more is urged upon the Court. In effect, the Court is invited to confirm that the trial judge’s medical diagnosis was correct. That is not permissible. Even if recourse was had to medical dictionaries and anatomical tables, we could not be satisfied that our interpretation of such matters would be accurate, or whether there would be other matters that needed to be taken into account before drawing any conclusion. More importantly, the parties would not then be afforded the opportunity to make submissions in respect of any matter upon which the Court might reach a particular conclusion. The error in the Court taking such a course is obvious.

58 The fundamental point is that a court must make a determination on the evidence. The District Court is not a court of specialist jurisdiction and the principles and practices that apply in such courts do not apply. Those principles and practices were discussed in JLT Scaffolding International Pty Ltd (In Liq) v Silva (New South Wales Court of Appeal, 30 March 1994, unreported), where Kirby P stated, at 12:

“The appeal comes to this Court from a specialised Tribunal which is dealing with compensation cases and conflicting lay and medical evidence every day. The flavour of the expertise of the Compensation Court can be found in the judgment under appeal. Medical conditions, unfamiliar to a lay body are stated in the judgment without definition simply because those practising in the Compensation Court are, or are taken to be, familiar with the medical terms used and the ordinary and oft repeated conflicts of medical opinions expressed. It can be inferred from the establishment of a specialised Compensation Court (one might say especially given the abolition of such bodies elsewhere in Australia) that the Parliament of this State has entrusted the decision making in (relevantly) questions of medical causation and the aetiology of incapacity to a specialist tribunal comprised of specialist members whose expertise is refined by the repeated performance of their tasks.”

59 The District Court has such jurisdiction as is conferred by statute. That includes jurisdiction in actions in negligence as was the case here. It cannot be denied that judges gain enormous experience in determining such matters. However, that experience is in assessing the credit of witnesses; in determining what evidence to accept or reject; making findings of fact based on the evidence and in applying the law to those facts. Familiarity gained from experience with medical terminology and medical conditions is of undoubted assistance in helping a judge understand the evidence in a particular case. However, such familiarity never makes the judge the expert in the case. This was recognised in Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37, where Ipp AJA (as his Honour then was) commented, at [22], that the trial judge was not entitled, of her own knowledge, to determine whether a MRI scan revealed “significant and severe disc injuries”. However, in that case, there was direct medical evidential support for her Honour’s conclusion.

60 The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated, at 889:

“It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice.”

See also Holland v Jones [1917] HCA 26; (1917) 23 CLR 149; ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; Coombes v RTA [2006] NSWCA 229; Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226.

61 In Ohlstein, Ipp JA observed, at [155], that the risk to a young child in undertaking a guided horse ride and a child’s ability to undertake the ride:

“... should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by the experts ... .”

62 The trial judge in this case had previously been a judge in the Compensation Court, which was judicially recognised as a court of specialist jurisdiction. At [5], his Honour referred to his thirteen years’ judicial experience, during the majority of which he “was involved solely in personal injury litigation”. His Honour added:

“Since my statutory translation to the District Court some three and a half years ago I have spent approximately one-third of my time still being involved in personal injury litigation.”

63 Having regard to his Honour’s experience in a specialist court, it is useful to have regard to the principles governing judicial fact-finding, as they affect not only the extent to which the judicial officer can use such knowledge, but also the manner in which litigation is conducted in a particular court or tribunal. Those principles are discussed above. Their application to the present circumstances is the matter in point.

64 Even if a particular judge sitting in a court of general jurisdiction is experienced in adjudicating medical cases, that experience does not replace the requirement to base findings on the evidence. A court cannot assume that its knowledge of any particular matter is correct, even if the individual judge has a great deal of experience dealing with, for example, medical issues, as was the case here. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 it was said that such a process involved an error of law. Underlying that error is a fundamental breach of procedural fairness. A party is not afforded procedural fairness where a trial judge makes findings of fact based upon that judge’s own purported knowledge or understanding of matters that do not form part of the evidence.

65 I have put that proposition in blunt terms, because it is the underlying fundamental principle upon which courts must act. Procedural fairness does, however, take its colour and hue from the particular circumstances at hand. Thus, a specialist tribunal will have greater leeway in applying its specialist knowledge, either because the constituting statute so provides, or because the parties are taken to understand its practices. Such tribunals are often the sole and final determiners of fact. Likewise, a trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge’s understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge’s acting on that understanding.

Rejection of medical opinions

66 The appellant also complained that the trial judge erred in rejecting Dr Bleasel’s opinion that muscle wasting found in the appellant’s lower left leg was consistent with L5 nerve root damage: ground 5. This challenge has been dealt with in part above and for the same reasons should be upheld

Findings of feigning based on the trial judge’s own knowledge of medical tests

67 The appellant submitted that his Honour misunderstood one of the tests that was conducted by Dr Papatheodorakis (a straight leg raising test) and on the basis of that misunderstanding, made the findings that the appellant was feigning his disability and that he failed to cooperate with doctors during the course of medical examinations undertaken to assess his degree of disability for the purposes of his claim. Dr Papatheodorakis was the medical practitioner appointed to undertake the MAS assessment.

68 This particular complaint is articulated in grounds 6-8 of the grounds of appeal.

69 Dr Papatheodorakis recorded the appellant’s complaints as being low back pain, including occasional “pins and needles” through the whole of his left lower limb, associated with occasional weakness about both lower legs; and occasional radiation of the pain down either his right or left leg, although this was not experienced as frequently as had previously been the case. Dr Papatheodorakis recorded a discrepancy in straight leg raising tests.

70 Dr Papatheodorakis considered that the appellant appeared genuine in his presentation, although he also noted inconsistencies during clinical examination. Dr Papatheodorakis was of the opinion that the appellant was depressed and “exhibited a significant non-organic (non-injury) component to his presentation” which he felt was a major cause of the appellant’s alleged persistent ongoing chronic pain symptoms.

71 His Honour noted, at [89], that it was significant that the “straight leg raising was sixty degrees bilaterally on the Lasegue’s test but was ninety degrees on Hoover’s test”. His Honour stated this was “clear evidence of feigning”. There was, however, no reference by Dr Papatheodorakis in his report to either “Lasegue’s test” or “Hoover’s test”. Nor did Dr Papatheodorakis make any finding that the appellant was feigning, that is, deliberately fabricating his symptoms.

72 The appellant’s specific complaint about his Honour’s reference to Hoover’s test was that his Honour erred in the identification of the test undertaken by Dr Papatheodorakis. He contended that a reference to medical dictionaries, such as “Butterworths Medical Dictionary”, 2nd ed; or “Schmidt’s Attorneys’ Dictionary of Medicine”; indicate that “Hoover’s test” is performed with the patient lying on their back and being instructed to elevate one leg, at which time the examiner places their palm under the heel of the other leg, to test for pressure against the examiner’s palm. It was submitted that nowhere in Dr Papatheodorakis’ report is a reference made to a test of this nature.

73 The respondent did not accept that this description of “Hoover’s test” was correct, although he did not assert that it was a wrong reference. The respondent conceded, however, that it is apparent that his Honour relied upon his own knowledge and interpretation of the medical tests undertaken by Dr Papatheodorakis. However, he said that if his Honour was in error in naming the test, then that simply demonstrated that his medical knowledge was less than perfect. That submission, in itself, demonstrates the problem with his Honour relying upon his own medical knowledge to determine the appellant’s claim.

74 Leaving that aside however, the respondent’s response to this particular complaint is that whatever the test was properly called, it was apparent that the doctor undertook a test which showed clear evidence of non-cooperation, or feigning, on the part of the appellant.

75 The appellant’s reference to medical dictionaries can be put to one side, because there is another difficulty in the respondent’s submissions. Dr Papatheodorakis did not state that the appellant was uncooperative or that he was feigning. Rather, he reported his clinical findings in these terms:

“Straight leg raising was to 60 degrees for both lower limbs in the supine position, though on sitting, Mr Strinic could straight leg raise to 90 degrees for both lower limbs and he did not exhibit or complain of any discomfort.”

76 Then, in referring to the appellant’s “consistency of presentation”, Dr Papatheodorakis commented:

“In my opinion, I feel that Mr Strinic is depressed, and though I feel he was genuine in his presentation, he exhibited a significant non-organic (non-injury) component to his presentation, which I feel is a major cause of his present alleged, persistent ongoing chronic pain symptoms.”

77 Senior counsel for the respondent eventually conceded that neither Dr Papatheodorakis, nor any other doctor, stated that the different results in the two straight leg raising tests was evidence of feigning.

78 This raises the critical point in relation to these particular grounds of appeal. A finding that a person is “feigning” at least in the terms made by his Honour, is a definitive adverse credit finding. His Honour, at [89], not only made a finding that the results of the straight leg raising test was “clear evidence of feigning”, he returned to this as part of his consideration of the appellant’s credibility, at [104]-[109]. His Honour considered that the appellant was depressed in the witness box, which made it hard to gauge his credibility. His Honour described, at [104], the appellant’s demeanour as “quite flamboyant” in describing his pain levels and that, likewise, he was “flamboyant in telling medical practitioners about the level of his pain”, but that “flamboyance in expression” could be forgiven, especially where English was not the appellant’s first language.

79 At [105], his Honour made his ultimate credit finding in these terms:

“However, exaggeration in verbal expression is very different to exaggeration and feigning of physical signs when being examined by medical practitioners. Here it is very evident to me that the [appellant] has feigned on medical examination and failed to cooperate with doctors. That is inexcusable. Of course the [appellant] only hurts himself by so doing, because it causes medical practitioners to say that there is nothing wrong with him because they believe him to be malingering, even if they do not say that in those terms.” (Emphasis added)

80 A trial judge’s assessment of the credit of a witness is protected by the advantage that the judge has in seeing and hearing the witness. There are subtle influences of demeanour to which an appellate court is not privy. The principles that govern such an assessment are well rehearsed: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1. It is a different matter where the assessment of credit is based on wrong factual findings, unless the wrong fact-finding is irrelevant or not so critical as to undermine the advantage that the trial judge otherwise has in assessing the evidence of the witnesses.

81 The issue here is not, directly at least, one of an adverse credit finding based on erroneous findings of fact. Rather, the adverse credit finding was based on a finding that the trial judge made from his own medical knowledge. I have already referred to the principles governing a trial judge’s fact-finding obligations in a court such as the District Court. His Honour’s assumptions and findings in respect of the straight leg test and the conclusion he reached breached that obligation. As the differential result was a critical matter in the assessment of the appellant’s claim, I would consider that his Honour’s reliance on his own medical knowledge to make the adverse credit finding was sufficient to impugn the judgment.

82 The respondent contended, however, that this finding was supportable (as discussed below), although he accepted his Honour wrongly labelled the straight leg raising test done in a sitting position as “Hoover’s test”. It was argued that this is of little significance, given that Dr Papatheodorakis clearly noted inconsistencies during the examination of the appellant. In particular, Dr Papatheodorakis observed that the appellant moved his head and back freely in conversation when distracted, but otherwise sat stiffly; movements of the cervical spine were performed slowly and deliberately, although this was less noticeable in conversation; there was a superficial tenderness to light touch in a generalised non-reproducible distribution about the lumbar-spinal region; lumbar spinal movements were globally reduced, although this was not reproducible to repeated testing in any specific movement; and, there was the difference in the straight leg raising test in the two different positions.

83 It was apparent therefore, on the respondent’s submission, that Dr Papatheodorakis considered that these inconsistencies did not support the appellant’s complaints of “persistent significant injuries”, because he found there was no clinical evidence in relation to the cervical or lumbosacral spinal regions. The respondent pointed out that although Dr Papatheodorakis accepted that the appellant was genuine, he thought that there was a non-organic aspect to his presentation, to which I have already referred. It followed on this submission that it was Dr Papatheodorakis’ view that the appellant, whether intentionally or not, was feigning his injury and there was ample evidence for the trial judge to conclude the appellant was not a reliable historian.

84 The respondent submitted that his Honour’s finding was reinforced by other matters, such as the appellant’s assertion that his condition was getting worse, the inconsistent history regarding his ability to sleep and the non-anatomical complaint of numbness in the whole leg. The respondent also asserted in his written submissions that Dr Papatheodorakis found feigning. This last submission is not correct and may be ignored. The other matters relied upon are subject to challenge by the appellant. I have concluded, however, that these particular matters are not of great significance in the overall challenge to the judgment and can be put to one side for the purpose of determining whether there is sufficient evidence to support the judgment.

85 More relevant is the respondent’s reliance on the opinions of Drs Limbers and Parameswaran, whose evidence the trial judge accepted. Dr Limbers was of the opinion the appellant’s symptoms were “out of proportion and thus inconsistent with clinical findings”. Dr Parameswaran was not convinced that the appellant’s symptoms were genuine. The respondent also relied upon his Honour’s finding that, having observed the appellant in the witness box, his Honour concluded that he was “quite flamboyant” in relation to his evidence regarding the level of his pain.

86 His Honour was entitled to accept the evidence of these two witnesses, as well as to act upon his own observations of the appellant in the witness box. However, one of the bases upon which his Honour held that the appellant “feigned on medical examination” was founded on the results of the straight leg raising tests, referred to by his Honour at [89]. It is the strongest finding his Honour makes in relation to the issue of the appellant’s credit. It is likely, indeed probable, that his Honour’s view on this: viz the reference to “clear evidence” led him to more readily accept the opinion of Dr Parameswaran. Accordingly, even though there was other evidence upon which his Honour could rely in relation to the appellant’s credit, one of the critical bases upon which he made that finding cannot be supported.

87 Another basis upon which his Honour made his adverse credit finding against the appellant derived from the histories given to Drs Limbers and Parmeswaran. At [41], his Honour noted Dr Limbers’ opinion that the appellant’s symptoms were “out of proportion to the findings on examination” and “inconsistent with the clinical findings”. His Honour also considered, at [42], that the complaint made to Dr Parameswaran, who saw the appellant on the same day as did Dr Limbers, of “pain running down both limbs, the left being more severely affected than the right”, was “quite inconsistent with what he told Dr Limbers”.

88 The complaint made to Dr Parameswaran, as recorded in his report of 27 February 2001, was that the appellant said “he now has pain running down both lower limbs, the left worse than the right”. The complaint recorded by Dr Limbers was that the appellant “did not suffer from radiating leg pain although occasionally he feel [sic] some funny feeling in the left leg, mainly around the left thigh”.

89 There is a difference between these two statements and his Honour was entitled to take the difference into consideration. The complaint to Dr Parameswaran was of pain running down both lower limbs, whereas the complaint to Dr Limbers was of a “funny” feeling in the left leg only. It is improbable that the appellant said to Dr Limbers in express terms that “he did not suffer from radiating leg pain”. That description is undoubtedly the doctor’s medical interpretation of the complaint that was made. It is not clear, however, whether his Honour’s finding of inconsistency between the two complaints relates to a complaint of no radiating pain, as compared to pain running down both lower limbs (that is, radiating pain), or whether the inconsistency relates to the reference to both legs, as compared to the left leg only. Neither medical report indicates what questions were asked to elicit the symptoms recorded, which might have assisted in assessing whether there was a relevant difference in the history given by the appellant.

90 Accordingly, whilst it was open to his Honour to have regard to the differences in the two reports, his finding of significant inconsistency between the symptoms recorded involves unexplained assumptions and therefore diminishes the force of the finding: see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. This is the more so when regard is had to the reports of Drs Bleasel and Dixon. The history taken by Dr Bleasel was of pain in both legs, particularly the left and pins and needles in the left leg, particularly in the morning when it felt almost completely numb (see at [40] above). That description is not relevantly different from that recorded by Dr Limbers. Dr Dixon’s evidence was also to a similar effect (see [53] above). Likewise, Dr Bleasel’s evidence was of a report of pain in both legs, but, more particularly, the left. A consideration of the evidence as a whole does not, therefore, in my opinion, throw up an inconsistency of the significance that his Honour appears to attach to it.

91 However, accepting that the finding his Honour made in relation to the inconsistency in the reports of Drs Parameswaran and Limbers was open to him, that does not overcome the difficulty that I have discussed in respect of his Honour’s finding that the appellant “feigned” symptoms, when that was not a finding made by the reviewing doctor.

92 A finding that the appellant was deliberately fabricating his symptoms, which was the finding made by the trial judge, needs to be made with care. It is, in effect, a finding of fraud. It was open to his Honour to reject the appellant’s case, in whole or in part, given the evidence of inconsistent presentations to various doctors. However, the effect of his Honour’s finding was that the appellant had deliberately concocted symptoms. For the reasons that I have given, that finding was not properly based in the evidence and for that reason, error in his Honour’s reasoning process has been demonstrated.

Trial judge’s interpretation of the radiological evidence based on his own knowledge

93 The first complaint made in this regard was that the trial judge erred in concluding that because of the presence of reactive sclerosis on the L5/S1 vertebra said to be shown on the CT scan of the low back, the central herniation of the lumbosacral disc also shown on the scan was of longstanding constitutional origin: ground 14.

94 The first CT scan of the appellant’s lumbar spine was undertaken on 23 March 2000. The results of this scan were reported by Dr Phillips as follows:

“Scans of the L3/4, L4/5 and L5/S1 levels were obtained.

There is moderate narrowing of the L5/S1 disc space with reactive sclerosis on the adjacent end plates. There is a small central herniation of the L5/S1 disc compressing the adjacent margin of the thecal sac and there is a mild degree of bony canal stenosis at the lumbosacral level due to developmentally short pedicles.

The L3/4 and L4/5 discs appears normal.

No other significant bony abnormality and no degenerative change seen in the facet joints.”

95 The trial judge referred to this scan at [15]. His Honour, at [16], commented that one of the frequent problems faced in medicolegal questions was the use of terminology. That is an unremarkable observation and the Court needs to understand the medical evidence so as to make appropriate findings of fact. His Honour then proceeded to define a number of terms, such as “herniation” and “lesion” and “protrusion”. It is not apparent where his Honour derived these various definitions, although having regard to his Honour’s overall approach in the case, it would seem they were from his own knowledge. His Honour then said, at [16]:

“The important aspect in medicine is whether the disc material, whether it be the annulus fibrosis or the nucleus pulposis compresses the theca or nerve root causing a neurological deficit. A disc herniation can touch for example the theca or nerve root without necessarily compressing it and therefore causing symptoms.”

96 Senior counsel for the respondent frankly conceded there was no medical evidence before the Court specifying the anatomical features of discs and compression of nerve roots. He conceded that his Honour appears to have relied upon his own medical understanding in making this statement. However, he defended the respondent’s position saying that the appellant had not taken the Court to any material to demonstrate that his Honour’s understanding of these matters was wrong.

97 His Honour commented, at [17], that the results of the scan do not necessarily mean that the appellant had a problem at the lumbosacral level causing symptoms. His Honour considered that the scan indicated the appellant had pre-existing degenerative disc disease at the lumbosacral level and opined this was perhaps due to the developmentally short pedicles of the vertebrae. His Honour also expressed the opinion that if there were a frank injury to a disc, it would take at least six months for any reactive bony changes to show on X-ray, such as, for example, reactive sclerosis or damage to the vertebrae.

98 Senior counsel for the respondent frankly conceded there was no evidence that where there was a frank injury to a disc it would take six months for a reactive bony change to appear on X-ray. He also accepted that his Honour’s comments went well beyond matters of common knowledge, but said they were a matter of derived knowledge. By this, I understand the respondent to mean that there was other evidence in the case that supported his Honour’s observations in relation to the CT scan in the reports of Drs Limbers and Parameswaran, both of whom considered the CT scan and expressed the opinions that the appellant had “normal or attritional changes”: Dr Limbers; or “some degenerative changes”, with “minor disc bulging and prolapses” at the low back which were “not significant”: Dr Parameswaran. Reliance was also placed upon the evidence of Dr Papatheodorakis, who considered that the appellant had evidence of degenerative changes, although he was of the opinion that the degenerative condition had been aggravated by the appellant’s soft tissue injury, which was possibly discogenic in nature.

99 The respondent also contended that his Honour’s observation relating to a “frank injury to a disc” was correct in that the injury would not show on X-rays. The difficulty with this submission is that his Honour appears to consider that an injury to a disc would eventually result in reactive bony changes, which would take some time to show up on X-ray. There was no evidence to that effect.

100 The next complaint challenged the manner in which his Honour dealt with the evidence of two MRI scans and Dr Mahony’s diagnostic interpretation of the first of those scans: ground 15.

101 Dr Mahony ordered a MRI scan which was performed on 5 May 2000 and reported by Dr Adler.

102 Dr Mahony reviewed this report for the purposes of his examination of the appellant on 26 May 2000. In his report to Dr Yenson dated 31 May 2000, Dr Mahony expressed the opinion that the appellant had an “associated discogenic lesion at the C6/7 level”. There was no reference to a discogenic lesion at this level in the MRI.

103 His Honour dealt with this at [20]-[23]. At [20], his Honour, having referred to the MRI report in respect of the C7/T1 level stated:

“That radiological investigation merely suggests degenerative disease in cervical spine with reactive bony changes.”

104 His Honour then looked at the report in respect of the L3/4 level and stated, at [21], that it too was “merely” a “reporting of degenerative disc disease”, which his Honour added, was “clearly long standing”. His Honour said, at [22], that the “annular tear” at L3/4 “might be traumatically induced but it could be the result of the inexorable process of degenerative disc disease”. His Honour went on to describe why an annular tear was important.

105 The respondent conceded there was no evidence to support these comments and findings.

106 His Honour, at [23], was critical of Dr Mahony’s opinion, that the appellant had a “discogenic lesion at the C6/7 level” stating that the “doctor provides no clinical findings to support the diagnosis”. However, in a later MRI scan taken on 25 June 2001 and reported on by Dr Houang, it was reported that:

“The C6/7 disc shows a moderate posterolateral disc protrusion towards the right side indenting the thecal sac and possibly displacing the C6/7 nerve root”. (Original emphasis)

107 This report directly confirmed Dr Mahony’s earlier diagnosis. His Honour did not cross-reference these two aspects of the evidence, or consider whether Dr Houang’s report was relevant to Dr Mahony’s view.

108 Later in his judgment, at [56], his Honour referred to Dr Houang’s report. In doing so, however, he noted that Dr Houang had deleted the word “possibly” when referring to the displacement of the C7 nerve root. His Honour’s comment calls for consideration.

109 Dr Houang, under the heading, “Findings” reported as follows:

“The C6/7 disc shows a moderate posterolateral disc protrusion towards the right side indenting the thecal sac and possibly displacing the C6/7 nerve root.” (Emphasis added)

Under the heading, “Conclusion”, Dr Houang reported in the terms to which I have referred above.

110 His Honour stated, at [56]:

“That MRI scan is not consistently reported with the earlier MRI scan of the neck.”

111 His Honour’s comment either evidences a criticism of Dr Houang’s report, or alternatively, is a statement that there were inconsistent MRI findings. In either case, the comment may not be a fair one. There is a distinction between the results obtained on clinical testing and a doctor’s conclusion drawn from the results of the clinical tests. A conclusion involves the formation of an opinion drawn from the clinical results. His Honour does not appear to have appreciated the distinction. Leaving that aside, there are two other matters of relevance relating to his Honour’s comment. First, having been dismissive of Dr Mahony’s evidence at [23], his Honour does not appear to have seen the necessity of considering that evidence in conjunction with the other evidence in the case. This does not mean that his Honour was required to accept the evidence. However, his failure to make the connection between the two pieces of evidence does indicate a deficiency in his Honour’s reasoning process.

112 Secondly, it does not necessarily follow that tests conducted at different times, with differently reported results, are inconsistent. They are different and the differences undoubtedly have some relevance. To say they are “inconsistent” involves an interpretation that does not derive from the reports themselves. It must have been his Honour’s own interpretation. Again, as there was no other medical evidence to support that interpretation, his Honour must have relied upon his own knowledge and interpretive skills. For the same reasons as have been given throughout this judgment, that course was not open to him. A personal interpretation of an MRI not properly based in the evidence is not a permissible fact-finding process available to a judicial officer in a case such as this.

113 The respondent contended, however, that the problem with this challenge to his Honour's finding is that it assumes that the report of the June 2001 MRI was evidence of actual, as opposed to possible, compromise of the nerve roots. The respondent said that it is only actual compromise of nerve roots which can cause symptoms. The respondent submitted that the assumption upon which the appellant's submission was based was erroneous for two reasons. First, the June 2001 MRI did not provide evidence of nerve compromise because it only used the word “possibly”. Secondly, there was “ample medical opinion” post dating the June 2001 MRI, which supported the trial judge’s finding that there were no clinical results to support a conclusion that there was traumatic pathology in the appellant’s cervical spine as a result of the accident.

114 The respondent relied in support of this submission upon the reports of Drs Dixon, Papatheodorakis and Ayscough. It was said that Dr Dixon, although having available to him all of the radiological evidence, did not refer to any C6/7 pathology. Dr Papatheodorakis only referred to degenerative changes. Dr Ayscough did not consider that the radiological evidence demonstrated any compromise of the spinal canal or nerve roots at the cervical level (although it is not clear whether Dr Ayscough had the June 2001 MRI report). It followed on the respondent’s submission that the trial judge was not compelled by the medical evidence to accept Dr Mahony’s opinion in May 2000 that there was a discogenic lesion at C6/7.

115 This submission falls into the same category as the respondent made generally, namely, that there was evidence that supported his Honour’s conclusion. However, in circumstances where his Honour’s conclusions were based in a substantial way on his own understanding of medical matters, his Honour’s underlying fact-finding was compromised and the appellant was denied procedural fairness.

Other misinterpretations of the radiological evidence

116 His Honour, at [48], commented on a second MRI scan of the appellant’s lower back performed by Dr Houang on 18 April 2001. Relevantly, that report states:

“At the L3/4 level there is some narrowing of the disc with a small protrusion towards the left of mid line with annular tear indenting the thecal sac. The foramina are adequate.” (Original emphasis)

Dr Houang’s report concluded:

“There are disc protrusions ... most pronounced at the L4/5 level towards the left side displacing the L5 nerve root and indenting the thecal sac. The protrusion at the L3/4 level shows annular tear.” (Original emphasis)

117 His Honour commented on this as follows, at [48]:

“Dr Houang reports that investigation as still showing an annular tear at the L3/4 level ‘indenting the thecal sac’. How a tear in the annulus can indent the thecal sac I do not know.”

118 This statement is a misreading of Dr Houang’s findings, as is apparent from his conclusion, quoted at [109] above. It may be that as a matter of better expression, Dr Houang, when referring to his findings in respect of L3/4 should have inserted commas, both before and after the phrase, “with annular tear”. Properly punctuated, the finding is not as his Honour found and Dr Houang’s opinion is clearly stated in the conclusion of the report.

119 It may be that nothing flows from his Honour’s comment, as he added:

“The doctor might be referring to nuclear material from the disc extruding through the tear and indenting the theca.”

120 However, the difficulty that then arises is that his Honour, having seen two possible interpretations in Dr Houang’s report found that the:

“... conclusion to be drawn from the verbiage used by Dr Houang is that the appearance was equivocal.”

This observation is incorrect, as the appearance at L3/4, on Dr Houang’s finding, was not “equivocal”.

121 His Honour appears to have found the other reports on this MRI also “equivocal”. This is apparent from his Honour’s reference, at [48], to the findings regarding L5, in respect of which Dr Houang stated that the “L5 nerve root appears to be displaced” (emphasis added). His Honour commented, at [48], that this terminology was “rather odd for a radiologist to use” and that, “[e]ither he sees something in the radiological investigation or he does not”. However, there was no evidence that Dr Houang used inappropriate medical or radiological terminology in reporting on his findings. This criticism by his Honour, therefore, lacks an evidentiary foundation.

Other complaints

122 The appellant also complained that his Honour erred in rejecting, by implication, Dr Lawson’s finding that the left ankle tendon reflex was slightly diminished: ground 17.

123 The appellant was referred to Dr Lawson, consultant physician, on 6 July 2000. Dr Lawson reported that on examination, the “left ankle tendon reflex [was] slightly diminished”. Dr Lawson also stated that the investigations had revealed evidence of “intervertebral disc damage”, that appeared “to reflect traumatic disc damage as a result of the motor vehicle injury.” His Honour, at [29], noted that this was in relation to the “low back”. His Honour also noted that Dr Mahony had found the left ankle tendon reflex to be normal, both on 26 April 2000 and 1 September 2000. His Honour then stated:

“If there truly were muscle wasting of the left leg and a diminution of the left ankle reflex they would be objective signs of organic disability consistent with radiculopathy resulting from a low, lumbar disc lesion, most probably the S1 nerve root from the L5-S1 disc.”

124 The respondent responded to this particular statement by his Honour by pointing out that it was the appellant’s case that he had such objective signs, but that his Honour had rejected that case. He submitted there was ample evidence in the respondent’s medical reports to enable him to do so.

125 This paragraph of his Honour’s reasons may simply be a statement of the issue in the case. Alternatively, it could be a finding by his Honour that there were no such objective signs. Given the uncertainty as to what his Honour meant, I would ignore this paragraph as not clearly demonstrating an improper approach to the fact-finding process.

126 Another complaint was that the trial judge erred in attaching significant weight to the fact that on 14 March 2000, the appellant told Dr Yenson that his sleeping was satisfactory, whereas on 27 February 2001, he told Dr Limbers that he was not able to sleep well: ground 3. In the overall context of the appeal, this challenge was minor. As it is not decisive to the outcome of the appeal, it is not necessary to deal with it.

Conclusion

127 An examination of his Honour’s judgment demonstrates that on numerous occasions and in respect of critical matters, his Honour used his own medical knowledge and made findings in respect of those matters. The respondent appropriately conceded that his Honour had done so. However, he sought to resist the appellant’s complaint about such matters, on three bases.

128 First, that the appellant had not shown that his Honour was wrong. That argument can be disposed of shortly. His Honour was not a witness and in particular, was not an expert in the case. He did not constitute a specialist tribunal. Rather, he was a judge constituting a court of general jurisdiction, in a system of adversarial litigation. His duty was to make findings of fact based on the evidence. It is a breach of procedural fairness to make factual findings in the absence of relevance evidence upon which to base those findings. In respect of the matters that I have identified, I consider that his Honour failed to afford procedural fairness. The appellant was thereby denied his fundamental right to the determination of his claim based on the evidence.

129 Secondly, the respondent relied upon other evidence in the case from which his Honour’s findings could be derived. I have spent some time analysing such evidence and do not accept that this is so. There was evidence in the case that supported his Honour’s conclusions. That is a different matter and is the subject of the third basis upon which the respondent argued that his Honour’s judgment could be supported.

130 The respondent contended that there was medical evidence that his Honour was entitled to accept and which he did accept, that did not support the appellant’s case. His Honour was entitled to accept evidence that did not support the appellant’s case. However, it is apparent, and critical to the outcome of the appeal, that his Honour’s acceptance of the medical evidence adverse to the appellant was essentially based upon two matters: one was the appellant’s credit; the other was his Honour’s opinion that the appellant’s symptoms were, in large measure, not organically based. These two matters overlap. The adverse credit finding made by his Honour was based on the appellant’s description of the accident, which his Honour rejected, as well as his feigning and non-cooperation with doctors. I have discussed these matters above and do not propose to repeat them, other than to reiterate that I consider his Honour’s findings are flawed in the way I have described. I would add, however, that in my opinion, his Honour’s conclusion that the appellant feigned his symptoms must also have been based upon his Honour’s reliance on his own medical knowledge, as I have discussed.

131 Accordingly, even though it can be said that there was medical evidence that his Honour was entitled to accept, his Honour’s acceptance of that evidence was dependant upon the rejection of the appellant’s credit. In my opinion, that rejection was flawed. For the reasons I have given, the errors in the trial judge’s reasons constitute a miscarriage of justice. It follows that the appeal should be allowed.

132 This Court is entitled to make a range of orders on an appeal, including making any order that the Court below may make: the Supreme Court Act 1970, s 75A. However, in this case, even if the appellant did not feign his symptoms, there is a real question as to the extent of the appellant’s damage. Given the challenge to the appellant’s credit and the differing opinions of the medical witnesses as to the appellant’s injury and continuing disability, which has not been properly determined at trial level, it is not appropriate for this Court to itself assess damages. The matter will therefore have to be remitted to the District Court for reassessment of damages.

133 Accordingly, I propose the following orders:

1. Appeal allowed;

2. Set aside the judgment and orders made in the Court below;

3. Order that the matter be remitted to the District Court for rehearing;

4. Order that the respondent pay the appellant’s costs of the appeal. The respondent is to have a certificate under the Suitors’ Fund Act 1951;

5. Order that the costs of the first trial abide the outcome of the rehearing in the District Court and be in the discretion of the trial judge on the rehearing.

134 IPP JA: I agree with Beazley JA.

135 BASTEN JA: I agree with the orders proposed by Beazley JA and with her Honour's reasons.

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LAST UPDATED:
25 February 2009