Glen v Sullivan

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Sackville AJA. I agree with his Honour's reasons and with the orders he proposes.

2. [2]

   WARD JA: I agree with Sackville AJA.

3. [3]

   SACKVILLE AJA: This is an appeal from a decision of the District Court (Letherbarrow SC DCJ) entering judgment for the appellant in the sum of $85,566. [1] The appellant claimed damages for injuries sustained on 10 October 2009 when she was struck by a vehicle driven by the respondent. Liability was admitted and the only issue for determination at the trial was the assessment of damages.

4. [4]

   The accident occurred when the appellant, then aged 41, was working as a traffic controller for a company known as Sydney Traffic Control Pty Ltd. The appellant was directing traffic along Thomas Street Ultimo, when she was hit by the respondent’s vehicle. The appellant was struck on the back of her left hand and on her left forearm.

5. [5]

   As the primary Judge observed: [2]

6. [6]

   The stark differences between the parties were reflected in their divergent approaches to the assessment of damages. The appellant’s schedule of damages totalled over $1.7 million. The respondent submitted to the primary Judge that on the “worst case” the award in the respondent’s favour should be no more than $100,000. In substance, the primary Judge accepted the respondent’s view.

The Hearing

1. [7]

   The trial occupied eight hearing days. The appellant gave evidence and was cross-examined at considerable length with a view to establishing, among other things, that she had feigned symptoms and exaggerated her complaints. The appellant’s husband and son gave evidence in support of her case. Their evidence was also challenged by counsel for the respondent.

2. [8]

   The respondent called investigators who had undertaken surveillance of the appellant. Films taken by the investigators on four occasions – 5 October 2010, 2 June 2011, 9 June 2011 and 17 August 2011 – were admitted into evidence. [3] The respondent also called Mr Lindsay, the “owner/director” of the appellant’s employer. Mr Lindsay’s evidence contradicted that of the appellant in relation to her pre-accident work history.

3. [9]

   In addition to the lay evidence, the parties tendered a large volume of records from treating doctors and reports prepared by medico-legal experts. The following treating doctors whose reports were tendered on behalf of the appellant were not cross-examined: Dr Tang, the appellant’s general practitioner; Dr Adler, a consultant in rehabilitation medicine to whom Dr Tang referred the appellant in mid-2010; and Dr Bannan, a psychiatrist who had treated the appellant before the accident and to whom she was again referred following a psychiatric hospitalisation in late 2009. The appellant tendered an expert report from Dr Bodel, an orthopaedic surgeon, who was also not cross-examined.

4. [10]

   Three of the experts who prepared medico-legal reports on behalf of the respondent were not required for cross-examination. They were: Dr Chen, an occupational medicine physician; Dr Powell, an orthopaedic surgeon; and Dr Brown, a consultant forensic psychiatrist. As will be seen, Dr Brown’s reports were the subject of a particularly close examination on the hearing of the appeal.

5. [11]

   Two experts who prepared reports tendered by the respondent were cross-examined by counsel then appearing for the appellant. Dr Roldan is a psychologist and neuropsychologist whose report suggested that the appellant was fabricating her physical and cognitive disabilities. Dr Dalton is a consultant in rehabilitation who opined in his report that the appellant had grossly exaggerated and embellished her physical disabilities.

The Primary Judgment

1. [12]

   The primary Judge delivered a lengthy and careful judgment. In substance his Honour found that although the accident caused some physical and psychological injuries to the appellant, those injuries had resolved long before the trial. The assessment of damages reflected that finding.

2. [13]

   The primary Judge identified [4] the appellant’s credit as a significant issue to be resolved, having regard to the attacks on her veracity by the respondent’s counsel. In this respect, the surveillance footage of the appellant played an important part at the trial.

3. [14]

   According to the primary Judge, the appellant presented in the witness box and in court with her left forearm bent at a 90 degree angle and held protectively against her stomach area with her left hand closed. [5] She had presented in a similar fashion to many, but not all, doctors. By the time the appellant gave evidence she was aware of the surveillance footage.

4. [15]

   The primary Judge found [6] that the surveillance evidence painted a very different picture than that presented by the appellant to the medical practitioners and in court. Specifically, the appellant presented as someone who could not use her left arm or hand at all. By contrast, the surveillance footage showed her using her left hand and arm quite freely.

5. [16]

   The primary Judge considered that the appellant’s demeanour in the witness box was “very poor”. His Honour’s assessment was that the appellant “was willing to give untruthful answers if she thought they would help her case”. [7]

6. [17]

   In addition, it was necessary to take into account other matters that reflected badly on the appellant’s credit. Her evidence as to her pre-accident hours of work and earnings were contradicted by her employment records and other documentation. Her attempts to explain the discrepancies were inconsistent with the evidence of her employer, Mr Lindsay, whom the primary Judge accepted as a “straightforward witness”. [8] Further, Dr Roldan had conducted “Tests of Symptom Validity” in November 2013 and had expressed the opinion that the appellant’s scores on the tests indicated that she was feigning a cognitive disability. [9] The primary Judge accepted Dr Roldan’s evidence for the purposes of determining the appellant’s credit. [10]

7. [18]

   The primary Judge concluded [11] that the appellant’s credit was such that he could not accept her evidence as reliable, especially as to the extent of her injuries and disabilities, unless the evidence was corroborated.

8. [19]

   The primary Judge considered that the evidence of the appellant’s husband was of concern in a number of respects. In particular, his apparent memory lapses and his erroneous evidence as to his wife’s pre-accident working hours cast doubt on his evidence. [12] In his Honour’s view, the son’s evidence was also unreliable. [13]

9. [20]

   The primary Judge addressed in some detail the state of the appellant’s mental health in the period leading up to the accident. The appellant acknowledged in her evidence that she was “very unhappy” in May 2007 when she had been admitted to hospital. [14] She maintained that she was “feeling good” in the period immediately before the accident. However, this claim was contradicted by a “K10” self-assessment form that the appellant had completed in May 2009, approximately five months before the accident. Her score of 39 out of 50, so the primary Judge found, suggested that the appellant was experiencing serious depressive symptoms at the time. This was reflected in the appellant recording on the self-assessment form that she felt hopeless, depressed and worthless for most of the time during the preceding four weeks. [15]

10. [21]

    On the basis of this and other evidence the primary Judge was satisfied [16] that the appellant had:

11. [22]

    The primary Judge recorded [18] that the respondent did not dispute that the appellant developed a “complex regional pain syndrome in her left hand” as a consequence of the accident. The respondent also accepted [19] that the appellant’s psychiatric admission to hospital between mid-November and early December 2009, the first of six post-accident hospitalisations, was causally related to the accident. However, the respondent disputed that the accident was responsible for any of the appellant’s five subsequent psychiatric admissions that took place between March 2010 and May 2013.

12. [23]

    His Honour thought it surprising that none of the medical practitioners who had treated the appellant and none of the medico-legal experts who had been asked by the appellant’s solicitors to prepare reports had seen the surveillance footage. [20] This omission had been rectified during the trial.

13. [24]

    Dr Bodel, an orthopaedic surgeon, prepared a report in October 2011 stating that the appellant had developed symptoms of complex regional pain syndrome. He prepared a supplementary report after seeing the surveillance footage. Dr Bodel thought that the appellant’s use at times of her arm in a fairly normal fashion was not inconsistent with her clinical presentation. [21]

14. [25]

    Dr Klug, a psychiatrist, first saw the appellant in November 2011. His view was that the appellant was suffering from a severe and unremitting complex regional pain syndrome. From a psychiatric perspective, Dr Klug acknowledged that the appellant had received a pre-existing diagnosis of a recurrent major depressive disorder. On Dr Klug’s understanding, she had been “very well” at the time of the accident, but had developed severe recurrent depressive episodes thereafter. In his opinion, the accident had profoundly destabilised her mental state. [22]

15. [26]

    In his final report dated 5 May 2014, the same day as he gave evidence, Dr Klug commented on the surveillance footage. He adhered to his opinion that the appellant suffered from “a severe unremitting complex regional pain syndrome involving her left arm” and that she also had a severe and chronic major depressive disorder. He considered that both of these conditions were related to the accident. Dr Klug took into account that for about two years prior to the accident the appellant had been “psychiatrically very well”.

16. [27]

    The primary Judge noted that in contrast to the appellant’s experts, the medico-legal specialists who assessed the appellant on behalf of the respondent had all seen the surveillance footage. His Honour said that it was: [23]

17. [28]

    The primary Judge recounted at length the evidence of the respondent’s medical experts. In particular, he carefully examined the psychiatric reports prepared by Dr Brown in March 2011, June 2011, August 2011, September 2011 and October 2013.

18. [29]

    In her first report of March 2011, Dr Brown’s provisional opinion was that the appellant had probably experienced a mild exacerbation of her pre-existing chronic depressive disorder and had developed a new onset chronic pain disorder as the result of the accident. However, Dr Brown said that the appellant “impressed as being unencumbered by any significant degree of abnormal illness behaviour at present”. [24] At this stage, Dr Brown had not seen any surveillance footage.

19. [30]

    By the time Dr Brown prepared her report of September 2011, she had seen the surveillance footage taken in October 2010 and August 2011. Dr Brown’s view was that the surveillance footage “raised the possibility of malingered behaviour”. She also noted that if the appellant did not have the types of restrictions she had previously reported: [25]

20. [31]

    The primary Judge pointed out [26] that Dr Brown in her final report of 31 October 2013 questioned Dr Klug’s view that the appellant did not suffer from a pre-existing borderline personality disorder. Dr Brown also emphasised the significance of the surveillance footage to Dr Klug’s opinion that the appellant’s prognosis was linked to her physical condition. Dr Brown had concluded that if the appellant’s arm function was adequate to undertake daily living activities there was a much less substantial basis for considering that she was significantly incapacitated from a psychiatric viewpoint as a result of the accident.

21. [32]

    The primary Judgement returned [27] to Dr Roldan’s evidence that the tests he had administered indicated that the appellant was feigning cognitive incompetence. [28] Dr Roldan had reached this conclusion partly because the tests administered to the appellant were so simple that even severely disturbed psychiatric inpatients produced much better scores. His Honour found Dr Roldan’s explanation as to the working of the test quite clear and he was satisfied [29] that the appellant’s results showed “a very significant degree of exaggeration”.

22. [33]

    The primary Judge stated that the question of causation was governed by s 5D of the Civil Liability Act 2002 (NSW) (CL Act). As there was no issue concerning “scope of liability”, [30] the only issue concerned factual causation – that is, whether the appellant would not have suffered the particular harm but for the respondent’s negligence. [31]

23. [34]

    After recounting the respondent’s unfortunate history of mental health problems, the primary Judge found that the appellant was: [32]

24. [35]

    His Honour accepted [33] that the accident was frightening and left the appellant in considerable shock and caused injury to her left hand. She had developed a complex regional pain syndrome in her left hand and wrist as a result of the accident, which caused her psychiatric condition to seriously destabilise. However, the primary Judge was satisfied [34] that by October 2010 the appellant was significantly misrepresenting the level of her symptomology to most of the treating doctors and continued to do so thereafter.

25. [36]

    His Honour found [35] that by October 2011, the respondent was no longer suffering from complex regional pain syndrome or any other physical condition that would render her unfit for her pre-accident employment or otherwise affect her pre-accident earning capacity. His Honour further found that any aggravation of the appellant’s pre-accident psychiatric condition had ceased by October 2011. The psychiatric problems from which she suffered after that date were the consequence of and caused by her pre-existing condition.

26. [37]

    It was common ground at the trial that the appellant was not entitled to damages for non-economic loss as she did not satisfy the statutory threshold. [36] The primary Judge assessed damages at $85,566, made up as follows:

Submissions

1. [38]

   The oral submissions made on the appellant’s behalf were somewhat more confined than the written submissions. Mr Sheldon SC, who appeared with Ms Welsh for the appellant, did not challenge the findings made by the primary Judge that:

2. [39]

   Mr Sheldon’s principal submission was that the primary Judge erred in failing to disentangle the non-compensable causes of the appellant’s continuing psychiatric disabilities from the compensable causes. Once it was accepted that there was a causal connection between the accident and the appellant’s subsequent psychiatric disabilities, at least for some time, it was the respondent who was required to exclude the accident as a contributing cause of her post-accident condition. The primary Judge had simply applied s 5D of the CL Act and had overlooked the principle established by cases such as Watts v Rake. [38]

3. [40]

   Mr Sheldon submitted that even discounting Dr Klug’s opinion and accepting that the physical consequences of the accident had resolved by 2011, there was affirmative evidence linking the appellant’s continuing psychiatric disabilities to the accident. The starting point was the respondent’s concession that the appellant’s psychiatric hospitalisation in late 2009 was attributable to the accident and the finding that the appellant suffered complex regional pain syndrome for some time after the accident. The undisputed fact that the appellant had been hospitalised on five occasions after 2009 supported her claim that her continuing psychiatric disabilities were causally related to the accident.

4. [41]

   In these circumstances, so Mr Sheldon argued, the respondent had failed to adduce evidence satisfying the requirement of Watts v Rake. The evidence relied on by the respondent was equivocal and left the relationship between the accident and the appellant’s psychiatric condition uncertain. Specifically, the respondent’s reliance on the evidence of Dr Brown was misplaced because she had never ruled out the causal association suggested by the evidence adduced on behalf of the appellant.

5. [42]

   Mr Sheldon further submitted that the primary Judge’s finding that the appellant’s reporting of symptoms was unreliable overlooked that her complaints to doctors had been variable before the surveillance footage was taken. This, so it was argued, minimised the significance of the apparent inconsistences between the appellant’s presentation to the medical practitioners and the freedom of movement she displayed in the films taken by the investigators.

Reasoning

1. [43]

   In Watts v Rake, the defendant contended that part of the plaintiff’s condition at trial was traceable to causes other than the accident and that even if there had been no accident he would have become prematurely incapacitated by reason of a pre-existing arthritic condition. Dixon CJ said that there is a presumption in the plaintiff’s favour that the defendant must overcome: [39]

2. [44]

   Menzies J stated the principle as follows: [40]

3. [45]

   The language used by Dixon CJ and Menzies J perhaps suggests that in the situation they describe, the burden of persuading the trier of fact shifts to the defendant. In Purkess v Crittenden, [41] however, the High Court made it clear that Watts v Rake should not be interpreted in this way. The joint judgment explained the correct position as follows: [42]

4. [46]

   Windeyer J, who had concurred in Watts v Rake without further reasons, observed in Purkess v Crittenden that the earlier decision had been “misunderstood”: [43]

5. [47]

   In summary, the position can be stated as follows: [44]

6. [48]

   Mr Rewell SC, who appeared with Ms Kumar for the respondent, submitted that the principle stated in Purkess v Crittenden does not apply to the circumstances of the present case. He pointed out that in both Watts v Rake and Purkess v Crittenden, the issue was whether the plaintiff’s pre-existing degenerative condition would have led to incapacity in due course even if the accident had not occurred. Mr Rewell contended that the present case is distinguishable because it does not involve any supervening incapacity. The issue is whether the appellant’s continuing incapacity is attributable to the accident or, as the primary Judge found, is no longer causally related to the accident.

7. [49]

   In my view, notwithstanding the factual difference identified by Mr Rewell, the principle stated in Purkess v Crittenden applies to the present case. There was no dispute at the trial or on the appeal that the accident had caused the appellant to sustain some physical and psychiatric injuries. It was also not in dispute that the appellant continued to suffer from serious psychological disabilities at the date of the trial. In principle, it is difficult to see why the respondent should not have borne the burden of adducing evidence to rebut what Dixon CJ in Watts v Rake referred to as the presumption that the appellant’s continuing disabilities were causally related to the accident. To adapt the language in Purkess v Crittenden, once the appellant made out a prima facie case that her continuing psychiatric disabilities resulted from the respondent’s negligence, the onus of adducing evidence showing that the disabilities were wholly the consequence of the appellant’s pre-existing condition fell on the respondent.

8. [50]

   This conclusion is supported by the facts of Watts v Rake. It is true that one issue in that case was whether the plaintiff would have become incapacitated in due course even if the accident had not occurred. But another issue was whether part of the plaintiff’s “present condition [was] traceable to causes other than the accident”. [46] The Court said that the defendant bore the onus of adducing evidence in relation to both issues.

9. [51]

   It follows that Mr Sheldon is correct to submit that the respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities remained on the appellant.

10. [52]

    The appellant’s submissions at times appeared to come close to suggesting that the respondent bore the onus of proving on the balance of probabilities that the appellant’s continuing psychiatric disabilities were not causally related to the accident. For the reasons I have given, if that submission was advanced it was not correct. However, the appellant’s principal submission is that the respondent did not adduce affirmative evidence tending to prove that the causal relationship between the appellant’s psychiatric injuries and the accident had ceased long before the trial.

11. [53]

    Both Mr Sheldon and Mr Rewell approached this submission on the basis that the primary Judge’s rejection of Dr Klug’s opinion meant that the critical evidence consisted of Dr Brown’s reports. Mr Sheldon contended that Dr Brown’s evidence was equivocal on the issue of causation, while Mr Rewell submitted that Dr Brown’s later reports provided clear and strong evidence in support of the respondent’s position. It is therefore necessary to consider how Dr Brown’s opinions evolved as more information became available to her.

12. [54]

    Mr Sheldon correctly pointed out that in Dr Brown’s first report of 28 March 2011, she accepted that there was likely to be a causal relationship between the accident and the appellant’s continuing psychiatric disabilities. Dr Brown recorded that the appellant had suffered from serious psychiatric disorders before the accident. These included long-term chronic depressive symptoms suggestive of Dysthymic Disorder, punctuated by episodes of major depression. Dr Bannan, the appellant’s treating psychiatrist, had diagnosed her as suffering from borderline personality disorder, which Dr Brown considered to be either an alternative diagnosis or an additional diagnosis, founded on the appellant’s long-term history of intermittent self-harming behaviour and mood instability.

13. [55]

    On the basis of the information available to her at that time, Dr Brown’s view was that the appellant had:

14. [56]

    Under the heading “Causation”, Dr Brown expressed the following opinion:

15. [57]

    By the time she prepared her second report of 10 June 2011, Dr Brown had seen the surveillance footage of 5 October 2010. Dr Brown observed that interpretation of the footage was limited by its quality and distance between the camera and the subject. Nonetheless, Dr Brown considered that if the footage was indicative of the appellant having more movement in her hand than she had indicated to Dr Chen (who had examined the appellant on the same day as the surveillance footage had been taken), “some alterations to the previously offered opinion would be provided”. Dr Brown continued as follows:

16. [58]

    Before preparing her third report of 8 August 2011, Dr Brown saw the surveillance footage of the appellant taken on 2 June 2011. [47] Dr Brown noted Dr Chen’s comment that the DVD footage suggested that there was “an unlikely physiological basis for the symptoms to change from time to time”. Dr Brown expressed the following opinion:

17. [59]

    Mr Sheldon correctly submitted that Dr Brown’s third report, while expressing scepticism about the link between the accident and her psychiatric state, did not unequivocally rule out any such link. But in her fourth report of 28 September 2011, Dr Brown reassessed the position. Her reassessment was based, among other things, on a 55 minute interview with the appellant, a review of the surveillance footage taken between June and August 2011 and consideration of a report prepared by Dr Chen after she had seen the surveillance footage taken on 9 June 2011.

18. [60]

    Dr Brown reported that the interview with the appellant indicated that she was not suffering from Post Traumatic Stress Disorder and did not have a specific phobia of a travel type, both of which had been suggested by some earlier medico-legal reports. Dr Brown continued as follows:

19. [61]

    Dr Brown expressed her “current opinion” in unequivocal terms:

20. [62]

    Dr Brown elaborated on her opinion:

21. [63]

    In Dr Brown’s final report of 31 October 2013, she presented detailed reasons for rejecting Dr Klug’s opinion that the appellant’s psychiatric condition since October 2009 was largely attributable to accident-related sequelae. Among other matters, Dr Brown pointed out that Dr Klug had not had the opportunity to review the surveillance footage. Dr Brown concluded her report as follows:

22. [64]

    Dr Brown’s reports show that she reassessed her opinion as to the relationship between the accident and the appellant’s psychiatric disabilities as more information became available to her. The information included, but was not limited to the surveillance footage. In her fourth report of 28 September 2011, Dr Brown was careful not to express a concluded view as to whether the appellant was malingering, although she thought this was a strong possibility. It is quite clear, however, that if the appellant’s account of her physical constraints and other symptoms in and after 2010 was untrue (as the primary Judge found), Dr Brown’s opinion was that the appellant was not suffering from an aggravation of her pre-accident condition or any other psychiatric disabilities as a consequence of the accident. Dr Brown’s reports therefore provided probative evidence that any causal relationship between the accident and the appellant’s psychiatric disabilities had ceased at least by October 2011. This was the primary Judge’s finding.

23. [65]

    Dr Brown’s reports were not the only evidence affirmatively supporting the respondent’s case on causation. Dr Roldan’s evidence was vigorously challenged at the trial, but it was accepted by the primary Judge. In his detailed report of 5 December 2013, Dr Roldan stated his conclusions as follows:

24. [66]

    If follows that the respondent discharged its onus of adducing evidence probative of the fact that any causal relationship between the accident and the appellant’s psychiatric disabilities had ceased well before the trial.

25. [67]

    I think it also follows from the primary Judge’s analysis of the evidence that his Honour was well aware that the respondent bore the onus of adducing evidence on this issue. His Honour did not expressly refer to Watts v Rake or Purkess v Crittenden, but he was referred to those cases. His careful approach to the evidence demonstrates, in my opinion, that he appreciated the differing evidentiary burdens borne by each of the parties. Thus the respondent has not established that the primary Judge erred in his approach.

26. [68]

    As I have noted, Mr Sheldon submitted that the appellant’s five periods of hospitalisation after 2009 showed that she continued to suffer psychiatric incapacity as a consequence of this accident. The submissions repeated a contention put on the appellant’s behalf to the primary Judge.

27. [69]

    There was no dispute at the trial that the appellant suffered from severe psychiatric disorders prior to the accident, although there was a dispute as to how far her condition had improved in the period leading up to the accident. Dr Bannan, the appellant’s treating psychiatrist, diagnosed her in 2007 as suffering from borderline personality disorder. He repeated this diagnosis in a report dated 18 May 2011. Dr Bannan prepared that report after having seen the appellant on numerous occasions between her hospitalisation in November 2009 and March 2011.

28. [70]

    Dr Klug’s preferred diagnosis was not borderline personality disorder, although he appeared to accept in his oral evidence that it was a defensible diagnosis. Dr Klug also accepted that a person suffering from a longstanding borderline personality disorder is apt to experience very severe episodes of depressive symptoms, perhaps including self-harm, and that such episodes are unpredictable in their timing. Dr Klug agreed that a person with such a long term condition may experience the severe episodes in clusters or at intervals, yet be capable at other times of performing reasonably well in daily life and at work.

29. [71]

    The primary Judge referred to the appellant’s six post-accident admissions to psychiatric institutions, the first of which the respondent conceded was attributable to the accident. In all cases, except for one manic episode, the admissions were for recurrent major depressive episodes. His Honour did not regard the five admissions after 2009 as inconsistent with his finding as to causation.

30. [72]

    The evidence given by Dr Klug as to the characterisation of the borderline personality disorder support the primary Judge’s view, as does the appellant’s pre-accident psychiatric history. In addition, Dr Brown in her final report of 31 October 2013 reviewed the records of the appellant’s admission to hospital in March 2013. The records revealed that the hospitalisation followed particular stresses unrelated to the consequences of the accident, leading Dr Brown to criticise Dr Klug for not considering that the appellant’s ongoing presentation might be related to “personality dysfunction rather than having arisen secondary to the accident”.

31. [73]

    The appellant has not shown that the primary Judge overlooked the post-2009 hospitalisation, nor that his Honour erred in finding that the appellant’s ongoing disabilities were not connected with the accident.

32. [74]

    I add for completeness that the evidence given by the appellant’s son concerning an incident that occurred after the third day of the trial had ended does not carry the matter further. The appellant’s written submissions characterised the incident as the appellant endeavouring to throw herself from the family car when being driven home. The evidence of the incident came from the son, who was regarded as an unreliable witness. In any event, his description of the incident fell far short of demonstrating that the appellant acted in the self-destructive way attributed to her.

33. [75]

    Mr Sheldon submitted that the primary Judge paid insufficient attention to evidence that the appellant’s presentation to doctors prior to her learning of the surveillance footage was inconsistent. This submission seems to have been intended to answer the primary Judge’s preference for the evidence of Dr Dalton over that of Dr Bodel. His Honour discounted Dr Bodel’s opinion that the appellant suffered in October 2011 from complex regional pain syndrome. His Honour discounted Dr Bodel’s view in part because Dr Bodel did not see the appellant present herself as essentially one-armed, “probably because [the appellant] had seen the surveillance material shortly before her attendance”.

34. [76]

    The primary Judge did not say that the appellant presented in a uniform way to all doctors prior to her learning towards the end of 2011 that she had been filmed. His findings were influenced by the disparity between the appellant’s presentation to doctors and the freedom she displayed in the surveillance footage. On some occasions, as the primary Judge pointed out, surveillance and the consultations took place on the same day. That there may have been some variability in the appellant’s presentation prior to late 2011 is hardly inconsistent with a finding that she was grossly exaggerating her symptoms.

Orders

1. [77]

   The appeal must be dismissed, with costs.