ECHEGARAY vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 11 October 1990, 14 December 1990 [1990] NSWCA 57 APPEAL — appellate court — entitlement to disturb findings based on credibility — limited circumstances — Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Chambers v Jobling (1986) 7 NSWLR 1 applied — error in rejecting claim of brain injury — injury established by CT scan — other compelling evidence substantially uncontradicted — held: Error by trial judge authorises Court of Appeal to set aside judgment — new trial ordered limited to damages. Jones v Hyde (1989) 63 ALJR 349, 351 and Abalos v Australian Postal Commission, unreported, High Court of Australia, 15 November 1990 referred to. EVIDENCE — entitlement to reject complaints — suggestion not put expressly to witness — rule in Browne v Dunn (1893) 6 R 67; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 — held: No breach of duty of fairness — suggestion of exaggeration obvious from medical evidence. ORDERS 1. Appeal allowed; 2. Judgment of his Honour Judge Staunton dated 1 February 1989, set aside. New trial ordered limited to damages; 3. Costs of the first trial to be costs in the new trial; and 4. The respondent to pay the costs of the appeal. Kirby P I agree with Clarke JA. Ihave given particular attention to the question whether this Court is prevented from giving effect to the conclusions to which I have come by virtue of the recent authority of the High Court of Australia in Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission, unreported, High Court of Australia, 15 November 1990. In each of those decisions McHugh J, writing for the Court, has reminded courts such as this of the great care which must be taken in disturbing the decision of a trial judge which depends on the subtle influences of impressions as to the credibility of witnesses giving evidence in the trial. This principle is to be observed by appellate courts, whether or not the trial judge has expressly referred to the impression of credibility. In Abalos (at 15) McHugh J put the consideration in these terms: "As I pointed out in Jones v Hyde... when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that because her Honour made no express reference to the demeanour or credibility of either [witness]... demeanour or credibility played no part in her findings on the supervision issue." Jones and Abalos do not stand in the way of the performance by this Court of its appellate function. They do not prevent appellate review of facts simply because witnesses are called at trial and give evidence which necessarily contains subtle influences upon the decision of the trial judge. Those decisions could 2 UNREPORTED JUDGMENTS scarcely bolt the door of appellate reconsideration in the light of the clear terms of the statutory obligation of the Court laid down in the Supreme Court Act 1970, s75A. They are to be read together with the earlier decisions of the High Court in Paterson v Paterson (1953) 89 CLR 212 and Brunskil v Sovereign Marine and General Insurance Co Ltd and Ors (1985) 59 ALJR 842 and with the clear instruction given in Warren v Coombs (1979) 142 CLR 531. In the last mentioned case, at 551, the High Court (Gibbs ACJ, Jacobs and Murphy JJ) said: "[T]he established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judges on deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation." See also Chambers v Jobling (1986) 7 NSWLR 1; Banmax v Austin Motor Co Ltd [1955] AC 370 (HL). I have therefore concluded that the Court may and should give effect to its conclusion that the trial judge erred. As Clarke JA has demonstrated that error, despite the advantages which the trial judge enjoyed and the way in which he expressed his conclusions, emerges clearly from consideration of the objective and uncontradicted evidence in the case. It cannot stand with the conclusion to which his Honour came. This is the classic circumstance in which an appellate court may, and should, set aside the judgment of the trial court. That is what I would propose. The case is plainly not one where this Court can safely proceed for itself to a reassessment. I therefore agree in the orders proposed by Clarke JA. Mahoney JA I have had the advantage of reading the judgments of Kirby P and Clarke JA. I have had considerable doubts as to whether this Court can and should set aside the judgment of the learned trial judge, affected as it was by his conclusions as to the credibility of the plaintiff. The main matter in dispute is that relating to the plaintiffs brain injury. Had his Honour simply found that none of the complaints which the plaintiff made, as to sleepiness, lack of memory, and the like, were justified, I would not have found it proper for this Court to intervene. The opinion of Dr Weinman that the plaintiff had brain damage and that that brain damage was causing those symptoms depended to a substantial extent upon the history which the plaintiff had given him. If the plaintiff's history had been found by the learned judge, on his assessment of the plaintiff's credibility, to have been completely false, I do not think that this Court could have intervened. However, His Honour appears to have accepted - this, at least, is the understanding of his findings which I derive from the judgment - that from late 1986 or early 1987 the plaintiff did have the main symptoms, of sleepiness, of which he complained at the trial. The question then became whether those symptoms were due to his emotional problems derived from marital discords, or whether they derived from the brain injury evidenced by the cerebral scar. On this basis the question became whether the doctor's expert opinion should be put aside because the plaintiff, whilst recounting truthfully his symptoms after the end of 1986 or the beginning of 1987, untruthfully stated them in respect of the period before that time. UREHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarké JA) It is, of course, open to a trial judge to reject the opinion of experts: reference was made to this in Chambers v Jobling (1986) 7 NSWLR 1. And one basis for such a rejection may be that the expert was misinformed as to the facts on which the opinion was based. But, if it be accepted that at least during the later period the symptoms were correctly stated, it is the more difficult to conclude that the accident-caused cerebral scar, which undoubtedly existed, was not producing the symptoms referred to. And, in particular, the choice between the plaintiff's emotional difficulties and the scar as the cause of the symptoms which, in the later period, the plaintiff was exhibiting does not, I think, depend simply upon the assessment of the plaintiff's credibility but upon the expert judgment of the doctor. The learned trial judge clearly gave careful consideration to the conclusions which should be drawn from his assessment of the plaintiff and I have hesitated before coming to a different conclusion. But if, as I have said, his judgment indicates that he accepted the complaints as to sleepiness made in respect of the later period as being genuine, then I agree with Kirby P and Clarke JA that there should be a new trial. I agree with the orders proposed by Clarke JA. Clarke JA On 3 May 1985 the appellant was involved in a motor vehicle accidentas a consequence of which he sustained a number of injuries. He sued to recover damages for those injuries. Liability was admitted and, in due course, the damages were assessed by Staunton CJ of the District Court who awarded the appellant $18,251 which was made up of general damages of $10,000 and agreed special damages of $8,251. The appellant contends that the award is inadequate. He accepts that if, as his Honour found, he was entitled to damages only for the injury to his chest head and arm the award was appropriate but claims that his Honour erred in rejecting his claim in respect of brain damage which was the most serious of his alleged injuries. Mr Gross QC, senior counsel for the appellant, has submitted that the reasoning which led his Honour to reject that claim was flawed in a number of respects. The primary submission, which accepted the proposition that the learned trial judge's conclusion depended upon his view of the credibility of the appellant, was that one or more of the reasons which his Honour gave for forming an adverse view of the credibility of the appellant were mistaken insofar as they were not supported by, and in some instances were inconsistent with, the evidence in the case. Accordingly, his Honour's finding on credibility could not stand and this Court should order a new trial. The rules according to which an appellate court interferes with a finding based on credibility have been set out in a number of cases (see Brunskill v Sovereign Marine and General Insurance Co Ltd, 59 ALJR 842; Chambers v Jobling, (1986) 7 NSWLR 1; Powell v Streatham Manor Nursing Home, [1935] AC 243, at 266-8; Voulis v Kozary, 50 ALJR 59 and Paterson v Paterson, 89 CLR 212, at 219-224). In Paterson Dixon CJ and Kitto J said, at 223: "Tn Yuill v Yuill (1945 P 15 at pp 20-22), Lord Green MR restates the standards and refers to Hvalfangerselskapet Polaris A/S v Unilever Ltd ((1933) 46 LI L Rep 29), as an illustration of the jurisdiction of the court of appeal to set aside a finding based in part on credibility because on carefully checking the whole evidence by a critical examination the primary judge's impression on the subject of demeanour was found to be mistaken." 4 UNREPORTED JUDGMENTS and proceeded to quote, with apparent approval, the statement of principle by Lord Thankerton which ended with these words in Watt (or Thomas) v Thomas, [1947] AC 484 (at p 488): "The appellate court, either because the reasons given by the trial judge are not satisfactory or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of having seen and heard the witnesses and the matter will then become at large for the appellate court". What Mrs Gross said was that in making an adverse determination of the appellant's credibility the trial judge was influenced by his view that the appellant was making claims of continuing chest symptoms which were not supported by, and in fact were inconsistent with, the medical evidence in the case. That conclusion was, according to Mr Gross, mistaken. It followed, therefore, that as one of the findings underpinning the determination on credibility was erroneous, the ultimate conclusion was insupportable. It is true that his Honour did analyse the evidence regarding the history of the appellant's chest injury for the purpose of, amongst other things, determining the truthfulness of the appellant. So much appears from the statement made by his Honour that "the matter of the plaintiff's credibility does not fall to be determined by his claims about his head and his sleepiness alone. Examination of his evidence concerning his chest, and the medical evidence about it, is useful in considering the extent to which he should be accepted generally as a witness of truth." The question which then arises, and which is critical, is whether the conclusion reached by his Honour that the appellant's claims of continuing pain and discomfort in the chest were inconsistent with the weight of the medical evidence was mistaken. The precise passage in the judgment which was said by the appellant's counsel to be erroneous read: "Now whether the plaintiff had an undiagnosed fractured rib or a soft tissue injury, recovery in a matter of weeks or months would be expected, apparently according to the medical evidence. Yet, in December 1986, the plaintiff told Dr Greenway that the pain in his chest was getting worse. Moreover, in evidence the plaintiff said the pain in his chest is permanent increasing in severity with the period of his shift." There is no doubt that a number of the doctors expressed the opinion that the plaintiff's chest condition should recover substantially within a relatively short period of time. Mr Gross submitted, however, that these statements appeared in reports following examinations which took place at a time when it was believed that the chest injury was merely a soft tissue one. The doctors did not know, at that stage, that in fact the appellant had sustained a fractured rib and accordingly those opinions were of limited relevance. The only views articulated after the doctors became aware of the fracture were, according to Mr Gross, to the contrary. In order to make good this submission counsel carried out an exhaustive analysis of the medical reports in evidence concerning the appellant's chest injury. It is, I think, unnecessary to record in this judgment all the statements to which the court was then taken. Most of the relevant opinions appear in the judgment under appeal and it cannot be said that his Honour misstated those opinions or overlooked any of them. For instance, Dr Bentivoglio, a treating orthopaedic surgeon, initially thought the appellant had sustained a soft tissue injury which UREHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark6 JA) would clear up in a few weeks. In a report dated 2 December 1986 he noted that there was a suggestion that there had been an undisplaced fracture of a rib and said: "At this stage whether there was pain arising from the costo chondral junction or from an undisplaced fracture, his long term prognosis is excellent... His minor symptoms I would expect to improve with time. I do not feel further treatment is indicated for him. Regarding the long term, he will not be left with any long term disability." Dr Kohan, another treating orthopaedic surgeon, said in a report dated 14 July 1986 that a scan had showed a possible healing fracture over the right sixth rib and commented: "It is disappointing that persistent rib symptoms have continued for so long after the accident, but neuralgia after rib fractures is not unusual... If his symptoms persist for three months or longer then a local injection of Cortisone may be worthwhile." Dr Burns, who examined the appellant on behalf of the respondent thought there was nothing wrong with him in June 1986. The only report referring to an examination after December 1986 relating to the chest injury was a report of the general practitioner, Dr Singh, who noted that the appellant complained of a continuing chest pain in May 1987 and thought his prognosis had to be guarded. In this respect it is pertinent to point out that there is no indication that Dr Singh, for whom x-rays had been taken which negated fractured ribs, ever turned his attention to the question whether the fact that a rib had been fractured was significant. On the other hand Dr Bentivoglio makes it quite plain that in December 1986 he regarded the prognosis as excellent whether or not a fracture had been involved. At the trial, which took place in December 1988, the appellant said that the pain in his chest was permanent and it came on each day when he was driving a bus in his employment. His Honour contrasted that evidence with the opinions, the thrust of which I have set out, and concluded that the appellant had not established that there was a physical cause for his continuing complaint of pain in the chest. Because Dr Greenway, a psychiatrist, did not find any functional condition which could explain these pains his Honour went on to say that he was not satisfied that there was any chest pain. This finding seems to me to have been open on the evidence particularly as it appears from the judgment that counsel for the appellant accepted that he had no medical support for "any continuing, or for much continuing, chest or rib disability trouble". The highest that the appellant can put the matter is that Dr Singh, upon whom his Honour obviously placed little reliance, thought there were continuing problems (based so far as I can see on subjective complaints) and Dr Kohan indicated that neuralgia is not unusual and thought that the appellant's symptoms may persist for three months or longer. But that does not, in my opinion, establish error. His Honour obviously gave careful consideration to all the medical evidence on this issue and quoted from the most significant reports. In these circumstances I do not think it is accurate to say that he misconceived their thrust nor do I think he was wrong to say that Dr Kohan expected the chest condition to clear up. In my view it was open to his Honour to reject the appellant's complaints of continuing chest pain and to do so for the reasons he expressed. The final submission of counsel on this aspect of the case was that it was not open to his Honour to reject the appellant's complaints of continuing chest pain because he had not been relevantly challenged in cross examination. Reference was made to Browne v Dunn, (1893) 6 R67. That case lays down principles 6 UNREPORTED JUDGMENTS designed to ensure fairness and justice in the conduct of trials as was made plain in Seymour v Australian Broadcasting Commission, 19 NSWLR 219. It seems to me that, having regard to the medical evidence in the case, it must have been obvious to the appellant and his advisors that the respondent did not accept that the appellant was suffering from continuing chest pains and would have understood that the cross examiner was endeavouring to raise doubts as to the truthfulness of the appellant's complaints of continuing chest pain. The particular questions I have in mind were those suggesting inconsistency between his evidence that he had continuing complaints of chest pain made worse by driving and the undoubted fact he had returned to work eight or nine weeks after the accident and had continued to drive a bus, except for a period of long service leave, for the period of three and a half years up to the date of trial. Although the defendant's counsel did not directly challenge the appellant on his claims of continuing chest pain by putting to him, for instance, the suggestion that he was not suffering any pains, I am of opinion that it was well open to his Honour in the light of the cross examination generally, to reject the appellant on this issue. I would reject this particular challenge to the judgment. The next submission for the appellant had much greater substance. In broad terms it was contended that his Honour was in error in rejecting the appellant's claim that he suffered brain injury in the accident. This claim was based essentially on the evidence of Dr Weinman and a CT scan of the head. The trial judge declined to accept Dr Weinman's evidence to the effect that the appellant probably suffered an injury to his brain in the accident for two reasons. First, and foremost, the opinion was based on a history that was unreliable and, secondly, the unconvincing alteration of the doctor's opinion from one espousing a possible link between the accident and the appellant's brain damage to one of a probable nexus. Mr Gross submitted that the appellant's own testimony was supported by objective evidence in the form of the CT scan and that the strengthening of the doctor's opinion resulted from further reflections by the doctor and was not a sound basis for rejection of the ultimate opinion. These submissions require that I undertake an analysis of the evidence. The appellant said that shortly after the accident he had suffered from dizziness, headaches, lapses of memory, nervousness, a tendency to become lost, aggressiveness and sleepiness. None of these symptoms are mentioned, however, in any doctor's report prior to the report of Dr Greenway, the psychiatrist, dated 17 December 1986. Even then there was no mention of the sleepiness. He complained at that time to Dr Greenway only of chest pain, of jumpiness, of anxiety and difficulty in sleeping at night. About one month later, on 7 January 1987, he saw Dr Weinman for the first time and complained to him of episodes of irresistible sleep during the day during the last four months. This was not, however, the first occasion on which he had complained of that symptom for at about the time he saw Dr Greenway he was complaining to Dr Singh of dizziness and headaches associated with an irresistible desire to sleep at any time of the day. Indeed those complaints led Dr Singh to refer the appellant to Dr Weinman. That doctor submitted him for a CT scan which showed evidence of an old right sided parietal abnormality in the brain which was described as an infarct. This was later explained to mean a scarring of a blood vessel following an old occlusion. The doctor at first found the relationship between the trauma and this condition difficult to define but thought it possible that the scarring was related to the injury and may also be relevant to the sleep disturbance. UREHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarké JA) In his last report, dated 29 July 1988, which related to examinations in November 1987 and March 1988, Dr Weinman said that the appellant claimed that since he had been taking Dilantin he was no longer suffering from irresistible sleepiness. He then expressed this opinion: "As to the causation of these attacks (ie irresistible sleep) it would appear to me that whether these attacks are emotional in origin or whether they are of a narcoleptic nature, they could be related to the appearances seen in the brain scan which I referred to earlier. This in turn could be related to a head injury as described by him." Between the time of the last consultation and the date of trial it is clear that the doctor's opinion had firmed considerably. He was asked whether it was more probable than not that the lesion shown on the CT scan was caused by the accident said: "T have thought about this very carefully and in considering the fact that he is a relatively young man and there is no other evidence of vascular disorders and there is a definite history of a head injury to that site on his head I would conclude that it is more probable that the head injury had a part to play in occluding one of the blood vessels in his brain." The following question and answer is recorded in the transcript shortly after that statement: "Q. Is it your opinion that the symptoms that Mr Echegaray suffers and has told you of are caused by the lesion? A. I would consider that it is most probable that the symptoms are related to a scar in the brain." In his judgment his Honour quoted the answer I have first set out and then said: "Dr Weinman's evidence does not persuade me that his opinion should be accepted. His transition from 'possible' to 'probable' is not supported, in my view, by convincing reasons for it, certainly not for reasons of which he was not aware when he first expressed an opinion. " It is, as I have pointed out, this statement which is challenged. Mr Gross complains that there were other reasons than the three mentioned in the particular answer which led to the hardening of his view and his Honour had simply overlooked these. The two reasons which were said to have been overlooked emerged while the doctor was being tested in cross examination. They were that Dr Wolfenden had himself expressed an opinion of a probable link between the scar, which had been revealed by the CT scan, and the irresistible sleep and the taking of a further scan which confirmed the existence of the infarct. In my opinion the thrust of the doctor's evidence was that the fact that the scarring was in the exact location of the blow to the appellant's head, given that the appellant was a relatively young man with no evidence of vascular disorders, established, on reflection, to his satisfaction that there was a probable link. Under cross examination he elaborated by pointing out that he was aided in reaching that conclusion by Dr Wolfenden's opinion and the confirmation of the existence of the scarring which was indicative of old trauma. I must confess to having some difficulty in accepting that there was a sound basis for rejecting the doctor's opinion. It was, after all, substantially uncontradicted. It is true that Dr Wolfenden said in a report that he thought a lot of the appellant's problems were emotionally engendered and later he expressed the opinion that he could find no physical reason for memory disturbance and the appellant's aggressiveness. But Dr Wolfenden did not reject the possibility of a link between the infarct and the sleepiness of which the appellant complained nor 8 UNREPORTED JUDGMENTS did his evidence counter Dr Weinman's opinion that even if the major problem of sleepiness resulted from an emotional disturbance that disturbance itself was related to scarring of the brain. On the contrary Dr Weinman gave evidence, in cross examination, that Dr Wolfenden had expressed the opinion to him privately that it was likely that the head injury was responsible for the irresistible sleepiness. Despite this the respondent did not call Dr Wolfenden either to amplify his written opinions or to comment on Dr Weinman's evidence of their private talk. Counsel was content to rely only on Dr Wolfenden's reports. In the result Dr Weinman's evidence and opinion stood uncontradicted and, given that no reason appeared why the respondent could not have called Dr Wolfenden, in my opinion should have been accepted in the absence of compelling reasons to the contrary (Jones v Dunkel, 101 CLR 298). Although Doctor Weinman did agree that it was possible to have an infarct of the type shown in the scans in this case without associated symptoms I find his Honour's reasons for rejecting the opinion given in the witness box unconvincing particularly when the doctor gave evidence that all symptoms of which the plaintiff complained were consistent and the fact that those symptoms were delayed in onset was not surprising given the nature of the injury. While it may nonetheless have been open to his Honour to reject the ultimate conclusion that the appellant was suffering from symptoms caused by brain injury resulting from the accident upon the basis that it was based, in part at any rate, on the history furnished by the appellant no sound reason appears for rejecting the evidence that the appellant had scarring on the brain or that his symptoms were consistent with the condition revealed in the CT scan. This conclusion is important in two respects. First, it provides an organic basis for the appellant's complaints and, secondly, it must necessarily be weighed in the balance in determining whether the appellant's account of problems of dizziness, sleepiness and forgetfulness should be accepted. However that conclusion does not necessarily lead to a reversal of the judgment under appeal for his Honour's fundamental propositions, which were based on credibility, were that the appellant did not suffer from the sleep problems of which he complained or, if he did, that he suffered from them prior to the end of 1986 and those problems probably resulted from marital unhappiness. In this context it is necessary to refer to some other facts. The appellant made no complaint to anyone that he suffered from other than chest problems before the end of 1986. To put it another way there is no evidence in the case that he complained to any doctor or other person of these problems before that time. When he first saw Dr Weinman he said that he had been suffering from the sleepiness since about October 1986. At about this time it would appear that matrimonial problems with his wife increased significantly and he was evicted from the marital bed and was sleeping on a couch. At least that is what he told Dr Greenway in December 1986. At the same time he told the doctor that he was sleeping badly at night and he recognised this may be partly because he was sleeping on the couch. This evidence led his Honour to the view that if he was having difficulty sleeping at night it was not surprising to hear that he had periods of sleepiness during the day. It cannot be doubted that it was open to his Honour to reject the evidence of the appellant. Nor can it be gainsaid that his Honour was in a position of advantage. The question remains whether the reasons given by the trial judge for UREHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark@ JA) rejecting that evidence were unsatisfactory and indicated that he had not taken proper advantage of having seen and heard the witnesses. (Paterson p 224) The onus of satisfying this Court that his Honour failed properly to take advantage of his superior position is a heavy one. In this case the particular question which is raised by the appellant's submission is whether his Honour failed to appreciate the significance of Dr Weinman's uncontradicted evidence and especially those features of it, such as the consistency between the complaints and the objectively demonstrated injury, which were not dependant upon the accuracy of the appellant's history. The reasons why Staunton CJ of the DC rejected the appellant's evidence concerning sleepiness were as follows: the appellant did not suffer the chest problems of which he complained; he had not complained of sleepiness prior to the end of 1986; if he suffered from those problems at that time they were explicable upon the basis of his emotional upset with his wife and his eviction from the marital bed and his complaints of memory loss were not made until the same time, that is, end of 1986. These are, no doubt, compelling reasons but his Honour went on to reject Dr Weinman's ultimate opinion on two grounds. The unacceptable late forming of his opinion and the appellant's lack of credibility. For the reasons I have earlier given the fact that Dr Weinman expressed a firmer opinion of the relevant causal relationship at the trial provided no basis, in the circumstances of this case, to reject his opinion that the sleepiness was consistent with the infarct which probably resulted from the accident. It follows that, in my opinion, when his Honour considered whether to accept the appellant's complaints of sleepiness it was necessary for him to pay regard to Dr Weinman's evidence, first, that it was consistent that there should be a link between the head injury and the sleepiness and, secondly, that the late development of his symptoms were not inconsistent with that link. Staunton CJ of the DC did not do that and the consequence of his Honour declining to accept Dr Weimnan's evidence on the grounds of the doctor's altered opinion was that he evaluated the appellant's complaints upon the basis that they were unsupported by evidence of a probable link between the injury and the complaints. In this respect his Honour was, in my respectful opinion, in error. To put it another way the rejection of Dr Weinman's opinions led his Honour to consider the question of the appellant's credibility upon an incorrect premise - that is, that a causative link between head injury and symptoms had not been shown on the probabilities. The acceptance of that link was, in my opinion, critical in many respects to the determination of the veracity of the appellant's complaints and once it was rejected the likelihood that the appellant was accurately describing his symptoms was markedly diminished. I would conclude therefore that his Honour's approach was flawed and that his reasons for rejecting the appellant's case on this issue were unsatisfactory, in the sense in which that word is used in the authorities. It follows that the verdict should be set aside. In reaching this conclusion I have not overlooked the potency of the principles expressed in Jones v Hyde (1989) 63 ALJR 349, at 351 and Abalos v Australian Postal Commission (High Court of Australia, 11 November 1990, unreported - particularly per McHugh J at 14-15). This court is bound by those decisions and must apply the principle (which had been expressed in Watt) expressed by McHugh J: 10 UNREPORTED JUDGMENTS "Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion'." Further in applying that principle the court should be astute to recognise the subtle influence of demeanour on determinations upon credibility. The point of distinction in this case is that while it was clearly open to his Honour to reject the appellant's evidence he adopted an erroneous premise, that is, that the objective evidence in the CT scan was neutral. In my opinion that evidence was not, in the light of the uncontradicted evidence of Dr Weinman, simply neutral. On the contrary it provided a probable explanation for the appellant's symptoms and his Honour should have approached the question of the appellant's credibility on the basis that the infarct was a probable explanation for any sleepiness and associated problems suffered by the appellant. In summary it was the failure to accept, and appreciate the significance of Dr Weinman's uncontradicted evidence on the question of the appellant's credibility which was erroneous. Although I have concluded that his Honour erred in rejecting Dr Weinman's opinion primarily because it was uncontradicted reference to an answer which he gave, and which is not mentioned in the judgment, gives greater insight into the factors which led Dr Weinman to conclude that it was probable that there was the relevant causal link. He said: "Q. what about the emotional aspect? A. That again was extremely difficult. In fact, it has been an extremely worrying and difficult case all told, the driving part not being the least of it. There were times that I really thought this whole thing was emotional and I was hoping that when I repeated the catscan of the brain I would find no scar tissue in which case it was easy. When I saw the repeat scan I changed my mind from the fact that it was purely an emotional problem to the fact that this must be an organic problem of the brain. It is very difficult. Having seen the identical symptoms on the first catscan I am sure there is no mistake. There is a scar there. Without his knowing what the catscan showed he pointed to the place, the point of the injury, and where he experienced scalp pain and he had no indication what the catscan was going to show. In fact, the conclusion I now hold - he certainly has emotional disturbance and I feel that even the emotional disturbances are probably related to what we see on the scan." This was compelling and was not challenged by contrary evidence. Finally, I would add that his opinion received substantial support from reports tendered in evidence from two psychologists, both of whom considered that the psychological tests carried out were consistent with fronto parietal brain dysfunction. I would propose that: (1) The appeal be allowed. (2) The judgment of | February 1989 be set aside and a new trial be ordered limited to damages. (3) Costs of the first trial to be costs in the new trial. (4) The respondent to pay the costs of the appeal. Counsel for the Appellant: BJ Gross QC / LA Levy / J Mendel UREHEGARAY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JA) Solicitors for the Appellant: Bolzan and Princi Counsel for the Respondent: CT Barry / K Davies Solicitors for the Respondent: R Greenland