ESKANDAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 13 August 1992, 13 August 1992 [1992] NSWCA 67 DAMAGES — CREDIBILITY — BROWNE v DUNN — APPREHENSION OF BIAS Clarke JA This is an appeal from a decision of his Honour Judge McLachlan in which his Honour entered judgment for the appellant in the sum of $30,436.05. The appellant had claimed damages in respect of injuries which he allegedly received in a motor vehicle accident on either Saturday 8 March 1986 or early on Sunday morning. There was a lively issue as to liability but his Honour decided that issue in the appellant's favour. The only relevant observation that should be made about the accident was that, in his Honour's view, it was a minor one. The verdict was made up of the following components: economic loss to mid July 1986 $6,481.84, interest on past economic loss $2,332.80, future economic loss nil, out-of-pocket expenses $1,621.45 and general damages $20,000. The out-of-pocket expenses which were allowed were identified and represented the expenses during a period of eighteen weeks during which his Honour was prepared to accept that the appellant was suffering from some disability. Following the accident the appellant attended the emergency department at Royal Prince Alfred Hospital at about 12.30am on 9 March. He complained of pain along the seat belt area. There was no pain on firm compression of his chest and no pain on the springing of his pelvis. Abdomen was soft and non-tender. X-rays were taken of the abdomen and chest and no abnormality was detected. The diagnosis was of soft tissue trauma due to his seat belt and he was discharged home. The next event which occurred was a somewhat surprising one in that on the Monday following the accident an ordinary statement of claim was filed on his instructions in which it was said, inter alia, that as a result of the accident the appellant suffered injury, loss and damage and lost salaries and wages he otherwise could and would have earned and was rendered liable to pay expenses et cetera. On the next day the appellant went to see his general practitioner, Dr Tadros, complaining of low back pain and pain along the seat belt area. According to the doctor's report the appellant told him that he had never injured those parts in the past. The doctor carried out an examination and saw him from time to time thereafter and in November 1986 expressed the opinion that he was suffering from a lumbar disc injury. This opinion was supported by the evidence of other doctors who had seen the appellant, including some doctors who had seen him for purposes of treatment. He was in addition sent to psychiatrists who gave a diagnosis of some reactive depression or other mild to moderate psychiatric disability. The respondent tendered reports of three doctors including a psychiatrist who, according to his Honour: 2 UNREPORTED JUDGMENTS ... Virtually say that in their opinions there is nothing wrong with him." His Honour was then faced with a conflict of medical opinion as to the complaints of, in particular, low back pain and disability made by the appellant. I should add that he was off work for about fifteen months and then resumed on light work. He only lasted at that stage for two weeks and was off again until April 1989, when he resumed and remained on light work. In these circumstances the appellant's credibility was absolutely critical, for the doctors all relied to a greater or lesser extent on the histories given to them and complaints made to them by the appellant. His Honour observed that it was necessary to come to a conclusion on the aspect of his credibility and, having considered a number of matters including the medical evidence, he reached a conclusion that the appellant was consciously exaggerating his symptoms and his Honour said that he could not accept without reservation anything the appellant said. This is a fairly clear finding that in his Honour's opinion the appellant lacked credibility. Having reached that conclusion his Honour expressed an ultimate opinion in terms identical with the expression of opinion of Dr Bornstein. What his Honour said was: "T have difficulty reconciling the patient's ongoing significant complaints with any real disability. I believe that this patient is grossly exaggerating what minimal complaints he may have and believe that he probably has no problems whatsoever. I can see no reason why this man is not back at work as a fitter's assistant." The matters which his Honour took into account in reaching the conclusion as to the appellant's credibility included, as I have already indicated, the medical evidence, obviously the presentation of the appellant in the witness box, and the inaccurate, to put it mildly, histories which the appellant had given to a number of doctors, taken in conjunction with concessions made in cross-examination which markedly affected his evidence in chief. In particular his Honour was faced with the situation where the appellant had said in his evidence in-chief that his sex life had been good before the motor vehicle accident, a statement which was not borne out during cross-examination when he conceded that he had seen both a doctor and a specialist before the accident about pain he experienced during sexual intercourse. Perhaps of more importance were the appellant's statements to a number of doctors denying having suffered any previous back injuries. This was clearly wrong for he had suffered from at least one previous back injury and had complained to doctors on a number of occasions of back problems. These matters emerged during his cross-examination and were amplified in the medical records produced on subpoena and tendered. It is not, I think, necessary for me to go into the details of each of the complaints. I do, however, note that the appellant told Dr Tadros when he first saw him that he never injured those parts, which I apprehend would include the lower back, in the past. It emerged, however, as I have indicated, that he had an injury in 1978 when he fell from a hoist and injured his lower back. He had obviously other back pain problems in March 1983 and more importantly he saw Dr Tadros in January 1985 with a complaint of pain in the left leg for three years. This history must have been regarded as of some significance for the doctor noted that he had a tender lumbar sacral spine and made a diagnosis of, amongst other things, lumbago. In addition, his Honour pointed to the increase in memory problems that the appellant suffered when he was exposed to cross-examination. This can be explained on many bases but is sometimes an indication that the witness' credit is somewhat doubted. URBKANDAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarké JA) Having regard to those matters, his Honour reached the conclusion on credit which I have already set out. The major attacks which have been made upon the judgment relate to this finding of credibility and raise points of appeal which do not appear in the notice of appeal. I will, however, put that to one side in order to consider the submissions, taking the view that if the submissions are of substance and should be upheld then it would be appropriate to allow amendments to the notice of appeal. The three matters raised by counsel for the appellant, only one of which is expressly taken in the notice of appeal, are as follows: first, he says that his Honour clearly regarded the prior back problems as of real significance; he was mistaken in this view and, accordingly, the conclusions which he drew from that mistaken view could not be permitted to stand. The submission raises for consideration the terms of the judgment under appeal and I must confess that I did not, when I first read the judgment, consider that his Honour was ascribing to the previous back injuries particular significance and that that was a matter that bore on his conclusion on credibility. I have, since the submissions, re-read that part of the judgment and I adhere to my original conclusion. What I think the learned judge regarded as important was that the appellant had denied, when questioned, previous back injuries when that denial was clearly false, and, taking that into account with the other matters to which I have referred, reached his conclusions on credibility. I do not think there is any substance in the first ground of appeal. The second matter relied upon is what might be called a Browne v Dunn (1893) 6 R 67 point. It is said that his Honour had concluded adversely to the appellant upon the basis that he had really found that the appellant was a fraud in his conclusion that the appellant was consciously exaggerating. He had found the appellant was, in essence, a malingerer. This finding, counsel suggests, was not properly open to his Honour because it was never put to the appellant that he was a malingerer or that he was making deliberately false statements. In fairness to the appellant's counsel, I think it should be added that he took the argument somewhat further suggesting that a conclusion of the nature to which his Honour arrived was not open in the absence of a much more specific cross-examination than had occurred in this case. Browne v Dunn (supra) lays down a rule which is properly described as one of fairness. It is quite wrong to ambush a party by failing to raise matters and then seeking findings upon the basis of those matters which had not been specifically raised. The occasion in which a court may be confined by the application of the principle will most clearly be when a defendant, for instance, does not cross-examine on a topic and then seeks to call a witness leading critical evidence on that topic. Nonetheless, there may be other occasions when cross-examination is so inadequate that as a matter of fairness it would be wrong for a judge to reach a particular conclusion. The critical matter for consideration is whether the issue on which the finding is made could be regarded as properly raised and a live one between the parties. If, for instance, it is apparent from cross-examination in this case that the respondent proposed to submit at the end of the case that the opinions expressed by its doctors should be accepted, then I do not think it could be suggested that the respondent was lying by ambushing the appellant. Rather, I would conclude that the respondent was seeking in the cross-examination to find a cogent basis for the acceptance of the opinions of his doctors. In this case I find that there is the clearest attack on the plaintiff in cross-examination, in particular in relation 4 UNREPORTED JUDGMENTS to the histories he had given concerning his back and sexual activities. I, for my part, think that the cross-examination clearly telegraphed the attack that was to be ultimately made and could have left the appellant's counsel in no doubt that it would be suggested that his client was a malingerer. I do not accept there is any substance in this point and, accordingly, I would not regard it as appropriate to grant any proposed amendment. The third ground of attack is in the nature of a claim that the case was one in which the court should conclude that there was an apprehension of bias within the principles discussed in Vakauta v Kelly (1989) 63 ALJR 610. The basis for that submission is a statement made by his Honour following his Honour's expression of a conclusion which adopted the words of Dr Bornstein. The words uttered by his Honour which have led to the challenge were as follows: ".. Whilst there has been some criticism of Dr Bornstein by the plaintiff I say that I have seen many of Dr Bornstein's reports and he will not hesitate to support a plaintiff if he believes that the alleged symptoms are genuine...". It must be accepted that a trial judge is bound to assess the evidence before him and to reach a conclusion based on that evidence. But I do not think that the statement which I have just set out indicates that his Honour departed from that procedure at all. We have not, of course, before us the express criticism made by counsel for the plaintiff but there can be no doubt that all that his Honour was doing in the passage was to answer that criticism. It may be, for instance, that counsel was suggesting that Dr Bornstein always supported defendants or always supported the party which had referred a plaintiff to him. But whatever the criticism might have been, I read his Honour's statement as being no more than a response to that criticism. I certainly do not think it provides a basis for reaching a conclusion that his Honour was either biased in Dr Bornstein's favour or that the reasonable observer would have apprehended that there was such bias. No doubt that observer would also have heard the words which led to the response. There are always difficulties for a judge in endeavouring to decide a case where there is substantial conflict of medical evidence and yet no doctor gives oral evidence. This Court has referred to those difficulties in a number of cases in the past. Still occasions do arise when a judge is faced with that particular difficulty and it may be that with the pressures of litigation those occasions will become even more frequent. However, when the parties leave it to a judge to try and assess the medical picture from reports it seems to me that it is difficult for one or other party to challenge the ultimate conclusion upon the basis that that doctor's report could not be accepted unless it could be shown that there was an error in what the doctor had said. Where, as here, the acceptance of a medical picture depended, in substance, upon the appellant's complaints, I see nothing wrong in his Honour's approaching the matter by initially determining the question of credibility. In my view that was the correct way to proceed and once his Honour had reached an adverse view on the credibility of the appellant it is not surprising to find that he accepted the respondent's medical evidence. I should add that counsel for the appellant also submitted that his Honour was in error in not dealing with the psychiatric evidence which expressly supported the appellant, but here again there was a dispute between the psychiatrists and they, at least as much as any other doctor, depended upon the accuracy of the history they received. Where the person giving the history is not a credible witness or person, then there must necessarily be some careful examination of the accuracy of their opinions. Although his Honour did not deal with that matter at URBKANDAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (SamuelS AJA) any length and said no more in fact than there was this clear dispute, I do not think anything more was called for in the particular circumstances of this case. In my opinion the appeal should be dismissed with costs. Handley JA I agree. Samuels AJA I agree. Clarke JA: The order of the court will be the appeal is dismissed with costs. 10 Counsel for the appellant: JL SHARPE Solicitors for the appellant: Dennis and Co Counes! for the respondent: VB HUGHSTON 15 = Solicitors for the respondent! GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES