ZIADE v NSW MINISTERIAL INSURANCE CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and HANDLEY JJA 26 March 1993, 26 March 1993 [1993] NSWCA 301 DAMAGES — personal injuries — motor vehicle accident — injuries to upper back, left leg and teeth — trial judge (McLachlan DCJ) enters judgment for $17,114.14 — complaint that appealably low — judge relies on impression of plaintiff in court — records bodily manoeuvre of plaintiff jumping from witness box landing squarely on feet — suggested inconsistency of manoeuvre with complaints — observations called to the notice of parties — whether judge erred in consideration of the evidence — held: No appealable error having regard to judge's findings on the plaintiff's credit and medical reports available to the judge — appeal dismissed. Government Insurance Office (New South Wales) v Bailey (1992) 27 NSWLR 304 (CA) applied. LEGAL PRACTITIONERS - duty of professional care - conduct of trial of personal injuries damages case - plaintiff sole witness giving oral evidence - conflicting medical reports tendered - no medical witnesses called to give oral evidence - held: Observations by Kirby P (Meagher JA agreeing) upon the dangers of conducting trials on seriously disputed medical evidence on the basis of medical reports and the plaintiff's oral testimony alone. Handley JA This is an appeal by a plaintiff from an assessment of damages by McLachlan DCJ. The plaintiff, who at the time of his accident was conducting a green grocery business at Paddington, was standing on the back of his truck on 19 June 1987 when it was struck by another vehicle. He lost his balance and finished up on the footpath having injured his chin and jarred himself in the fall. He had significant dental injuries. The plaintiff's case was conducted with an economy of effort which was really not appropriate in a case where serious injuries were alleged and substantial damages claimed. He was the only witness called to give oral evidence and on the medical issues the plaintiff's legal advisers contented themselves with tendering a bundle of medical reports. The defendant responded by tendering a further bundle of medical reports. The trial Judge, having heard the plaintiff examined and cross examined, said that he had great reservations as to his credit. During the course of his cross examination he demonstrated what happened when he lost his balance on the truck by jumping out of the witness box onto the floor of the court landing on both feet. It appeared that he was able to do this without suffering any apparent discomfort. His Honour read a summary of this incident onto the transcript, without objection from counsel for the plaintiff. His Honour noted in support of his reservation as to the plaintiff's credit that this incident was "a little inconsistent with what he would have me believe". 2 UNREPORTED JUDGMENTS On the medical issues the trial Judge concluded that while the plaintiff had had some problems for perhaps as long as twelve months after the accident, he was not prepared to accept that he had any residual disability thereafter. I take his Honour to refer to residual disability which was a result of the motor vehicle accident. There seems to be no doubt that the plaintiff had degenerative conditions in his spine which were giving him some problems but the real question, as Mr Serisier agreed, was whether those conditions had been caused or aggravated by the accident. His Honour was not satisfied that the plaintiff had established that his continuing disabilities were due to the accident. In particular his Honour accepted the opinion of Dr Bodel in his report of 21 January 1991 and quoted at length from it. It really is impossible for this Court, on the materials available to it, and given his Honour's findings as to the credibility of the plaintiff, to disturb his Honour's conclusion on the medical evidence. One of the principal complaints of the plaintiff at the trial was his continuing problems with his neck. On the same day as the accident the plaintiff reported to his local general practitioner, Dr Sacks. Dr Sacks reported that the plaintiff complained of neck pain but he recorded no complaint of back pain. At a follow up consultation on 13 July 1987 the only complaints of pain recorded by Dr Sacks were in the plaintiffs lower leg. There was no recorded complaint of pain in his neck or back. The plaintiff also saw Dr Mann on 24 June and she recorded complaints in regard to the plaintiff's back and neck. However, she also noted, in relation to the plaintiff's neck, that neck movements were full and there was no palpation. The plaintiff next saw Dr Rasanayakam on 17 September 1987. At that stage there was complaint of low back ache but no complaint of pain in the neck. He saw Dr Mahony on 12 January 1988. At that stage there was a complaint of pain in the heels but no complaint of pain in the neck or in the back. Follow up visits on 28 January and 2 February 1988 led to the doctor recording complaints of back but not neck pain. In the light of this history I have not been persuaded by Mr Serisier that Dr Bodel's report of 21 January can be displaced on the ground that it was based on an inaccurate or incomplete history. The remaining submission is that, given his Honour's findings of fact in relation to the plaintiff's credibility and the medical evidence, the assessment of the trial Judge was so low as to warrant appellate intervention. In my opinion this submission fails. His Honour's award was undoubtedly low but he had concluded that the plaintiff had substantially recovered from the consequences of his fall within twelve months of the accident and that thereafter his problems were due to constitutional and degenerative conditions which were not associated with the accident. In my opinion, therefore, the appeal fails and must be dismissed, with costs. Kirby P On the substantive matters argued in this appeal I agree with what Handley JA has said and with the order which necessarily follows. During the course of argument the difficulty which is faced by this Court was drawn to the attention of counsel for the appellant. That difficulty is, in a sense, a mirror image of the difficulty faced by the primary Judge. It is the difficulty of seeking to do justice to the appellant (the plaintiff below) in the way the trial was conducted. Justice had to be done upon the basis of relatively short oral evidence URJ ZIADE v NSW MINISTERIAL INSURANCE CORPORATION (Kirby P) 3 called only from the appellant and of the tender of a series of unelaborated medical reports which are then pored over, both at the trial and now before us. In the forensic setting, it is virtually inevitable that the decision-maker, seeking to reconcile the competing arguments of the parties and to choose between them, will then be highly influenced in reaching a conclusion upon the impression which the sole witness to give oral evidence makes upon him or her. Typically, this is the plaintiff alone, seen in a very short encounter with the Judge in a courtroom where the Judge seeks to weigh up the competing medical opinions and to reach a conclusion to do justice as between the parties. In this case the Judge apparently placed a great deal of emphasis upon a demonstration by the appellant of a greater capacity than he was complaining of. This demonstration consisted of a short manoeuvre when the appellant jumped from the witness box to make a point during his evidence. Once again, I say, with Lord Atkin, that for my own part I would prefer an ounce of empirical evidence to a pound of judicial impression. See Societe d' Avances Commerciales (Societe Anonyme Egyptienne v Merchants' Marine Insurance Co (1924) 20 LI L Rep 140 (CA) at 152. There is always a risk that an injustice will be done upon the basis of a Judge's impression of how a witness looks or how, momentarily, he or she performs in the unnatural conditions of the courtroom. Nevertheless, consistent with established authority this Court must defer to the opinion of the trial Judge based upon such an impression. See Abalos v Australian Postal Commission (1990) 171 CLR 167, 174. In this case there is no legitimate basis for complaint about the way in which the trial Judge acted in reliance upon his impression. Cf Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (CA) 310. He drew his impression to the notice of the parties quite clearly by reading onto the record his impression, derived from his observations of what the appellant did in his sight. Cf Bailey at 310, 324. Therefore, we are faced, as his Honour was, with a single witness who gave oral evidence (and whose credit was not accepted by the Judge) and a compilation of medical reports which have been analyzed and criticized but which speak to us only quietly from their cold pages. Mr Serisier, counsel on the appeal, was not counsel at the trial. It is important that I be fair to counsel who appeared at the trial. He is not before us. He has not been heard in defence of the way the trial was conducted. In fairness also it must be said that the course followed by counsel in this trial followed that which is becoming increasingly common, if not almost universal nowadays. It would not be efficient, or necessary, to return to the practice which was formerly common of calling medical witnesses one by one to give oral evidence before decision-making tribunals. In cases such as this those tribunals were formerly generally constituted by juries. That is no longer so. However (as we see in virtually every running list of this kind) cases are increasingly been determined in the way this case had to be determined, namely, by the evaluation of the oral evidence of the plaintiff alone and the attempt by the trial Judge to decide where the truth and justice lay as between the series of conflicting medical reports seen from the perspective of the impression which the plaintiff makes. On the face of things this is an odd way to resolve the differences of conflicting expert opinions. The legal profession, which is trusted by litigants to present cases fairly and properly, needs to re-examine this practice of the conduct of trials which has become so common. Litigants are not to blame. They look to the legal profession to present their cases properly, effectively and in such a way as best to advance their causes. Yet cases arise where this Court forms the view that the cause in the 4 UNREPORTED JUDGMENTS court below was not presented as best it could have been. In such cases, where the Court is concerned about the matter, it should refer its concerns to the appropriate professional body so that proper complaints can be investigated. That course will, of course, be cold comfort to the plaintiffs and other litigants in the case in hand. But it may send a signal to the legal profession that the days of forensic advocacy are not finished. And that the Bar, which seeks to preserve its separate, specialized position, will only do so by the highest professional standards in the presentation of evidence and argument, today as in the past. My distinct impression in this case is that more could have been done to present the appellant's case effectively. However, on the case as presented, I agree that the Judge was cast very much back upon his impression of the appellant. Unfortunately for the appellant that impression was adverse. The adverse impression became fatal to the appellant's aspirations. It sustains his Honour's conclusion. The judgment which McLachlan DCJ entered was low. But it was not so low as to authorise this Court to disturb it. We cannot intervene. Therefore the appeal must be dismissed with costs. Meagher JA I agree with Handley JA. I also agree with the President. Insofar as the President's remarks do allude to the manner in which the case was conducted below, I think it is fair that the record should make it clear that counsel for the appellant did not Appear for the plaintiff below. Kirby P: The order of the Court is that the appeal is dismissed. The appellant must pay the respondent's costs. Counsel for the Appellant: L Serisier / S Baker Instructed by: Morgan Ardino and Co Counsel for the Respondent: G Laughton Instructed by: Solicitor for NSW Ministerial Corporation