KELLIE GAYLE REID vy SUSAN SKEPEVSKA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, HANDLEY JA and Cripps JA 22 March 1993 [1993] NSWCA 230 FACTS: Appellent/plaintiff accident 10 April 1982. Verdict Court below $24,285.00 challenged. HELD: (per curiam) (1) Appeal dismissed Meagher JA. In the present case the appellant, who was the plaintiff below, sued in respect of an accident which took place on 10 April 1982. It was heard by his Honour Cowdroy AJ, who gave the plaintiff a verdict of $24,285.00. That sum was made of general damages of $20,000.00, interest thereon of $14,450.00 and a subtraction of $10,065.00 therefrom being the balance previously paid by the defendant. This verdict is challenged. In my view, the challenge is unsuccessful. The basic point about the challenge, one way or another, although a vast number of grounds were taken, is whether or not the plaintiff in the accident caused damage to her lower back. The relevant dates are these: the accident took place on 19 April 1982, a second accident took place, which involved falling off a motor bike, on 23 May1982; and a complaint was made to Dr Pouranik, the plaintiffs general practitioner, on 21 September 1982. His Honour's basic line or argument was as follows: the plaintiff alleged an injury to the lower back from the accident on 10 April 1982. However, there seemed to be no pain to the lower back on that occasion, or immediately thereafter. In fact, there was no evidence of complaint of pain until September. On the medical evidence this would be unusual. Although it was possible for such a thing to take place, it was unusual. One would normally expect some pain to take place, probably at or about the time of the accident, or alternatively, either continuously or intermittently in between. The medical evidence shows that there is something odd in the plaintiff's evidence that this did not take place. One may add this factor makes life more complicated, in that the plaintiff's evidence as to when it manifested, even from the transcript, is extremely unsatisfactory. On many occasions the plaintiff contradicts herself, and more than once. Even when the plaintiff does give one version of a particular event, that version often has internal inconsistencies. In addition, the plaintiff manifestly continually gave non-responsive answers. His Honour came to the conclusion on general principles that he did not believe the plaintiff and based that partly on demeanour and partly on the content of what she said. In my view, there is no possibility of challenging his Honour's general finding in this regard. Of the specific grounds taken, the first ground argued today was an allegation that his Honour misquoted the plaintiff's evidence when his Honour said 'The effect of her evidence is that she did not feel specific back pain.' In my view, the plaintiff did say that. There was no allegation of specific back pain. There certainly was an allegation of general back pain but no specific back pain and that is all his Honour was saying. 2 UNREPORTED JUDGMENTS The second ground taken was his Honour misquoted various medical evidence, ie Dr Sekel, Professor Jones and Dr Kendell. I shall not descend to the minutiae of this argument, but in my view there was no such misquotation by his Honour. In one way or another, and sometimes in rather confusing ways, each of these doctors in effect said if one was involved in an accident of the kind the plaintiff alleged and suffered the back injury which the plaintiff alleged one would have suffered pain at the time. The doctors did not say that that was invariably so. The doctors did not say it was necessarily so. They all conceded one way or another that there were some cases in which it would not be so but they nonetheless did give evidence consistent with what his Honour said that in normal circumstances one would expect pain. The third count was a ground that Dr Pouranik did not say that the first complaint of pain occurred in September. The doctor's notes of this September consultation are in evidence and it is the first occasionon which pain in the back in mentioned. It is conceivable, one would have thought, that a doctor who made careful and accurate notes of his patient's complaints would not have made a notation of back pain if it had been mentioned to him previously: but no such mention appears. The next ground relied upon was that insofar as the various medical reports were inconsistent the plaintiff was not cross-examined on those inconsistencies. The decision in Brown v Dunne was relied upon. In my view this is not a breach of the rationale of Brown v Dunne at ail. It was perfectly plain that the plaintiff's version of events was under total challenge and if there were inconsistencies in the medical reports the onus was on the plaintiff to reconcile those apparent inconsistencies. This she did not do. The only other specific ground argued was a ground relating to the May accident involving falling off a bicycle. Her evidence in the witness box was that the May accident involved falling off either a bicycle or a motor bike in a car accident. Another vehicle ran in front of her. For some reason the evidence she gave to the Bankstown Hospital was that she fell whilst running. His Honour described that as a false story. It is difficult to see why his Honour's use of the adjective is inappropriate. His Honour's further comment that if indeed she had a back injury and it was sub-acute and not yet giving pain it would have been rendered painful by abicycle fall. Both comments seem to me to be perfectly appropriate. In my view there is no substance in any of the grounds argued for the plaintiff and the appeal should be dismissed with costs. Handley JA. I agree. Cripps JA. The onus in these cases is on the plaintiff to establish the relevant nexus between the accident and its claimed consequence. This the plaintiff failed to do. I detected in Mr Gross" submission an attempt to smuggle into the law of evidence the proposition that once a ground of carelessness has been proved, the onus is then on the defendant to disprove that a particular consequence occurred. The mere possibility that the plaintiffs condition in September was the consequence of the injury in April would not entitle the judge to find that was so and I would be of the opinion that the appeal should be dismissed. Meagher JA. The order of the Court therefore is that the appeal is dismissed with costs. URJ KELLIE GAYLE REID v SUSAN SKEPEVSKA (Meagher JA) (1) Appeal dismissed with costs. Counsel for the appellant: B J Gross QC/ L Levy Solicitors for the appellant: Blessington Judd Counsel for the respondent: M A Elkaim Solicitors for the respondent: G M Meadows: GIO