MACINKOVIC vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MAHONEY, HANDLEY and SHELLER JJA 11 November 1993, 11 November 1993 [1993] NSWCA 167 DAMAGES — CREDIBILITY BASED FINDINGS — NO QUESTION OF PRINCIPLE Handley JA This is an appeal by the plaintiff, Mrs Stana Macinkovic, from the assessment of her damages by Master Malpass in a reserved judgment given by the learned Master on 20 March 1990. The Master was called upon to assess the plaintiff's damages arising from a motor vehicle accident which occurred on 31 October 1984. Liability was not in dispute. There was a substantial issue at the trial as to the duration and extent of the disabilities suffered by the plaintiff as a result of this motor vehicle accident. The case for the plaintiff was that she had suffered an injury to her neck in the accident and that pain and restriction of movement and disability caused by that neck injury had continued down to the date of trial and that these matters were such as to incapacitate her from any employment in the work force. At the time of the accident she had been employed for some years as a process worker in a food factory. The Master found that the plaintiff had recovered sufficiently from the effects of her accident within some six months and that thereafter she had been fit to return to the work force. He allowed the full claim for out of pocket expenses of $2,224.75, this amount not being disputed by the defendant. He assessed the plaintiff's general damages in the sum of $30,000 and assessed her past economic loss for the closed period of six months at $5,538. He allowed interest on this amount for the period down to the date of trial in the amount of $1,869. Mr Heazlewood who appeared for the appellant, submitted that the reasons of the Master leading to his assessment demonstrated error in a number of respects. I will return to these in a moment. The Master in his reasons summarised the plaintiff's complaints about her pain and the restrictions on her movement, and the extent to which she takes analgesics for the pain. He noted that she had not worked since the accident, had not looked for work and said in evidence that she could not handle work. She said that when she had pain she had to lie down and rest, that she really could not work for more than one hour at a time. She gave evidence of her difficulties in carrying out housework and said she has difficulty with sleeping, that she does some gardening but has to rest regularly. This evidence was challenged by counsel for the defendant at the start of his cross-examination. There is no need to refer to the details. The hearing was then adjourned, and on the adjourned date the plaintiff's cross-examination continued. It was again put to her that she did not have the difficulties that she had described in her evidence in chief and she was then 2 UNREPORTED JUDGMENTS shown short videos taken on 25 January and 26 January 1990, some two months before trial, and she was asked further questions about what those videos showed in relation to her activities. At the start of the trial the parties tendered all the medical reports on both sides. As a result, before the plaintiff came to give evidence in chief the Master had evidence in the defendant's case of the opinions of doctors who had examined her on behalf of the defendant. Dr Burniston had examined the plaintiff on 21 January 1988, a little under four years after the accident. He considered that she had no residual disability and was capable of resuming employment as a process worker if she wished to do so. Dr Scarlett in his reports of 10 October 1986 and 12 April 1988 said that he was unable to find any organic cause for the plaintiff's continuing symptoms and expressed the opinion that they had no physical basis. He said that there was no reason why she should not be following her normal life and work style. Dr Rundle who was the first doctor to examine the plaintiff on behalf of the defendant, in his report of 28 August 1986, expressed the view that the plaintiff was suffering no continuing physical disability in her neck or shoulders and that she had made a full and complete recovery and was fit for work. A similar view was expressed by Dr Dyball. The Master had the benefit of seeing the plaintiff give evidence and be cross-examined, and he also had the benefit of seeing the videos showing her activities in January 1990 and comparing what was there shown with her behaviour in court and her evidence in chief and in cross-examination. The Master said that in the light of the evidence before him he was unable to accept the plaintiffs complaints as to the severity of her injuries. He noted that her complaints were subjective and that on balance the medical evidence did not support her case. He concluded that she was exaggerating her symptoms and preferred the medical evidence for the defendant rather than that for the plaintiff where they were in conflict. He said that he was unable to accept her evidence as to the continuation of her complaints and found that the accident affected her work capacity for only a limited period, but caused some limited interference in her other activities. An appellant who seeks to challenge findings of that nature in a Court of Appeal bears a heavy onus. The High Court of Australia and this Court have emphasised recently and on more than one occasion that an appellate court that has not seen or heard the witnesses is not in a position to disturb credibility based findings such as those made by the Master in this case unless there is something of a decisive nature in the other evidence which shows that those findings are wrong. In my opinion there is nothing of a decisive nature in the balance of the evidence which entitles this appellant to displace the credibility based findings of the Master. Indeed, such objective evidence as there is in the form of the videos was said by the Master to support the defendant's and not the plaintiff's case. There has been no attempt in this Court, by re-running the videos before us, to demonstrate that the Master misunderstood what they disclosed in a way which would entitle the Court to interfere. Mr Heazlewood submitted that there had been some procedural unfairness in the way in which the trial had been conducted and the Master's findings as to the credibility of the plaintiff arrived at. We were referred to the principle in Browne v Dunn [1893] 6 R67. In my opinion the appellant has failed to establish any procedural unfairness in the present case. The medical reports which painted a very different picture of the plaintiff's real condition and contained statements WAACINKOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) that the plaintiff demonstrated a freedom of movement in her neck and shoulders in the course of her medical examinations other than when they were being formally examined were in evidence at the very start of the trial. No doubt those reports had been served on the solicitors for the plaintiff some time before. The issue was therefore joined and it was up to the plaintiff to deal with that evidence in whatever way thought appropriate. In any event the extent of the plaintiff's ability to move her neck was the subject of direct cross-examination from the outset and was the subject of further cross-examination after the videos had been shown in open court. The other substantial matter relied upon in support of the appeal is that the award for general damages in the sum of $30,000 is inconsistent with the award for past economic loss. In my opinion, this attack on the judgment should also fail. It is apparent from the evidence, particularly that of Dr Dyball, that the plaintiff was suffering from a curable condition of photophobia which would affect her general enjoyment of life but not her capacity for work. She had not attempted to have this treated before the trial. In any event it seems to me that the Master has sufficiently set out his findings and reasons. It may be he was somewhat generous to the plaintiff in his assessment of her general damages in a way which is inconsistent with his findings that she had made a full recovery and had no residual disability. There is no cross-appeal from the defendant and no notice of contention, but in circumstances such as the present this Court is entitled, in accordance with the principles in Robinson v Riley (1971) 1 NSWLR 403 to take the view that the verdict as a whole is appropriate in the light of the Master's factual findings and that no case for appellate interference has been made out. I would so conclude. The final matter relates to interest on the award for past economic loss. Mr Heazlewood has been given leave to amend the notice of appeal to add this ground. The Master allowed interest at the rate of 7.5 per cent for a period of four and a half years on the past economic loss from the time when, in his view, the plaintiff had made a sufficient recovery. The Master should have applied a proper commercial rate from that time until trial. Mr Heazlewood submitted that this Court should double the allowance for interest made by the Master. This would increase the judgment by a further $1,869. In my view this course should be taken. I would, therefore, propose that the following orders should be made:- 1. Appeal allowed. 2. Vary the judgment of the Master by adding the sum of $1.869 so that the judgment as amended is for $41,869. The amended judgment to take effect from 20 March 1990. In my opinion the appellant's success on the question of interest which was only raised at a very late stage should not carry the costs of the appeal which otherwise fails. The mistake as to interest could have been corrected by the Master under the slip rule. I would therefore propose that the appellant be ordered to pay the respondent's costs of the appeal. Mahoney JA I agree with what has been said by Handley JA. In view of the submissions made I would add three short points. One, I agree with what his Honour said, that the condition of the plaintiff in the relevant respect was in issue at the trial and properly put in issue. It was put in issue by the medical reports. I think it was put in issue also by questions asked of her in cross-examination. It 4 UNREPORTED JUDGMENTS was certainly put in issue by the way in which the video was played and I think the invitation was given to her to reply to the obvious effect of it. An attempt was made in re-examination to do this. Therefore, I do not think that this point can succeed. I note Mr Heazlewood has invited the Court to act on the basis of the Master's assessment of the video without playing the video and I am content to act on his request. The second point is that, as Handley JA said, she is accepted to have a phobic disorder that can be cured. I do not doubt the Master took that into account in assessing general damages. The third point is this: A suggestion was made in argument, I think in passing, that a finding for the respondent would involve a conclusion that Mrs Macinkovic was lying in giving her evidence. I do not think that that is so. The assessment of cases of this kind is notoriously difficult. The Master did not in terms make a finding of that kind. His finding was that her complaints were subjective, that she had exaggerated her symptoms in evidence and that because of his impression of her he preferred to accept the evidence of the defendant. That is a finding of a different kind. The finding was made upon the basis of such an assessment. It would be appropriate, I think, that this be made clear to Mrs Macinkovic by counsel at the conclusion of the case. I agree with the orders which have been proposed. Sheller JA I also agree with the orders proposed for the reasons given by the other members of the Court. MAHONEY JA: The orders of the Court will be as proposed by Handley JA. Representation: Counsel for the Appellant: C Heazlewood Counsel for the Respondent R C Tonner Solicitors for the Appellant: Henniker and Beedles Solicitors for the Respondent: G Leeds, Solicitor for GIO, Parramatta