BRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, SHELLER and COLE JJA 18 October 1994, 6 December 1994 [1994] NSWCA 34 JUDGMENTS AND ORDERS — statement of reasons for decision — duty to record and make findings on critical issues — evidence of six lay witnesses referred to but not described — whether mistrial — held (by maj): Not. COURTS AND JUDGES — judges — statement of reasons- duty to consider and make findings on crucial evidence — whether failure to do so in reasons given — held (by maj): No failure. EVIDENCE — expert evidence — opinion based upon premises removed during trial medical experts — whether Court entitled to substitute own opinion. Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 (HC) consd. JUDGMENTS AND ORDERS — statement of reasons for decision — evidential matters — contested assessment of damages following motor accident — dispute as to pre- and post-accident condition of plaintiff — plaintiff calls six lay witnesses on pre- and post-accident conditions — Master rejects credit of plaintiff and his treating medical practitioner — fails to refer to evidence of six lay witnesses — whether such failure amounts to a departure from the judicial obligation to give reasons extending to findings on matters critical to the issue of the case — held (Sheller and Cole JJA; Kirby P dissenting): In the circumstances of the case, the omission of the Master to refer in his reasons to the witnesses' testimony was not crucial and did not warrant a re-trial — the decision rested upon credibility findings and could not be disturbed on appeal. Mifsud v Campbell (1990) 21 NSWLR 725 (CA), distinguished. COURTS AND JUDGES — judges — statement of reasons for decision — evidential matters — critical issues to be recorded and findings made thereon — whether default in circumstances of the case — held (by maj): Not. EVIDENCE — expert evidence — opinion of medical practitioners — based on facts not established by evidence — whether opinions lacking in evidential value — whether Master entitled to substitute his own opinion. Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 (HC), considered. ORDERS Appeal dismissed with costs. Kirby P A superficial approach to this appeal would suggest that it involves achallenge to strongly expressed credibility findings, adverse to the appellant, made by Master Malpass in the Common Law Division of the Supreme Court. Given current doctrine, such an appeal would run into the substantial obstacles presented by such decisions of the High Court of Australia as Jones v Hyde (1989) 63 ALJR 349 (HC), 351; Abalos v Australian Postal Commission (1988) 171 CLR 167, 178f; and Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, 479. However, on closer examination, the appeal is really about a suggested departure from due process of law, occasioning a miscarriage of justice. Variously put, it was asserted that the Master: 2 UNREPORTED JUDGMENTS * failed to provide adequate reasons for his decision, adverse to the appellant; * failed to explain his rejection of critical and apparently believable evidence, supporting the appellant's case; * provided reasons which were internally contradictory; * apparently rejected evidence which had not been challenged as untrue or was not shaken by relevant cross-examination; and * reached a final decision which was based upon conjecture rather than the evidence tendered at the trial. All of this is to say, within the language of the Privy Council in SS Hontestroom v SS Sagaporack [1927] AC 37 (PC) at 47, that the appellant's case was that the Master had "failed to use or has palpably misused his advantage" as the primary decision-maker who saw the witnesses and reached his conclusion with that facility available to him. Within the tests stated in Jones, Abalos and Devries, it is repeatedly acknowledged that the credibility findings of the primary decision-maker must stand "unless it can be shown" that he or she "failed to use, or palpably misused", that advantage. In essence, that is what the appellant asserted had occurred in this case. To evaluate that assertion, it is necessary to outline the issues at the trial, the findings of the Master and the competing contentions of the parties before this Court. SERIOUS MOTOR ACCIDENT - SUBSTANTIAL INJURIES ALLEGED Mr Michael Bruton (the appellant) was injured on 28 August 1985. He alleged that his injuries occurred whilst he was driving his vehicle along the Bell's Line of Road, when an unidentified vehicle, travelling in the same direction, overtook him, causing him to drive off the road and overturn. Liability was in issue at the trial. The Government Insurance Office of New South Wales appeared to defend. On the appeal, the Insurance Ministerial Corporation was substituted as the respondent. By statute, the insurer was, and now the Corporation is, liable for injuries arising out of the negligent driving of an unidentified motor vehicle. Various issues of liability were contested at the trial, although not, apparently, with much vigour. With respect to the Master, the structure of his reasons do not clearly isolate, and first determine, the issue of liability. Instead, the issue is dealt with at five different parts of his extensive opinion, sandwiched between descriptions of the evidence relating to damages. In the end, however, the Master found in favour of the appellant on all issues of liability. He rejected a defence of contributory negligence. No cross-appeal was filed on the issues of liability. The appellant was therefore entitled, by law, to recover the full damages which he proved were attributable to the consequences of the motor vehicle accident. Unfortunately, those consequences were not clear cut. In part, the case was complicated by the fact that the appellant, seemingly an enterprising man prior to {he accident, had pulled himself up from his start in life as an apprentice carpenter (1957-1961), to become the manager of a building company and of a fanning business. The financial records of each of these businesses were naturally produced at the hearing. The trial took place over four days in August and November 1990 and April 1991. The case was decided on 16 April 1991. The records of the building company appeared to show that the appellant's income increased during this interval, save for the 1990 tax year, where there was a reduction, seemingly due to the economic downturn in the building industry. So far as the farm was concerned, it was carried on from 1982 in partnership with the appellant's wife. The evidence suggested that the income from this activity URRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB had also improved in the post-accident years. Thus, because of his business enterprise, the appellant faced the substantial difficulty that the proof of his loss of earnings was more difficult than it would have been in the case of an ordinary worker earning weekly wages. For most of the time after the accident, the appellant's claim was more properly seen as one or loss of earning capacity, as distinct from actual income loss. The second complication was more substantial. Because he suffered no frank fracture or objectively demonstrable injury in the motor accident, the appellant's various complaints of disabilities were largely dependent upon his description of them. Medical evaluations of that description necessarily depended, in the case of all but one of the medical witnesses (Dr Harry House, who had been his general practitioner for three decades), upon the history which the appellant gave to the medical practitioners. Unfortunately, this history was, in each case, inaccurate, incomplete and in some ways, misleading. That fact presented very real difficulties to the Master, to which I shall have to return. It undoubtedly also presented difficulties for the appellant. It meant that the usefulness of medical opinions, based upon the inadequate or incomplete histories, was undermined. Alas, this is another case where the only oral medical evidence called at the trial was that of Dr House. Sorting out the extent of the appellant's complaints unproved or attributable to the motor vehicle accident, and those unproved or attributable to other pre-existing injuries and disabilities, became a major issue at the trial. In the resolution of this problem, the expert medical evidence was ultimately of limited assistance only. Vital in these circumstances was the other evidence available to assist the Master to determine the appellant's pre- and post-accident physical conditions. There was a third possible difficulty for the appellant. A video film was taken of his activities in February 1990. As described, it showed him working at a job site where he "appeared to be carrying out his work activities in a normal and unrestricted fashion". However, this film does not appear to have counted for much in the resolution of the case. The Master observed that during the course of submissions, neither counsel made any reference to the video. Neither party to the appeal asked the Court to view the video. It can therefore safely be disregarded. THE MASTER'S ASSESSMENT AND FINDINGS In resolving the disputes concerning the extent of the damage which flowed from the subject motor accident, the Master expressed, at a number of points in his reasons, adverse conclusions which undoubtedly rested, mainly if not wholly, upon the poor impression which the appellant made upon him as a witness of credit. Some of the findings were: * "His evidence as to his business activities was somewhat unreliable. " * "T closely observed the demeanour of the plaintiff during the giving of his evidence. I formed the impression that he tended to reply to questions with vague responses which sought to avoid an answer to the question. His manner was evasive. I am of the view that his evidence must be treated with the greatest of caution and in many respects cannot be accepted. He did not strike me as a credible or reliable witness. He professed to express difficulty in recalling any matter which tended to adversely affect the case he was propounding in these proceedings." * "Generally speaking, he professed an inability to recall matters relating to pre-accident complaints. This included a pre-existing back complaint, for which he was required to have x-rays in April 1985, a few months before the accident. 4 UNREPORTED JUDGMENTS Earlier, during his cross-examination, he professed to have no substantial back complaints (a pulled muscle or something like that), no knee or neck complaints and no stomach problems, prior to the accident. He clearly sought to convey an untrue picture of his pre-accident condition. He did this both to the Court and to doctors." * "The plaintiff, in my view, is not a credible witness. He sought to deceive the Court and the doctors. He has given false or misleading histories to the doctors." The Master also expressed adverse comments about the one medical practitioner who gave oral evidence, Dr House. The Master was critical of the failure of Dr House to provide medical experts to whom he referred the appellant with details of the appellant's pre-accident complaint. Dr House was undoubtedly in the best possible position to provide such information, having been the appellant's family doctor for so long. He explained his failure by reference to his busy practice. However, a full knowledge of the appellant's previous injuries and disabilities did not cause him to embrace the thesis ultimately accepted by the Master, namely that the motor accident had caused a very short exacerbation only of pre-existing disabilities or vulnerability of the neck, back, knees, left shoulder, gastritis and headaches. As these were the continuing disabilities of which the appellant complained, the view of the impact on them of the subject accident explained the very modest judgment which ie Master eventually returned. At three passages in his reasons, ie Master criticised Dr House: "[The appellant] clearly sought to convey an untrue picture of his pre-accident condition He did this both to the Court and to doctors. The conduct of Dr House assisted this being done. I discerned an intention to attribute any physical problems that he may have had to the accident. " * During his cross-examination, Dr House said that he had not brought, to the attention of Dr Harrison, the plaintiff's prior history of back pain. He had not brought the x-rays to Dr Harrison's attention. He said that he probably should have referred the history of back pain to the specialist and given him the x-rays. He had not told Dr Harrison of the plaintiff's prior problems relating to his right shoulder. The plaintiff suffered from rotator cuff syndrome and any movement in the shoulder would cause him pain.... He didn't tell Dr Ruppin that the plaintiff had had a prior history of gastrointestinal complaints... He conceded that he did not give any indication of the plaintiffs previous medical problems to any of the other doctors." * "Dr House failed to give details of prior history and/or x-rays to specialists to whom he had referred the plaintiff. He has conceded that in some instances he should have made such information available to them. Dr House had been his treating general practitioner for about thirty years. I formed the impression that he was concerned to do his best to advance the plaintiff's claim. In my view those medical opinions, which have been based on false or misleading histories, must be treated, at the very least, with considerable caution. Much opinion cannot be relied on. Generally speaking, the opinions expressed, inter alia, as to the relationship between the plaintiff's condition and the accident cannot be accorded much, if any, weight." It is against the background of these strongly expressed opinions as to the credibility of the appellant and the reliability of the main medical practitioner who had seen the appellant before and after the motor accident, that the Master approached his assessment. He allowed: General damages $30,000.00 URRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB Out-of-pocket 1,000.00 expenses Past economic 10,000.00 loss Interest on past 4,675.00 economic loss Judgment $45,675.00 It is from that judgment that the appellant has appealed to this Court. By his supplementary notice of appeal, the appellant expressed his complaints in three categories: (1) failure to award the appellant any damages for loss of future earnings; (2) awarding only a portion of the amount expended for treatment; and (3) failing properly to consider and analyse the evidence called on behalf of the appellant. The first and second categories (grounds 5 and 6) are clearly dependent upon the assessment which the Master reached concerning the extent of the appellant's complaints which were attributable to the motor accident. As the conclusion in that regard rested, in large part, upon expressed findings as to the credit of the appellant, and as no evidence was demonstrated which made the Master's conclusions "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable", those grounds of appeal must fail. So far as the grounds of appeal concerning the suggested failure of the Master properly to consider and analyse all of the evidence adduced on behalf of the appellant is concerned, a complaint was included about the Master's treatment of the evidence of Dr House. But eventually, it was conceded, rightly I think, that this argument could not succeed. In the light of the concession by Dr House that he could, and should, have made a fuller history available to the doctors to whom he referred the appellant, the criticisms voiced by the Master (even if this Court were to disagree with them), were clearly available to him. They are insusceptible to correction because they rested, in part, upon the impression which Dr House made upon the Master as a witness. This leaves, as the sole remaining viable complaint of the appellant, his suggestion that the Master failed to take any, or any proper, account of the evidence of six witnesses who were called to give evidence in the appellant's case. THE SUGGESTED FAILURE TO CONSIDER THE EVIDENCE OF SIX WITNESSES There is no doubt that the Master failed to analyse in his reasons the evidence of the six lay witnesses whom the appellant called in his case. At one point, he did catalogue their testimony: "On behalf of the plaintiff oral evidence has also been given by his sons (Stuart James Bruton and Bradford Michael Bruton), Messrs Ritchie, Ercey, Hawker and Louis. In addition further medical evidence including reports from Drs Seaton, Clyne and Dan has been tendered." But this represents a mere chronicle of the fact that they gave evidence. It does not give the reader of the Master's reasons the slightest idea of his conclusions about the evidence or what part, if any, of their evidence that the Master accepted, rejected or otherwise took into account. 6 UNREPORTED JUDGMENTS The appellant urged that this was a critical omission. It was vital because the evidence of the six witnesses represented the very way in which the appellant had sought to demonstrate the impact on his life of the injuries for which he claimed damages. Calling reliable witnesses to describe the condition of an injured person before and after injury, is a common forensic means of establishing the injury's impact upon a plaintiff, particularly where the injury is not objectively provable. Counsel for the respondent conceded, as he was bound by the record of the Master's reasons to do, that there was no analysis of the testimony of the six witnesses. However, he asserted that this was because the Master had accepted that the injuries did have an impact on the appellant, but only for a strictly limited time. Because the testimony of the witnesses was imprecise and did not add to the differentiation of the damage caused by the accident and that attributable to other causes, the failure to provide the analysis was irrelevant. To consider these competing contentions, the Court was taken through the evidence of the six witnesses. For this purpose, the appellant accepted that his own evidence had to be ignored in light of the Master's credibility finding. He rested his case upon the complete omission of any apparent consideration of the six lay witnesses whom he had called. The first such witness was the appellant's son, Mr Stuart Bruton. He was actually in ie passenger seat at the time of the motor accident. But his evidence was principally directed to the effect which the accident had had on his father's work. "Q. Prior to this accident, did you recall if your fother went to work or not? A. Yes. he did. Q. Do you recall what type of clothes he used to wear to work? A. Just shorts and shirt - a t-shirt... Q. Did you ever observe him when he came home in the evening, before the accident? A. Yes. Q. Was his appearance in any way different to when he left in the morning? A. Yes, he was dirty; quite dirty and a different appearance to what he was in the morning. Q. After the accident did you notice any change in his appearance? A. Yes. Most of the time he was in the office. He never left early to go to work. I would come home and he would still be in the office." Mr Bruton also complained that following the injury, his father had given up playing cricket and kicking a football around. In cross-examination, the same witness deposed that he was apprenticed to his father as a carpenter. At the time of the trial, he was in his third year of that apprentice. After the accident, his father would perform carpentry on the building jobs. But only rarely. "Q. He still takes his hammer to work doesn't he? A. Not that I know of. It's all in the workshop, his tools and that. A. His nail bag he still takes to work with him? I don't know really. I think that's in the workshop or, where it is I don't know." In re-examination, the witness gave the following evidence: "Q. At the present time are you aware if you have a subcontractor carpenter or are you not aware? A. Yes we have. Q. And is carpentry work the work your father used to do? A. Yes. Q. Is it fair to say that from time to time you have been there for three years but you have employed some subcontract carpenters during the last three years? A. Yes we have." URUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PY The next witness was Mr Bradford Bruton. He was another son of the appellant. He had formed his own building contracting company. He gave ie following evidence: "Q. Before the accident were you aware if your father was working in his occupation? A. Yes he was. Q. After the accident did you do anything in relation to the work that he was doing? A. Yes, I finished off a job or two for him directly after the accident and then I'd been working on and off for him since then. Q. And have you observed - if your father does the carpentry work now? A. No he doesn't - not to my knowledge at any rate do any carpentry work. He has at different times come out to the job but he does very little. Q. Since the accident have you ever observed him endeavour to carry out any carpentry work? A. There could have been one or two occasions when he tried to do a little bit but he wasn't very successful at it." The witness was not cross-examined to suggest that his evidence was false: "Q. Apart from the few jobs you had to finish off for him at the time of the accident, it hasn't changed that much, has it? The situation hasn't changed much so far as you are concerned has it? A. I have done a lot more work for him over the past five years than what I would have previous to the accident." This exchange led to ie following re-examination: "Q. Did he ever appear to have any trouble doing his work as a carpenter before the accident? A. No, not before the accident." The third witness was Mr Kenneth Ritchie. He had known ie appellant for twenty to thirty years. As to the accident's impact, he gave the following evidence: "Q. Before the accident how would you describe his personality? A. He was [a] pretty happy-go-lucky sort of person. He was very involved in different clubs. He was a life member of the Penrith Leagues Club and St Pat's College Bankstown, and since the accident his sports dropped by the wayside. He doesn't play tennis anymore or cricket and I see quite a lot of him going to the doctor because he goes past my business all the time. Q. Have you noticed any change in his moods since the accident? A. I think that Mick has aged a lot in the last four or five years. He seems to have slowed down a lot. Q. When you say "slowed down" is that in his manner of walking or his flexibility or what? A. Yes. In his manner of walking and what he wants to do. He has just gone backwards. Q. When you say he has gone backwards, does he walk slower? A. His whole gait is slower. Mick used to be pretty athletic. He used to run a lot and things like that, but now he just takes it very slowly. Q. Since the accident has he made any complaints of pain to you? A. He has called into the shop there and has had to sit down when going to the bank and that and I said 'What have you been doing?' and he said 'I tried to do this or that, I tried to do that'. This is over the last three or four years and I always know that he has been trying to do something because he seems to suffer the next day or a couple of days later... Q. And then has he said what was wrong with him? A. Yes, his back is aching up around his neck, and that. 8 UNREPORTED JUDGMENTS Q. In terms of his moods have you noticed any change? A. He gets very irritable. Q. Have you never seen him working. A. No I haven't. " The witness also described the appellant's difficulty of posture: "Q. Does he appear to have any problems playing cards? A. Yes. He can't sit up for any time; he gets up and goes for a walk up around the table and he might stand up and play a couple of hands. He is having a couple of tablets all the time." The cross-examination of this, as of other witnesses, was directed mostly to the appellant's sporting prowess. But the following questions were asked: "Q. Did he ever complain to you about any aches and pains before the accident? A. Not before, but since the accident he won't carry anything because he reckons it makes his back ache. Q. Have you ever known him to take any time off work before the accident? A. No. Mick has always been a bit of a workaholic really. He is not one to shirk his responsibilities and that." The fourth witness was Mr John Ercey, a carpenter who had worked for the appellant as a subcontractor. His work was in 1987, ie after the accident. He is therefore of no utility in differentiating pre- and post-accident capacity. However, he did provide descriptions of the appellant's on-site capacity as he observed it: "Q. During the time whilst you were there when he visited the jobs, did he appear from your observations to carry out any carpentry work? A. No carpentry work, no. Q. Are you able to tell us how you could describe carpentry work as heavy, light or moderate and what is the position? A. Carpentry work covers mainly physical labour lifting, setting out the jobs and just organising subcontractors." The fifth witness was Mr Bruce Hawker, also a carpenter, who worked as a subcontractor to the appellant. He described the observation of the appellant about the site: "Q. Did he ever make any complaints to you or pain? A. Well, I noticed by his movements that he was not very free in most situations. Q. How did you notice that? A. The way he used to normally walk around very slowly and sometimes if he spent time on the job and if anything had to be done he would ask somebody else to do it. Q. Have you ever seen him do anything or lift anything? A. Well the only thing he has lifted is maybe a small object that has been on the road, or something like that - pick it up and throw it to the side. Q. Have you observed anything about his neck in relation to reasonably full movement? A. He probably seems to be a little bit stiff. He hasn't complained to me about neck problems." The cross-examination of this witness was designed to show that carpentry was a job which, of its nature, puts stress on the lower back, something with which the witness unsurprisingly agreed. The last witness in the series was Mr Patrick Louis, a plumber. He had known the appellant for about twenty-five years. He had worked for him, on and off, over that period. He was aware of his accident in 1985. He was asked: "Q. When you spoke to him after the accident, did he tell you anything about any troubles he had? A. Yes. I asked why - he looked sick. He did not look well at all and I asked what was wrong and he explained about the accident. Q. Did he mention if he was having any problems as a result of the accident? A. Yes he said - back and his neck. URRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby PB Q. Before the accident did you work for him over a number of years as a sub-contractor? A. Yes, early - it has been an on and off affair. I might do two or three jobs - he sort of gets prices - you know - and says you know, if you want it, that's the price and if you don't want to do it at that sort of price, I won't. Q. During the times you worked for him before the accident have you observed if he has been at the job or not? A. Yes. He always runs the job - he is on the job all the time you know working. Q. When you mean working, where? A. He is the foreman. Q. What about carpentry? A. Yes, well, he is always doing carpentry frames and stuff. Q. How would you describe his health? A. Nothing wrong with him, excellent. Q. His fitness? A. Great. Q. Did you continue to do from time to time subcontracting work for him after the accident? A. Yes. Q. Did you observe if he continued to do the work himself or not? A. No, before the accident, if you wanted to see him, he was on the site and if not, you would ring him at home. Q. After the accident? A. After the accident he would be at home. You very rarely see him on the site. Q. Subsequently to the accident have you ever seen him on the site? A. Yes. Q. Have you ever observed him doing anything in terms of carpentry work? A. Maybe drive a nail or two, but that is about it - mainly just directing other people." Mr Louis was asked eight questions in cross-examination. They showed that he had been working for the appellant probably twelve months before the accident. He was asked whether he knew that the appellant had gone to the doctor before the accident and he answered in the negative: "Q. As far as you are aware he never went to the doctor? A. No. He was a fairly healthy sort of fellow, always a fairly good sportsman. That was the main interest between us. We both coached football sides." The respondent's comment that much of the foregoing evidence of the six witnesses was imprecise, is reasonable. It can also be said that two of the witnesses were members of the appellant's family and others were his friends. One of the witnesses is only able to speak of the post-accident time. But that leaves five witnesses who portrayed the appellant, pre-accident, as a fairly active man, with keen sporting interests, regularly on the job sites and regularly performing carpentry work. After the accident he was slower. He tended to keep away from the job sites. He was constantly complaining of pain or stiffness, especially in the back and neck. With respect, it is naive to treat as compelling the fact that a carpenter, working in heavy activities, has occasional back and shoulder pain before the dramatic car injury sued on. Most carpenters would have such back and shoulder disabilities from time to time. They are to be distinguished from the serious injuries suffered by the appellant when he was forced off the road, travelled through 20 metres and hit a tree causing his vehicle to overturn. The Master's failure to refer to the evidence of the six lay witnesses, becomes significant when it was noted that on two occasions, after indicating his poor impression of the credit of the appellant, the Master stated that there was no "corroboration" to confirm the appellant's testimony. Thus, at one point in his reasons, the Master said: 10 UNREPORTED JUDGMENTS "He was a man who saw doctors more often than others. IN THE ABSENCE OF CORROBORATION I am unable to accept his evidence as to his pre-accident and post-accident condition. " (emphasis added) Later, he said to the same effect: "In the ABSENCE OF CORROBORATION, I am unable to accept the plaintiffs oral evidence on the matters pertaining to his claims for economic loss. Prior to the accident, he had suffered other injuries and was disabled by a number of physical problems.... His accident injuries must be viewed in this context" (emphasis added). The appellant urged that the very disbelief by the Master of the evidence which he had given, made it all the more critical for the Master, using to the full the advantages which he had as the primary decision-maker, to take into account and deal with the "corroboration" which the lay witnesses he had called, offered. Far from there being an "absence of corroboration", there was confirmation of the change in the appellant's life that was brought about by the motor accident. To that extent the Master's statement that there was an "absence of corroboration", was wrong. It converted the failure to do more than chronicle she calling of the lay witnesses from an apparent oversight, into a critical mistake which undermined the integrity of the Master's decision. THE APPLICABLE PRINCIPLES The principles applicable to the submission to which this appeal ultimately came, are not really in doubt: 1. The duty of a judicial officer to provide reasons for his or her decision is, in Australia, an incident of the very nature of the judicial office. It is not a universal duty. It does not apply to every judicial decision. But it certainly applies to the final determination of a claim which is made by a person for lawful compensation arising from accepted liability of a tortfeasor (or its representative). See Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666. Not only must reasons be given by a judicial officer to permit an appellate court to perform its function. See Pettitt v Dunkley [1971] 1 NSWLR 376 (CA), 388. It is now regarded as "an incident of the judicial process". See Housing Commission (NSW) v Tatmar Pastoral Co [1983] 3 NSWLR 378 (CA), 386; 2. Nevertheless, it is not a requirement of our law that a judicial officer must, in providing reasons, review each and every witness's evidence to indicate which witness is accepted or rejected and what is made of the evidence of each. It is enough that the judicial officer should expose the grounds for the decision. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), 273, 280. It is not requisite that lengthy or elaborate reasons should be provided. See Ex parte Powter; Re Powter and Anor (1945) 46 SR (NSW) 1, 5. The Courts have declined to impose inflexible rules lest this add unnecessarily, and without commensurate utility, to the burdens of judicial decision-making and opinion writing. See generally MD Kirby "Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory" (1994) 12 Aust Bar Rev 121, 126f; 3. Nevertheless, where a judicial officer determines a matter of importance to the resolution of a matter for trial adversely to the interests of a party, it will usually be obligatory for the judicial officer to ensure that the adverse suggestion is adequately presented (either by counsel for the party or by the court itself), so that the party or witness has a fair opportunity to meet the adverse conclusion. This is not a rigid rule, inflexible in its operation. It is a requirement of procedural fairness. Like the giving of reasons itself, it is an incident of the judicial office. UARUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby Ry See Vakauta v Kelly (1989) 167 CLR 568, 571; Galea v Galea (1990) 19 NSWLR 263 (CA), 279f; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 (SC), 18; 4. Another incident of judicial duty is the obligation of the judicial officer to consider all the evidence in the case and, in giving reasons for judgment, to express the findings on those parts of ie evidence which are critical to an issue in the case. In Misfud v Campbell (1990) 21 NSWLR 725 (CA), Samuels JA, at 728 expressed this elaboration of ie foregoing rules thus: "Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings must depend as the duty to give reasons does, upon all the circumstances of the individual case. ... [A] failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge... may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and appearance of justice having been done. If it does... then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. Samuels JA's opinion in Mifsud was concurred in by Clarke JA and Hope A-JA in that case. Clarke JA (at 729) took as his criterion whether the: "deficiencies in the judgment [were] indicative of an unsatisfactory or incomplete reasoning process which has led to a judgment based on grounds which are unsupportable". In such a case, it can be said by the appellate court that the primary judicial decision-maker has not taken proper advantage of having seen and heard the witnesses. This conclusion permits the intervention of the appellate court. See Patterson and Anor v Patterson (1953) 89 CLR 212, 224; Thomas v Thomas [1947] AC 484 (HL), 487f. It permits the appellate court to pass beyond the gate which is otherwise barred and marked with the sign "Credibility findings - appellate courts keep out". Although that sign strongly protects the primacy of trial judges, and defends the principle of finality of litigation, it cannot neuter the appellate process which Parliament has provided. Where the judicial officer's reasoning is defective, the appellate court has its own duty to defend the integrity of court process. Cf Phillipe v Government Insurance Office of New South Wales, Court of Appeal (NSW), unreported, 1 March 1994; [1994] NSWJB 21; and 5. For expert evidence to be of any value to the decision-maker, the facts upon which the expert opinion is based must be proved by admissible evidence. See Ramsay v Watson (1961) 108 CLR 642, 647; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 (HC), 87f. This does not mean that the facts proved must correspond "with complete precision;' to the propositions on which the opinion is based. But there must be a sufficient concurrence so that the opinion does not rest upon a different and irrelevant foundation, leaving it in 12 UNREPORTED JUDGMENTS doubt as to whether significantly different premises would occasion a different conclusion. See Paric, 88. Where a trial judge has reached a conclusion based upon his or her own suppositions, which are insufficiently founded upon the evidence adduced in the trial because such evidence is undermined by the failure to prove the premises upon which it was based, the opinion stated may be set aside to prevent a miscarriage of justice. Cf Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 (CA), 586. CONCLUSION: THE TRIAL MISCARRIED I regard this case as being at the borderline. The Master's reasons are detailed. They recount at length the course of the trial and much of the evidence relating to damages. They describe the complaints of the appellant. They record, in the several passages cited and others, the poor impression which the appellant clearly made upon the Master. However, for a number of reasons, I have come to the conclusion that there has been a miscarriage which may have occasioned a serious injustice to ie appellant. This requires a re-trial. My reasons are: 1. The crucial issue for the Master to determine was ultimately the impact of the accident, for which liability was proved. It was to distinguish its consequences in damage and loss, from other conditions of the appellant present before the accident. It was to that end that five of the six lay witnesses were tendered. Their presence in the trial is mentioned. It is true that their evidence was sometimes imprecise. But it is completely ignored in the Master's reasons. It seems to me that this falls short of the standard required by the principle expressed by a unanimous Court in Misfud; 2. It is not as if it was easy in this case to ignore the six witnesses. After all, apart from the appellant and Dr House, they were the only witnesses who gave oral evidence. As I have indicated, there were comments upon the unreliability or unacceptability of the evidence of the appellant and Dr House. But about the evidence of the six witnesses, there is total silence. The Master may have been impressed or unimpressed by them. He simply does not say; 3. Despite the imprecision of much of the evidence of the six, their testimony does paint a picture of the appellant as a person who was much more active before the motor accident than after. The condition after is not confined to months but is expressed in terms of years. Even if the sons are discounted as family, there was no apparent reason why the other citizens who gave evidence should be discarded as irrelevant or unbelievable. At the least, it was necessary that there should be some comment upon the reconciliation of their description of the appellant before and after injury and the Master's conclusion that the impact of the injury was slight, even trivial. Whilst the appellant might not have been able to establish loss of earnings (because of the income from his two businesses), he was entitled, by law, to damages for loss of earning capacity if he could prove that the accident had reduced his capacity to perform physical duties on his building contract sites; 4. Upon his stated premises, ie Master's reasoning is also unsatisfactory. He said that he was "unable to accept [the appellant's] evidence as to his pre-accident and post-accident condition... in the absence of corroboration". Allowing that in the "corroboration" means, in this context, some other confirmatory evidence, it became essential for the Master to say why the evidence of five of the six lay witnesses, tendered for precisely that purpose, did not rise to the point of some measure of confirmation to distinguish the appellant's proved pre- and post-accident conditions; UBRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Shells JA) 5. In the end, the Master's conclusion rests upon his own substitution of his evaluation of the medical evidence for that tendered in expert opinions before him. Dr House, was the one medical practitioner who attended the appellant for a substantial time before and after the motor accident, certainly did not embrace the Master's opinion. Dr D Spencer saw the appellant before injury (including on 16 August 1985) in respect of his right shoulder - but not in respect of his back. Specifically in relation to the back condition, Dr House rejected the suggestion that the pre-accident back trouble was either the cause of continuing disability or an indication of a condition which amounted to the cause. He adhered to his opinion that the motor accident was the governing cause. The Master was left with a series of medical reports which, through no real fault of the writers, were based upon inaccurate or incomplete histories. One must have sympathy for the Master in this predicament. This Court has previously had occasion to refer to the near impossibility which is presented to a decision-maker, of choosing between medical reports in direct contradiction of one another, without the benefit of at least some relevant oral evidence. To this difficulty was added, in the present case, the fact that the opinions were expressed upon premises significantly knocked away during the hearing. Of course, it was for the appellant to prove his case. But the Master did not resolve the quandary thus presented to him on the basis of the onus. Instead, he elected for his own opinions which, with respect, do not appear to have a fin foundation in the opinions of the experts tendered; and 6. It is noted that the hearing of this trial took an unusual course. The hearing began in August 1990. It continued in November 1990. The lay witnesses were concluded in August 1990. The hearing was then stood over until April 1991 when the video film referred to was shown. The appellant was then recalled. The Master's decision was given in April 1991. In these circumstances, it is at least possible that the impact of the lay witnesses was forgotten in the eight-month period between their testimony and the decision. But whether it was or was not, no mention was made of what they had said or what was made of it. On the contrary, reference was made to the lack of relevant "corroboration". This leaves me with a sense of disquiet. It was common ground that this Court could not substitute its opinion of the appellant's damages. There must be a re-trial. That is unsatisfactory and expensive. But it is the price our system of justice accepts for the very high standards that it insists upon in the performance by all judicial officers of their judicial function. Orders The orders which I favour are: 1. Appeal allowed; 2. Set aside the orders of Master Malpass; 3; Order a re-trial of the plaintiff's action, limited to the assessment of his damages; 4. The costs of the second trial to abide the outcome of the third; 5. The respondent to pay the appellant's costs in the appeal, but to have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. Sheller JA INTRODUCTION I have had the benefit of reading the judgments prepared by the President and Cole JA. The appellant, Michael Kenneth Bruton, appeals from a decision of Master Malpass of 16 April 1991 awarding him a verdict and judgment of $45,675 on the ground that the award was inadequate and against the evidence. 14 UNREPORTED JUDGMENTS MOTOR VEHICLE ACCIDENT The appellant, who was born on 7 November 1941, was injured in a motor vehicle accident which occurred at 4.45 pm on 28 August 1985. At the time of the accident he was aged forty-three. He was driving in an easterly direction along Bells Line of Road, near Kurrajong, in the kerbside lane, when overtaken by another vehicle which pulled in front of his vehicle causing the appellant to swerve to miss it. The other vehicle and its driver remain unidentified. The appellant lost control and his vehicle collided with a tree and rolled over down a hill. The appellant's son, Stuart James Bruton, was a passenger. After the accident the appellant and his son went to Baulkham Hills Medical Centre where his injuries were recorded as bruising to front chest "minor SL/whiplash to neck." PROCEEDINGS The appellant sued the respondent in negligence to recover damages for and consequent upon his bodily injuries. The Master found that the unidentified vehicle had been driven in a negligent manner. That is not now in dispute. The nature and extent of the injuries suffered by the appellant in the accident remains in dispute. By the time the evidence had concluded the appellant's claim was confined to one for injuries to his neck, back, knees and left shoulder, headaches and a gastro-intestinal problem. He made no claim as a result of any injury to his right shoulder. THE APPELLANT'S CASE At first the appellant's case was that until the date of the accident he was in good health and had none of the disabilities from which he claimed he suffered after the accident. This may be illustrated by the following extract from his evidence under cross examination: "Q. Prior to the accident did you have any problems with your back? A. No, not that I can recall. I probably had over the years - I have had a pulled muscle or something like that, muscle or shoulder or arm or something like that, sort of thing. Q. But no other... A... Nothing substantial. Q. What about your neck, Have you had any problems with your neck prior to the accident? A. No, not prior to the accident. Q. You went to see a doctor about your stomach problems? A. That is correct, yes. Q. Who was that, Dr Ruppin? A. Dr Ruppin it was. Q. You told him when you saw him that prior to the accident you did not have any problems with your stomach or any gastro problems? A. I would imagine so. That is five years ago and I could not remember what I told him. Q. But certainly before the accident you did not have any gastro intestinal problems? A. No, no problems with the stomach. Q. No problems? A. No. Q. What about your knees, did you have any problems with your knees prior to the accident? A. No, no problems with the knees. Q. Did you ever go to a physio at all before the accident? A. I don't think I did. No, I don't think I have ever been to a physio before the accident." Q. Did you ever get headaches? A. No, I never used to. Q. Never went to the doctor for headaches? A. Not that I can recall, unless I had one - I certainly went in with the flue a few times and that and probably had headaches with that." UBRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Shells JA) The appellant called Dr House, the general practitioner who had looked after him for about thirty years, to give evidence and tendered reports from a number of specialists, namely: Dr John Harrison, an orthopaedic surgeon, who first saw the appellant on 31 January 1986; Dr David Ruppin, a gastroenterologist, who first saw the appellant on 3 February 1986; Mr Rudi van Kessel, a physiotherapist, who first saw the appellant on 23 September 1985; Ms Victoria Egan, a physiotherapist, who first saw the appellant on 5 May 1987; Dr DG Seaton who first saw the appellant on 27 May 1986; Dr PR Clyne, a family physician, who first saw the appellant on 15 January 1986; and Dr Noel Dan, a neurosurgeon, who first saw the appellant on 3 July 1989. In none of the reports of any of these persons is reference made to any pre-accident injuries, symptoms or complaints by the appellant. On 27 July 1989 Dr Ruppin reported that the appellant described himself as "being a happily married builder who had been in excellent good health until a motor vehicle injury in August 1985 Prior to his accident he had no gastrointestinal complaints." Dr House said the following in evidence about the appellant's back problems: "Q. If you could just assume that the plaintiff was working for 2, 3, 4 weeks prior to the accident, would that demonstrate anything to you in respect to the severity of any back problem he might have had in April 1985? A. Considering the nature of his occupation as a builder, lifting 4 by 2 roof trusses and things like that, it indicates he had had complete virtual recovery from any accident he had. Q. In your notes you ascertained that he suffered back pain from pulling a peg out of the ground? A. Yes. Q. The fact he had been working prior to the accident shows recovery? A. Yes that's normal. Q. Assume for the moment that subsequent to the accident he had continued to complain of back pain and had not been able to carry out work that required bending or lifting heavy weights or things that required applying stress to the lumbar area, would that demonstrate anything? A. Yes. He most probably had suffered new injury or aggravation to a previous injury during the accident and it continued on. Q. Assuming the accident was where he had run off the road, travelled a distance of 60 feet or so and hit a tree, the vehicle overturned and subsequent to that he has been complaining of lumbar spine difficulty, would that help you come to any view as to whether his present complaints of backache are related to the accident or to any complaints he made in April 1985? A. One could not be absolutely certain. I would imagine and I always thought his present back injuries are almost certainly due to the accident he had subsequent." The cross examination of Dr House revealed that the appellant had in May 1968 complained of and been treated by Dr House for pain in the lower back. In April 1985 he complained of pain in the lower lumbar spine and was sent for x-rays which indicated degenerative changes at T11-T12, T12-L1 and L1-L2 and a spina biffida occulta deformity at S1. In November 1970 the appellant complained of a sore left shoulder which had continued for three months and which Dr House diagnosed as a torn deltoid muscle. In May 1972 Dr House 16 UNREPORTED JUDGMENTS found some epigastric tenderness, in March 1976 again epigastric discomfort and in January 1977 nocturnal indigestion. On 2 January 1979 the indications were that the appellant had had indigestion on and off for two years. At that time he underwent a contrast x-ray of the stomach (barium meal). On 31 January 1979 the appellant was found to have a mild to moderate reflux. In August 1979 he complained of frontal headaches and again in September 1981. In 1982 the appellant had problems with his right shoulder. This led to his being referred to Dr Spencer, a specialist rheumatologist. By December 1982 the appellant was also complaining of pain in his right knee. He was given anti inflammatory medication and a pain relief tablet. In January 1984 he 'complained of pain in his wrist. Dr House found a tendon sheaf cyst in his forearm. In May 1984.the appellant fell into a hole one foot deep at work whilst walking backwards and twisted his right knee. He complained of pain on the inner side of his right knee. In October 1984 he was again referred to Dr Spencer because of pain in his right shoulder. In December 1984 he went to see Dr Spencer and again in August 1985. On 16 August 1985, less than a fortnight before the accident, Dr Spencer reported: "His right shoulder had again become painful at work and he has had the last three weeks off work where anti inflammatories in combination with rest seems to have made quite a marked improvement.... I have however suggested that when he starts back at work, should the shoulder become painful then it would be worth injecting it at that time to try to reduce the period of time off work." The appellant gave evidence and called six lay witnesses: * His son, Stuart Bruton, gave evidence that prior to the accident he recalled his father going to work wearing just shorts and a T-shirt. When he came home in the evening he was dirty and had a different appearance. After the accident the appellant spent most of the time in the office and never left early to go to work. Asked if the appellant complained of pain the son said: "Yes in his back, his hip and a fair bit of his shoulder." Asked about his sporting activities he said the appellant "played cricket and kicked a football around. Since the accident he had stopped that altogether. His reason was that he had been complaining of his shoulder and he could not move his hip and he could not kick the ball." He rarely performed carpentry work on building jobs. His son, Bradford Michael Bruton, was asked what activities the appellant did prior to the accident. He said the appellant was "basically working on the tools, doing general building work and carpentry work and so forth." Asked did he appear to have any difficulty with it the witness said: "No he seemed to get through it quite OK." After the accident he said the appellant "did not do the carpentry work. He came out to the job but he did very little. On a number of occasions he had complained about his back and neck, legs I think, and knees around that area. He would often comment on how sore his back was. Probably every month or every couple of months I suppose." Asked about the appellant playing squash the witness said at one time he was playing squash every week but he stopped playing. "Q. That was before the accident? A. Yes. Q. He stopped playing before the accident? A. It could have been because of the accident he stopped playing. I can't recall exactly." He said that he had been doing a lot more work for the appellant over the "past five years" than he would have done before the accident. * Kenneth Aloysius Ritchie had known the appellant for twenty or thirty years. He said that before the accident the appellant was a pretty happy- go-lucky sort of person. He was very involved in the activities of different clubs. Since the UBRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Shell JA) accident his sports dropped by the wayside. He did not play tennis any more, or cricket. "I see quite a lot of him going to the doctor because he goes past my business all the time." He said he seemed to have slowed down a lot. He had just gone backwards. He said the appellant had complained of things he had tried to do but been unable to do. His back was aching up around his neck. Before the accident he had seen the appellant coming home from work dirty. Subsequent to ie accident he had never seen him in working clothes. His sporting activities had slowed down. On one occasion he had gone to try to play golf and "reckoned he couldn't play". The appellant had never complained of any injuries prior to the accident. Since the accident the appellant would not carry anything because he "reckons it made his back ache." * John Mark Ercey worked for the appellant in 1987. The appellant visited jobs once a week. He did not observe the appellant doing carpentry work. * Bruce Gordon Hawker had been doing sub-contract work for the appellant's company for approximately four months. He said the appellant came to the site two or three times a week for about five minutes. Asked if he ever made any complaints of pain the witness said he noticed by his movements that he was not very free in most situations. Asked about his neck in relation to reasonably full movement he said he probably seemed to be a little bit stiff. "He hasn't actually complained to me about neck problems." * Patrick William Louis had known the appellant for about twenty five years. He said he spoke to the appellant after the accident. The appellant said he was having problems as a result of the accident with his back and his neck. Asked how he would describe the appellant's health before the accident the witness said: "Nothing wrong with him, excellent." Asked about his fitness he said: "Great." After the accident he very rarely saw the appellant on the site. The only carpentry work he did was drive a nail or two. He was mainly just directing other people. The witness had not really seen the appellant at work during the twelve months before the accident. NATURE OF THE CASE As the evidence emerged the resolution of this case became one of particular difficulty. The Master was satisfied that the appellant suffered some injuries in the accident. There was some aggravation to the appellant's pre-existing neck and back conditions. It could be expected that some headaches might be associated with his neck injury. The Master in the course of his reasons conducted a painstaking review of the evidence. The problem was to gauge the extent to which the disabilities, of which the appellant complained, persisted and the extent to which they were attributable to injuries suffered in the accident. The appellant's medical evidence which should have assisted the Master in the latter task failed to do so. As the Master pointed out Dr House conceded that he did not give any indication of the appellant's previous medical problems to any of the other doctors. Nor did the appellant. In consequence, understandably, the Master took the view that those medical opinions, which had been based on false or misleading histories, had to be treated, at the very least, with considerable caution. The opinions expressed, inter alia, as to the relationship between the appellant's condition and the accident could not be accorded much, if any, weight. The first question put in chief to Dr House, which I have quoted, dealt only with the appellant's back disability and proceeded on the assumption that the appellant was working for two, three, four weeks prior to the accident. Dr Spencer was not called to give evidence but his report of 16 August 1985 was admitted into evidence and stated that the appellant had had "the last three weeks 18 UNREPORTED JUDGMENTS off work". The doctor advised that when the appellant started back at work should the shoulder become painful it would be worth injecting it at that time to try to reduce the period of time off work. THE MASTER'S JUDGMENT Presented with this scanty evidence the Master set about deciding the appellant's claim. The Master concluded, with ample justification, that the appellant was not a credible witness. Dealing with what he regarded as the appellant's principal complaints relating to neck and back pain and headaches, the Master said that the appellant clearly had pre-existing degenerative changes in his back. He had had significant back problems prior to the accident at least since April 1985. He said that the accident probably caused some temporary aggravation of these problems. He was not satisfied that any continuing back complaints could be related to the accident. If the appellant continued to have such complaints, they were more likely to be associated with his pre-accident problems. In the Master's view any neck problem related to the accident should have resolved at least by early 1987 (if not earlier). Any problems persisting in February 1987 were minimal. He referred to Dr Harrison's report of 12 May 1987 that the appellant had seemingly recovered with conservative treatment after 13 February 1987 when he had been complaining of inter-scapular discomfort, shoulder pain, an awareness of restriction in neck movement, left gluteal and thigh pain. Apart from attendances on Dr House the appellant had not required any other medical treatment for his neck and back. On 12 May 1987 the appellant complained of thoraco-lumbar central back pain and radiation of discomfort to both infra-scapular areas. This he began to experience after some mainly carpentry work on | May 1987. Apparently Dr Harrison did not see him again until 23 June 1988. By that time left knee problems were dominant. There were some episodical intermittent back and neck pain occurring perhaps once a month in ie neck and characterised by restricted movement brought about by lifting heavy objects above shoulder height. In his report of 24 July 1989 Dr Harrison said that he last saw the appellant on 17 July 1989 and that he remained a busy, self-employed builder. With respect to his neck he complained of occasional headaches aggravated by lifting. The Master observed that this was the only complaint made to Dr Harrison about headaches. The appellant had some low back pain, which together with other problems, had continued to trouble him about a month before, and which quickly responded to some interventive physiotherapy assistance. The Master said he was unable to accept the appellant's oral evidence as to the continuation of headaches. The appellant has suffered from headaches prior to the accident. Apart from some limited period following the accident, the Master was not satisfied that any continuing headaches could be related to the accident. The appellant had suffered some very mild gastritis for some months prior to February 1986. These problems resolved shortly after he was seen by Dr Ruppin. They had been caused by the treatment given to the appellant by Dr House including aspirin to relieve pain. The Master accepted that on the evidence the very mild gastritis had some relation to treatment received by him in respect of injuries caused by the accident. The Master said that he was not persuaded that any problems the appellant may have had concerning his knees could be related to the accident. He had a right knee problem prior to the accident. The left knee was not the subject of any complaint until 1988. By 13 September 1985 the appellant reported that the complaint of injury to the left shoulder had settled down to a degree. Dr House's UARUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Shell JA) report of 20 July 1988 did not reveal any further complaint relating to the left shoulder during subsequent attendances. Dr House's report of 29 November 1989 referred to the appellant's continuing to have exacerbation, inter alia, of shoulder pain. The report did not relate the appellant's continuing complaints to the accident. The Master considered that the reference to "shoulder" in this report might relate to right shoulder problems and that any injury to the left shoulder (whatever it was) was of a temporary nature and resolved soon after the accident. The Master concluded that the appellant may have experienced some limited interference in his activities by reason of his accident injuries. He was unable to accept the appellant's evidence on these matters. Apart from such limited interference, any problems the appellant "may have had concerning the performance of sporting and other activities were related to other injuries and disabilities." THE APPEAL MUST BE DISMISSED The principles to apply in determining this appeal are well settled. The significant challenge to the decision depends upon one sentence in the Master's judgment where he said: "In the absence of corroboration, I am unable to accept his [the appellant's] evidence as to his pre-accident and post-accident condition." Earlier in his judgment the Master said that on behalf of the plaintiff, oral evidence had been given by his sons and Messrs Ritchie, Ercey, Hawker and Louis. The appellant submitted that his evidence as to his pre- and post-accident condition was corroborated by some at least of these witnesses. The appellant argued that the Master had failed properly to consider and analyse the evidence called on his behalf. I do not think, particularly in light of the Master's express reference to these witnesses, that it is open to this Court to infer that the Master overlooked this evidence. In the course of his judgment in Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J, at 178, said that: "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". The critical difficulty faced by the appellant in the present case was to prove that his post-accident disabilities related to injuries suffered in the accident. This he attempted to do by saying that before the accident he was in good health and suffered no such disabilities. The evidence given by the lay witnesses was imprecise and did not contribute to resolving the question of which disabilities resulted from the accident and which were attributable to other causes. It was of little or no assistance in determining whether the appellant's post-accident complaints about his back, neck, left shoulder and knees and about headaches related to the pre-existing disabilities he clearly had or to his accident injuries. The most that could be said is that apparently prior to the accident the appellant had not complained to these witnesses and that they were unaware of the various matters which Dr House's evidence revealed. The witnesses confirm at unspecified times some of the complaints which the appellant undoubtedly made to his own doctors. This is of no assistance in dealing with the persistence of the various complaints which the Master resolved by a careful analysis of the appellant's medical evidence. 20 UNREPORTED JUDGMENTS I reiterate that the Master was faced with a very difficult task largely as a result of the false basis upon which the appellant originally sought to make good his case. For the reasons given by Kirby P and Cole JA I agree that the appeal must otherwise fail. In my opinion no ground is shown for interfering with the Master's conclusion. CONCLUSION The appeal should be dismissed with costs. Cole JA On 16 April 1991 Master Malpass delivered extensive reasons for holding that the respondent defendant to this appeal was liable to the appellant plaintiff for damages suffered as a result of a motor vehicle accident. The Master entered a verdict and judgment for the appellant in the sum of $45,675. That sum was made up as follows: General Damages $30,000 Past Economic Loss $10,000 Out of Pocket Expenses $1,000 Interest $4,675 The learned Master rejected the appellant as a witness of truth and gave extensive reasons for that finding. Shortly stated, the Master found that as a result of the accident on 28 August 1985, the appellant suffered "relatively minor soft tissue injuries... There was probably some aggravation, of a temporary nature, to his pre-existing neck and back conditions"!. The Master rejected the appellant's contention that before the accident the appellant was a fit and healthy person engaging in the work of a carpenter but that after the accident, and resulting from it, he suffered a variety of disabilities rendering him unable to engage in work as a carpenter. The Master found that the plaintiff had, in giving medical histories to various doctors consulted after the accident. "Concealed pre-accident problems, including problems affecting his right shoulder, lower back, left wrist, right knee, tennis elbow and problems concerning headaches and indigestion."2 It was accepted by Senior Counsel for the appellant that, in truth, the appellant had those pre-accident problems. It necessarily follows that the complaints which the appellant made of injuries and disabilities in those areas post accident were not necessarily caused by the accident. The Master found: "At the time of the accident, he had accumulated a considerable medical history and had a number of physical problems. Subsequent to the accident, he complained of other problems, which were established to be unrelated to the accident. He was a man who saw doctors more often than others. In the absence of corroboration, I am unable to accept his evidence as to his pre-accident and post-accident condition."3 The Master relied significantly upon his observation of the plaintiff during the trial. He found: "T closely observed the demeanour of the plaintiff. during the giving of his evidence. I formed the impression that he tended to reply to questions with vague responses which sought to avoid an answer to the question. His manner was evasive. I am of the view that his evidence must be treated with the greatest of 1. Appeal book, at 441 2. Appeal book, at 441 3. Appeal book, at 441 UBRRUTON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Cole J&)I caution and in many respects cannot be accepted. He did not strike me as a credible or reliable witness. He professed to express difficulty in recalling any matter which tended to adversely affect the case he was propounding in these proceedings."'4 In the opinion the decision of Abalos v Australian Postal CommissionS and Devries and Anor v Australian National Railways Commission and Anoré preclude this Court from disturbing the Master's judgment even where it disposed to do so. For my part I do not have any such disposition. In my opinion the judgment of the learned Master was fully justified by the evidence before him. Only one matter of substance was raised in the appeal. It was argued by Mr Branson QC that the learned Master, having found that he could not accept the evidence of the appellant absent corroboration, disregarded the evidence of six lay witnesses which, as I understood it, was said to give corroboration to the appellant's pre and post accident condition. This was said to be a critical issue in the case and failing to analyse such evidence in detail and express the analysis in the judgment constituted a miscarriage of justice producing a mistrial in accordance with Mifsud v Campbell'. Regarding this submission, the following matters are apposite: 1. The evidence of the six witnesses was not overlooked by the Master. He referred to the fact that oral evidence was given by the plaintiffs two sons and by Messrs Richie, Ercey, Hawker and Lewis'. 2. The evidence of each of those six witnesses was non-specific, vague as to activity and time, and imprecise. Read individually, or as a whole, the evidence was insufficient to establish the pre-accident and post accident capacity to work with any clarity at all. 3. The evidence was, in a sense, irrelevant, because the Master accepted that, after the accident, the appellant did not engage in significant amounts of work as a carpenter. He engaged more in the work of a builder through his building company, engaging subcontractors to do various aspects of building work, including carpentry work. According to the plaintiffs evidence in chief, that was in substance the manner in which the appellant conducted his business affairs before the accident?. 4. The Master saw and referred in his judgment to a video which showed the appellant in 1990 working on a job site and "carrying our his work activities in a normal and unrestricted fashion. His activities included kneeling and bending".!0 5. The Master found that, apart from some slight aggravation for a limited period of time, any disabilities suffered by the plaintiff due to his back!!, headaches!2, gastritis!3 or knees!4 were not caused by the accident but were Appeal book, at 425 (1988) 171 CLR 167 (1993) 177 CLR 472 (1990) 21 NSWLR 725 at 728 per Samuels JA. Appeal book, at 423 Appeal book, at 16 Appeal book, at 433 11. Appeal book, at 442 K-N 12. Appeal book, at 443 M-Q 13. Appeal book, at 443 R-V 14. Appeal book, at 445 E-G Sewer AMS 22 UNREPORTED JUDGMENTS pre-accident related. The Master found that any neck problem had resolved by early 198715, and bruising!® and left shoulder!7 discomfort had subsided quite quickly. None of the witnesses said to have to been disregarded by the Master addressed any of these matters in any detail. In Abalos!8, McHugh J said: "Consequently, where a trial judge has a 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 the 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." In my view this Court could not be so satisfied. In Mifsud!9, Samuels JA said: "Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case." In my view the reasons given by Master Malpass are an adequate, indeed an expansive, statement of his reasons for decision. I am not satisfied he overlooked any material evidence. In my view the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: TCC Branson QC/ RH Grace Instructed by: GH Healey and Co Counsel for the Respondent: RC Tonner Instructed by: Solicitor for New South Wales Insurance, Ministerial Corporation 15. Appeal book, at 442 G 16. Appeal book, at 444 E 17. Appeal book, at 445 I 18. (1988) 171 CLR 178 19. (1990) 21 NSWLR at 728