ATIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES KIRBY P, SHELLER AND POWELL JJA 28 November 1994, 9 December 1994 [1994] NSWCA 8 APPEAL — credibility findings unidentified motor vehicle — judge rejects claims — disbelieves plaintiffs — held: Immune from appellate disturbance — no objective evidence casting doubt on correctness. Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, applied. PRACTICE and PROCEDURE - District Court - single motor vehicle accident - concurrent hearing of 2 claims - implied consent of parties to that course - held: No irregularity - belated challenge rejected. EVIDENCE - medical notes - business record - properly admitted. APPEAL - credibility evidence - motor vehicle accident - unidentified motor vehicle - plaintiffs allege unidentified motor vehicle backed into their vehicle and then departed - later report to police station - primary judge (Twigg DCJ) rejects claims - finds that plaintiffs have failed to discharge onus of proving claims - rejects truthfulness of plaintiffs on the basis of observations of demeanour - on appeal to the Court of Appeal - held (1) The judge's conclusion, resting upon his impression of the witnesses, was in the circumstances immune from appellate disturbance Abalos v Australian Postal Commission (1988) 171 CLR 167, applied; (2) The judge gave adequate reasons for his decision. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), applied; Mifsud v Campbell (1990) 21 NSWLR 725 (CA), distinguished; (3) The objective evidence, far from casting doubt on the judge's decision, reinforced and explained it; (4) Appeals dismissed with costs. PRACTICE AND PROCEDURE- District Court - motor vehicle claims - single incident - driver and passenger sue statutory corporation liable for injury caused by unidentified motor vehicle - passenger abandons claim against driver - common legal representation - evidence heard together - judge provides single reasons for dismissing claims of driver and passenger - held: No irregularity having regard to the way in which the proceedings were conducted by consent of the parties. EVIDENCE - documentary evidence - business records - medical notes - contemporaneous records of earlier motor vehicle accidents - earlier accidents denied by plaintiff - tender of notes - notes admitted - whether wrongly admitted - held: The notes were part of a continuous business record and were admissible under the Evidence Act 1898, s14CD and constituted evidence, contrary to the plaintiffs evidence at the trial, of the fact contained in than, viz that the plaintiff had given a history of earlier accidents to her medical adviser. Urban Transit Authority v Nweiser (1992) 28 NSWLR 471 (CA), explained; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (CA), considered. Motor Vehicles (Third Party Insurance) Act 1942. ORDERS Appeals dismissed with costs. Kirby P Before the Court are two appeals from judgments entered by Twigg DCJ in favour of the defendant in motor vehicle personal injury claims. 2 UNREPORTED JUDGMENTS The incident out of which the claims arose, allegedly occurred as long ago as 17 April 1986 The hearing took place in October 1990 and resulted in a reserved judgment in November 1990. Appeals were promptly lodged but not prosecuted with vigour From their dormant state they were revived by a new initiative of the Court to clear dormant appeals. It was this initiative which brought the parties before the Court and resulted in this Court's examination of the reasons of Twigg DCJ for rejecting the claims of the appellants. THE PRIMARY JUDGE REJECTS TWO DAMAGES CLAIMS Each of the claims arose out of a motor vehicle accident said to have occurred on 17 April 1986 at about 10.45 a.m. in Seaview Street, Dulwich Hill at the intersection of that street with Marrickville Road. Mrs Jeanette Atieh (the first plaintiff and first appellant) sued the Government Insurance Office of New South Wales as the body then liable in law under the Motor Vehicles (Third Party Insurance) Act 1942 for the negligence of the driver of another vehicle whose identity could not be discovered. According to Mrs Atieh, she was driving her sedan vehicle, accompanied by her mother, Mrs Alice Antaky (the second plaintiff and second appellant) and Mrs Atieh's two daughters, Mary (aged six) and Bernadette (aged approximate 3 1/2 years). According to the evidence of Mrs Atieh, she was on her way to the mother's home after shopping. She stopped behind a dark green vehicle at the intersection aforesaid. She says that, when stopped, she was two metres away from that vehicle. She claims that "according to what [she] thought", she was standing between five and ten minutes "no more" behind the car, waiting to make a turn. However, suddenly the vehicle reversed and hit her vehicle. "T was stationary in Seaview Street. I wanted to turn left, there was a car in front of me green - dark green colour, then he reversed and hit me, he kept on - when he hit - he reversed to me and hit me. He kept on going. He ran away, he went to the lights. My car, the bonnet was lifted up. All I know I looked through the window and I saw him go to the right." Mrs Antaky was a passenger in the front seat of Mrs Atieh's vehicle, restrained by a seatbelt, which allegedly came loose in the impact. Mrs Atieh did not notice the registration number of the green car before it drove off. She did not think it was a station wagon, but a small car. When asked about the driver, she said: "I'm quite sure it was a woman." Because her children were screaming and her mother was distressed, Mrs Atieh was concerned about them. She claimed that a woman who had a fruit shop close by, saw her shaking and "looking very, very yellow". This woman came over. She gave Mrs Atieh a glass of water to drink. Mrs Atieh's husband was summoned. He put down the bonnet of the car and she then drove the vehicle to her mother's home. After about an hour, a neighbour of her mother, Mr Shah El Ali came and saw the damaged motor vehicle. He told Mrs Atieh to come with him to the police station. He and his wife then accompanied her to the Marrickville Police Station where they talked to a policeman. The police record referred, as I shall show, to a Mrs Mona El Ali. According to the record, she was a passenger in Mrs Atieh's car and was injured in the reported accident. A Constable Hickey, who received the report to the Marrickville Police, gave evidence before Twigg DCJ concerning the manner in which a P4 Report on a motor vehicle accident is filled out by police. He recalled the report given by Mrs Atieh and that she could not speak English very well. He remembered that a male person (presumably Mr El Ali) "recited her versions of the accident to him". He told Twigg DCJ of the URIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby P) significance of the line put through the name of the person injured. The P4 Report appeared to show that Mrs El Ali was in Mrs Atieh's car and had been injured in the collision. This was contrary to the evidence of the plaintiffs at the trial. During Constable Hickey's evidence, Mr El Ali was brought into Court. It was also made plain that Mrs El Ali was at court. Neither of these persons was called during the primary cases for the plaintiffs. Nor were they tendered in reply. Mrs Alice Antaky was the other plaintiff Originally, she sued both the Government Insurance Office of New South Wales and her daughter as co-defendants. The statement of claim against the Government Insurance Office asserted: "After the collision, which occurred whilst both cars were upon Seaview Street, Dulwich Hill as aforesaid, the driver of the other vehicle, apparently male [sic] fled and thereby denied the opportunity to the plaintiff... to enquire into his identity or the registration particulars of his motor vehicle." The claim by Mrs Antaky against Mrs Atieh alleged that she had driven at a speed excessive to the circumstances; failed to keep a proper lookout and other usual grounds of negligence. When the two cases were listed for trial, the claim by Mrs Antaky against her daughter was abandoned. By consent of the parties, the one counsel appearing for the plaintiffs, the actions proceeded concurrently. No protest was taken by any party to the hearing of the two claims together. Having regard to the abandonment of the allegation by the mother against the daughter, and the common representation of the plaintiffs and the single remaining defendant, the course adopted was unremarkable and perfectly normal. THE PRIMARY JUDGE REJECTS THE CLAIMS Twigg DCJ recounted the foregoing version given to him by Mrs Atieh and Mrs Antaky. He recounted certain investigation initiated in May 1986 on behalf of the plaintiffs to endeavour to ascertain the identity of the green motor car blamed for the collision. The identity of the driver could not be discovered. These investigations satisfied Twigg DCJ that, if it became relevant, due search and enquiry had been made as best the plaintiffs could do in the circumstances. Twigg DCJ also recounted the cross-examination of Mrs Atieh in relation to statements which she had allegedly made to her local doctor, Dr S Tadros. His notes disclose that on 14 February 1986, ie eight weeks before the alleged incident in Seaview Street, Marrickville, Mrs Atieh had reported to Dr Tadros: "Yesterday MVA driver + seatbelt but another vehicle stationary... neck + low back LS side nil." This entry in Dr Tadros's records is somewhat cryptic. But it does appear to indicate that on 13 February 1986 Mrs Atieh reported to Dr Tadros a motor vehicle accident (MVA) bearing some similarities to that upon which she sued Cross-examined about this incident, Mrs Atieh vigorously denied that she had told Dr Tadros that she had had a motor vehicle accident in February: "Q. On 14 February 1986 I suggest you went to Dr Tadros and reported to him on that day that you had been the driver of a motor vehicle that was involved in a motor vehicle accident. A. I said - I mentioned April, the fourth month. Q. And you told him that you were wearing a seatbelt? A. Yes I did. Q. And that your car struck a stationary car? A. No. Q. You hit another vehicle back stationary? A. No. 4 UNREPORTED JUDGMENTS Q. And that you hurt your neck? A. Knee or neck? Q. Neck. A. I mentioned the time - the accident I had in April. Q. And that the injury to your neck was on the left side of your neck? A. My arm, my shoulder and my neck. His Honour: So that it's clear Mrs Atieh, you're being asked now about what you told Dr Tadros on 14 February 1986? A. No never. I didn't go. Counsel: Q. And did you go to the doctor again on 20 February 1986? His Honour: You mean Dr Tadros again...? Counsel: I beg your Honour's pardon, yes. Q. To Dr Tadros on 20 February and report to him that you were involved in an accident on 27 December 1985? A. No. Q. Dr Tadros was your general practitioner at the time? A. Yes. Q. You have been seeing Dr Tadros haven't you since November 1981? A. Yes. Q. You were having trouble with your neck in January 1985 weren't you? A. No never. Q. Might I suggest that on 14 January 1985 you visited Dr Tadros and reported that you had a neck ache? A. Sorry no. Q. And you were also suffering from a headache? A. In February? Q. January 1985. A. No. Before the accident there was nothing wrong." All of the foregoing appears to be in direct contradiction to the records of Dr Tadros which were tendered in the case for the Government Insurance Office. The entry for 20 February 1986 is also cryptic, but it appears to be: "MVA 27/12/85 PM tests - ive." Dr Tadros was not called to give oral evidence. Mrs Antaky gave evidence that she was sitting as the front seat passenger in the vehicle driven by her daughter. When the collision occurred, she fell forward to a kneeling position on the floor. She denied that her knees had struck the dashboard of the vehicle. However, this history also appeared to be contradicted by the histories recorded by Drs Tadros and J Vote. Each of them recorded that Mrs Antaky had hit her knees on the dashboard and made no mention of her having fallen to the floor. THE PRIMARY JUDGE'S REASONS Twigg DCJ recorded these various discrepancies in the histories of the two plaintiffs He concluded: "On the issue of liability I am not satisfied that the plaintiffs have discharged the onus on the balance of probabilities that the accident was caused by the negligence of the other driver of a dark green car as they have outlined. On the evidence of the distance the plaintiff vehicle was behind the other vehicle, the injuries allegedly caused by an impact that cause only minor damage to the plaintiff vehicle as shown in the photographs exhibit B1 and B2, the discrepancy concerning whether Mrs Mona El Ali was present in the car and the evidence before me of the plaintiffs, I am not satisfied that the accident was caused by the URIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION, (Kirby P) negligent driving of the driver of the other vehicle. I have observed the demeanour of the two plaintiffs Mrs Atieh and Mrs Antaky in the witness box, both in evidence-in-chief and in cross-examination and have watched carefully as they have given the evidence particularly in relation to the manner in which the accident occurred. I do not accept their evidence. Mrs Atieh did not convince me on the balance of probabilities that the accident on 17 April 1986 was caused by another vehicle reversing into her car. Mrs Antaky was vague on many matters and on important issues gave no useful evidence to me. She said in evidence that she was talking to the children in the car and it is clear to me that she was not able to observe how the accident occurred. Accordingly there will be a verdict for the defendant in each of the two cases." In each case Twigg DCJ went on to assess damages against the possibility that this Court, on appeal, might come to a conclusion different than he did. In the case of Mrs Atieh, he found damages in a total sum of $7,300.00. In the case of Mrs Antaky, he found damages in the sum of $5,430.00. But in view of his primary conclusion, he entered judgment, in each case, in favour of the Government Insurance Office of New South Wales. For that corporation there has now been substituted the present respondent, New South Wales Insurance Ministerial Corporation. GROUNDS OF APPEAL When the appeal was called, Supplementary Notices of Appeal were filed for each appellant without objection. In the case of Mrs Atieh, these complained that his Honour had erred in not delivering separate reasons for judgment in the two proceedings; in not giving sufficient reasons for rejecting the claim; in not analysing the extent to which the evidence of the two plaintiffs conflicted or coincided; in not considering the extent to which the evidence of the one confirmed the evidence of the other; in considering the original claim brought by Mrs Antaky against her daughter but subsequently withdrawn; in failing to analyse the damage in the tendered photographs and the recounted version of the accident; in having regard to the alleged discrepancy concerning Mrs El Ali; in admitting into evidence the clinical notes of Dr Tadros and in awarding a manifestly inadequate sum for damages. Most of the same grounds of appeal were also included in the Supplementary Notice of Appeal filed on behalf of Mrs Antaky. REJECTION OF THE CREDIBILITY OF PLAINTIFFS It is not at all unusual, in claims arising out of a collision allegedly caused by an unidentified motor vehicle, for searching scrutiny to be conducted of the plaintiff's evidence. If a motor vehicle and its driver are identified, the happening of an accident may be verified and its detail submitted to scrutiny. This is not as readily done where the allegedly negligent driver is not identified. Hence the statutory requirement for due search and enquiry and the forensic requirement for proof that the accident happened as stated. That proof may be achieved by the testimony of the plaintiff. If the plaintiff is believed, the claim will be made out. Sometimes, objective facts (such as damage to the vehicle; report to police; conversations with bystanders etc) will tend to confirm the plaintiff's version of events. In the present case, the objective facts cast doubt upon the testimony of the plaintiffs. But the fundamental reason why Twigg DCJ rejected their claims, was that he did not accept that they had proved that any injuries which they 6 UNREPORTED JUDGMENTS suffered were caused in the accident pleaded and particularised. Unfortunately for the appellants, his Honour came to that conclusion because he did not believe their testimony. Where a primary judge reaches such a conclusion, after observance of the plaintiff giving evidence, it is extremely difficult to disturb such conclusion in this Court. This is because the law attaches great significance to the entitlement of the primary tribunal of fact (judge or jury) to believe or reject evidence by reference to considerations such as the "demeanour" of witnesses. Science may cast doubt upon this suggested capacity of observers. But the law holds steadfast to this approach. The authority of the High Court of Australia binds this Court, which does not see witnesses, to defer to the impression which witnesses make upon, relevantly, the trial judge. See eg Owners of SS Honestroom v The Owners of SS Sagaporack [1927] AC 37 (HL), 47; Paterson and Anor v Paterson (1953) 89 CLR 212, 222; Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (1985) 59 ALJR 842 (HC), 844; Abalos v Australian Postal Commission (1990) 171 CLR 167, 178 and Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, 479. To the ordinary impressions of a witness, derived from demeanour, must be added the "subtle influence" which demeanour may have upon the judge's determination of the case. See eg Abalos, above, 179. In support of the appellants' case, counsel relied upon the judgment of the concurring minority (Deane and Dawson JJ) in Devries, above, 480. Assuming there to be a significant difference in the views of the majority and of the minority on the duty of appellate courts in a case such as this, it is the plain obligation of this Court to conform to the holding derived from the majority opinion. That opinion does not stand alone. It is one in a series of cases in recent times (some set out above) in which the High Court has insisted upon the primacy of the decision of trial judges where such decision rests upon the impression derived by that judge from the demeanour of witnesses We must conform. Where, as in the present case, the primary judge has rested the decision under challenge principally upon a disbelief of the plaintiff's version of an incident necessary to recovery, this Court is forbidden to disturb the decision unless it is shown that the primary judge has failed to use, or palpably misused, the advantage which he or she enjoyed of seeing and hearing the witnesses. Cf Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA), 299. Effectively, the only circumstances where this will be shown, is where the judge has reached a conclusion, or found facts, which are contradicted by objectively provable and incontestable facts or where otherwise the decision reached is "glaringly improbable". Cf Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 (CA), 210, Galea v Galea (1990) 19 NSWLR 263 (CA), 266. This high standard, which is defensive of the finality of litigation, is not often reached by those who challenge credibility based findings and conclusions. But, occasionally, it is. See eg Chambers v Jobling (1986) 7 NSWLR 1 (CA). There is nothing in the evidence for either of the plaintiffs (appellants) in the present case that comes remotely near displacing the strongly expressed conclusion of Twigg DCJ, founded upon his adverse impression of the truthfulness of the appellants. Objectively speaking, this may or may not work an injustice upon the appellants. This Court cannot know. All it can do is to apply the principles of law binding on appellate courts in this country. Those principles forbid disturbance of the conclusion which Twigg DCJ expressed. URIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirby P) Far from the objective evidence casting doubt upon the conclusion expressed by his Honour, the most important objective evidence (the contemporaneous notes of Dr Tadros) contradicts the oral testimony of Mrs Atieh, suggest one and possibly two earlier accidents which she denied and therefore sustains his Honour's rejection of her claim founded on the uniqueness of the alleged accident on 17 April 1986. Mrs Antaky's claim ultimately fell with the rejection of the version of events given by her daughter. This is enough to sustain the judgment which Twigg DCJ entered for the predecessor to the present respondent. OTHER COMPLAINTS ABOUT THE JUDGMENT Out of deference to the earnest arguments for the appellants, I will deal, briefly, with the remaining complaints expressed in the Supplementary Notices of Appeal. The single judgment: So far as the complaint that his Honour ought to have separated the claims of the two appellants and given separate reasons for his decisions in each case, I cannot agree. By consent of the parties, the two cases were heard together. For the most part, the evidence in the one was clearly relevant to the other. Mrs Antaky abandoned her separate claim against her daughter. It was suggested that the bringing of such a claim was in some way inconsistent with the claim against the Government Insurance Office. I do not take that view. It is not at all unusual, where a passenger is injured in the circumstances alleged, for the passenger to sue both the driver of the vehicle in which the passenger was proceeding and the statutory representative of the unidentified vehicle. But because Mrs Antaky eventually bound her claim entirely to that of her daughter, she elected to succeed or fail on the issue of liability, as her daughter established the liability of the Government Insurance Office for the negligence of the unidentified driver. When the daughter failed to establish that claim, Mrs Antaky's claim likewise failed. She had no separate claim of her own against her daughter to fall back on. Yet even if she had retained that action there would have been serious difficulties in the way of her recovering, because it is inherent in Twigg DCJ's conclusion that he was not convinced that the plaintiffs had made out their claim that they were injured on the day and in the way alleged. It is not enough for a claimant (even a passenger) to assert an injury at some specified time arising out of a motor vehicle accident. Under our law, any claim must be brought home to a particular incident and proved accordingly. In the way in which the parties agreed to conduct the proceedings at trial, I see no legitimacy in the belated complaint concerning the provision of reasons which deal appropriately with the common and distinct factors of the two claims. It is notable that no objection to the course taken was voiced by counsel appearing at the trial. It can be imagined what his Honour's reaction to such an objection would have been. Adequacy of reasons: Then it was objected that Twigg DCJ's reasons were not adequate to express the grounds for his Honour's decision. I do not agree. It was not his Honour's obligation to analyse every part of the evidence. It was sufficient that he should expose the essential ground for the decision See Ex parte Powter; re Powter and Anor (1945) 46 SR(NSW), 1, 5; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), 273, 280. See also M D Kirby "Reasons for Judgment" (1994) 12 Aust Bar Rev 121, 126f. In the present case, the primary judge's basic ground for rejecting the claim was that the plaintiffs had failed to discharge the onus of proving to his satisfaction that an incident occurred as alleged on 17 April 1986 causing their damage That decision, in turn, depended 8 UNREPORTED JUDGMENTS upon his rejection of the truthfulness of their testimony. As such, it is insusceptible to appellate correction except in the limited circumstances mentioned above, which do not occur here. There is a qualification to the foregoing strict rules where this Court is of the opinion that the judge has ignored evidence critical to an issue in the case. See Mifsud v Campbell (1990) 21 NSWLR 725 (CA), 728; Bruton v New South Wales Insurance Ministerial Corporation, Court of Appeal (NSW), unreported, 6 December 1994. Where deficiencies in reasons for judgment indicate an unsatisfactory or incomplete reasoning process which has led to orders based on grounds which are insupportable, this Court may intervene. But in the present case, that argument has no application Far from the contemporaneous objective evidence casting doubt on the reasoning process of the primary judge, it sustains the perception of the primary judge that there were unsatisfactory features in the evidence of each of the appellants warranting the disbelief which the judge felt, in part because of their appearance and the impression which they made on him when giving evidence. Unexplained contradictions: The appellants complained about the use made by Twigg DCJ of the photograph of the vehicle which was tendered in evidence. I take his Honour to be doing no more than observing that the minor damage shown in the photograph appeared inconsistent with the dramatic incident described in evidence by Mrs Atieh. But in any case, with three potential motor vehicle accidents to choose from (being the one described in evidence and two recorded in the notes of Dr Tadros but denied by Mrs Atieh), the photographic evidence of some damage to her motor vehicle by no means proved that it had been caused in the incident of 17 April 1986 sued upon. There was a curious omission of the appellants to call Mr and Mrs El Ali who were shown to be at the court during the trial. If they were no more than interpreters at the police station (as was claimed for the appellants), they could surely have said as much in the witness box, either by leave or in the plaintiffs' case in reply Instead, they were withheld. That left unanswered the evidence of Constable Hickey which suggested that Mrs El Ali may have been a passenger in Mrs Atieh's vehicle, according to the report to police. Above all, there was no explanation of the two earlier motor vehicle accidents recorded in the clinical notes of Dr Tadros. The appellants failed to resolve the sharp conflict between Dr Tadros's notes and the testimony of the appellants, especially Mrs Atieh, who emphatically denied any previous motor vehicle accidents causing injury to ha neck. The apparent similarity between the accident sued upon on 17 April 1986 and the incident recorded in Dr Tadros's notes of 14 February 1986, unexplained, quite naturally engendered suspicion and doubt on the part of the primary judge. It appears to have reinforced the conclusion which he reached upon his impression of the witnesses. There is similar, although less significant, doubt occasioned by the conflict between the description which Mrs Antaky gave of the way in which she was injured and the contemporaneous medical records of her doctors. Admission of clinical notes: Dr Tadros's clinical notes were the subject of cross-examination. They were received into evidence (in the case for the defendant) over the plaintiffs' objection. The appellants objected upon the basis that the evidence was relevant only to contradict denials of the witnesses in cross-examination on matters going to collateral issues affecting credit. Cf Urban Transit Authority v Nweiser (1992)28 NSWLR 471 (CA), 478. As the Court pointed out in Nweiser, this rule is not an absolute one The categories of exceptions to it are not closed Having regard to the contents of the medical notes, URIEH and ANOR v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powell JA) the denials of Mrs Atieh, it would have been astonishing if the notes had not been received in evidence. In my view, they were admissible as part of a continuous business record kept by Dr Tadros. They were properly admitted not to prove the truth of previous motor vehicle accidents, as recorded, but to prove the truth (which Mrs Atieh denied) that she had told Dr Tadros of such accidents. See Evidence Act 1898, s14CE. As this Court has previously pointed out, these provisions in the Evidence Act constitute a legislative recognition of the probable accuracy of contemporaneous records of this kind and of the fact that, at least in most cases, they are likely to be more reliable than mere memory. See Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (CA), 548. No possible reason could be suggested as to why Dr Tadros would falsely record earlier "MVAs". The denials of the appellant, Mrs Atieh, left the issue totally unexplained. That fact was available to the primary judge to reinforce the view to which he had, in any case, arrived as a result of his observations of the appellants giving their evidence. DAMAGES In view of the foregoing, it is unnecessary to review the complaints about the adequacy of the damages awarded by his Honour, against the contingency that this Court would disturb the judgments which he entered. Consistent with binding principle, those judgments are immune from disturbance in this Court. The issue of damages does not, therefore, arise ORDERS The appeals against the judgments must be dismissed with costs. Sheller JA I agree with Kirby P. Powell JA I agree with Kirby P. Appeals dismissed with costs. Representation: Counsel for the appellants: CC Branson QC/KW Andrews Solicitors for the appellants: MT Bechara and Co Counsel for the respondent: HD di Suvero Solicitors for the respondent: Solicitor for NSW Insurance Ministerial Corporation