BECKER vy THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 4 March 1994, 4 March 1994 [1994] NSWCA 21 MOTOR VEHICLE ACCIDENT — ECONOMIC LOSS — CREDIBILITY — DECEITFUL CONDUCT — UNRELIABLE WITNESS Clarke JA The appellant brought a claim for damages in respect of injuries he received in a motor vehicle accident on 20 November 1984. Following the accident he was taken to St Vincent's Hospital and treated for a laceration to his head with an x-ray\ examination being made of his right knee and right shoulder. His right patella was found to be fractured. The appellant said he had a tender right shoulder and tenderness in the neck region. In his claim, which was heard by Chief Judge Staunton in June 1992, he asserted that incident had led to severe neck and back problems which had in a real sense destroyed his life. The claim that he made was a very large one indeed, encompassing claims for economic loss in respect of work in the building industry and his inability to follow the sport of ice hockey as a professional. His Honour awarded the sum of $16,249 which included $10,000 general damages and a small amount of economic loss. There is a typographical error in the judgment insofar as the general damages are recorded as $1,000, but there can be no doubt in view of the total award that that was nothing but a typographical error. That, however, seems to me to be the only error that can be found in what is a very careful analytical judgment of a potentially large claim by a person who was exposed during the hearing as a person who was something less than honest. It may be sufficient for me simply to say that having heard the arguments on the appeal I am not satisfied that there are any errors in the judgment, but in deference to the courageous argument of Mr Andrews, I think I ought to refer to his major point. His Honour said in his judgment that he was satisfied that the appellant suffered muscular ligamentous injuries in the accident in 1984. He found that these were probably neck, lower back and right shoulder injuries and, in addition, he sustained a blow to the head and an undisplaced fracture of the right patella. Thereafter his Honour found he was probably unfit for ice hockey and labouring work until April 1985. His Honour then continued: "He then commenced work of a kind inconsistent with the existence of any on- going disability of any real consequence, and I find that by 4 November 1985 he had regained his capacity to do full work of a labouring kind in the construction industry". Mr Andrews submitted that that was clearly wrong in the light of the opinion of Dr Kelly, a general practitioner, who saw the appellant on 13 June 1985 and noted that he presented complaining of persistent neck and low back pain after an apparent motor vehicle accident in November 1984 and that there was tenderness of his neck and tenderness plus para lumbar spasm in the region of L4/S on examination. 2 UNREPORTED JUDGMENTS Superficially there might seem to be substance in the argument, but when one notes that the doctor had previously seen the appellant ten days earlier for an infected hockey injury and pays regard to the additional comment of the doctor which read "The fact that they (the neck and back injuries) had not settled by 13 June 1985 could well have been also due to the very vigorous sport that he plays (ice hockey)", one begins to question it. Further, the strength of the submission starts to pale when one also has regard to the fact that when he went to Canberra in about April and May 1985, he commenced building work on construction sites, which work he continued until he injured his back in an accident on 4 November 1985. In these circumstances one can understand the reasoning which underlay his Honour's conclusion and which took account of the fact that his Honour rejected the appellant as a witness of truth. In my opinion not only has it not been shown that the finding is wrong, but examination suggests that it is plainly correct. I should mention also two aspects of the case which related to credibility. The appellant saw a great number of treating doctors from 1984 to the time of the trial and at no stage did he mention to any of those doctors the fact that he had a back injury at work of a significant type on 4 November 1985. To each doctor he recounted a history relating all his problems to the motor vehicle accident in November 1984. This was, it seems to me, deceitful conduct, and the measure of the deception is best understood when it is pointed out that three weeks after he went off work in November 1985, he consulted Dr Newcombe and gave the type of history to which I have just referred. There was no mention of the fact that a few weeks earlier he had hurt his back at work, nor did the appellant mention the fact that he was then (ie the time he saw Dr Newcombe) off work as a result of the incident in November 1985. He simply spoke of continuing incapacity flowing from the 1984 injury. The other matter that should be mentioned is that in his evidence in chief the appellant plaintiff painted a very bleak picture and suggested that in substance he had played little or no ice hockey since the 1984 accident. Dr Kelly's notes and the revelation in cross-examination that in 1988 he represented Australia in ice hockey and played at least six games for this country, effectively destroyed that picture. I mention but two of the features of the evidence which led his Honour to treat the appellant as a thoroughly unreliable witness. Those two features suggest that his Honour was clearly right in his assessment and that the ultimate findings which he made were thus properly based. Mr Andrews also submitted that, even accepting his Honour's findings of fact, an award of $10,000 was inadequate. It must be appreciated that once an injured person's credibility is all but totally destroyed, it becomes very difficult for a judge to assess the degree of pain and suffering and disability which that person suffered. In all the circumstances of this case I am far from satisfied that the sum awarded was not proper and adequate compensation. In my opinion the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. I make an application for indemnity costs. Clarker JA The court will reserve the nature of the costs order. UEC KER v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JA) (Following discussion) The costs order as previously made was that the appellant pay the respondent's costs of the appeal. The court reserved the question of the nature of that costs order. In view of the fact that an offer of compromise was made well within time it seems that the exercise of discretion should be made in favour of allowing those costs on an indemnity basis as from 28 October 1993. Appeal dismissed with costs. Counsel for the Appellant: D ANDREWS Instructed by: BESTON AND CO Counsel for the Respondent: HG SHORE Instructed by: SOLICITOR FOR THE GIO OF NSW