GLEESON v 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 109 Collision by motor vehicle with house — I injury to occupant (plaintiff) of house — credibility — trial judge's rejection of plaintiff's evidence Clarke JA The appellant, who was born in September 1966, sustained an injury, or injuries, on 19 June 1985 when a motor vehicle left the road and collided with portion of a house in which she was at the time. There was no collision between the motor vehicle and her but she turned quickly in a moment of apprehension and undoubtedly hurt her left ankle. She sued in respect of the negligence of the car driver. Liability was admitted and the assessment of the damages was carried out by Judge Craigie, who gave a judgment on 3 August 1992 in which he directed the entry of judgment in favour of the appellant in the sum of $5,150.50. That amount was made up of two separate components. First, the sum of $2,500 for general damages. Secondly, an agreed amount of out of pocket expenses of $2,650. The two substantial issues at the trial were whether in the incident the appellant suffered an injury to her left ankle which was greater than a minor sprain and, secondly, whether she suffered any injury at all to her left knee in the accident of 19 June 1985. I should add, however, that the second question became more complex because there was a suggestion that an abnormality of gait resulting from disability in the left ankle may have been a cause of problems in the left knee and was the cause of problems in her back which emerged much later. I did not understand the appellant's counsel, Mr Foord of Queen's Counsel, to be saying that if the only injury in the accident was to the left ankle and that the injury was simply a minor sprain of limited duration the amount was not a reasonable assessment. His attack on the judgment was a far more substantial one. The appellant had mounted a claim that she had suffered very significant disability in her left ankle since the time of the accident. She had also suffered very significant disability in her left knee from a time reasonably shortly after the accident and continuing at least until shortly prior to the trial, and had sustained problems with her back in the later years leading up to the trial. She contended that, as a consequence of these injuries and disabilities, she had suffered economic loss and had, on the probabilities, an impaired earning capacity. His Honour rejected that case and Mr Foord challenges the basis upon which his Honour did so. His submission was that the appellant had given consistent evidence, that she had explained any lateness of complaint about the knee disability and that her evidence was supported by a number of distinguished medical specialists and, in the end, by an arthroscopy. It was contended in those circumstances his Honour had been wrong to reject her evidence, if that is indeed 2 UNREPORTED JUDGMENTS what he did, on the basis that one doctor or possibly two doctors, had not only dismissed her complaints but suggested that they were simulated. The submission calls into question, first, whether his Honour rejected the appellant's assertions, and, second, the basis upon which his Honour did so. In his judgment his Honour made the point that there was a lengthy delay before the appellant made any complaint of pain in her left knee which was related to the accident, and posed the two questions which I mentioned at the outset. He expressed the opinion that, in the light of the evidence, particularly that of Dr Potter and Dr Wright who were the two doctors Mr Foord criticised, the plaintiff may have some perception of disability it was not based on anything organic or physical. His Honour then said he had come to the conclusion that the appellant suffered a fairly minor soft tissue injury in the region of her left ankle on 19 June 1985 and that the symptoms and after effects, if they had not ceased by the time that she took up employment in a dress shop in 1985 after the accident, had certainly ceased by 7 May 1987 when she commenced employment with the Cricketers' Arms Hotel. I do not think it can be doubted that his Honour rejected the appellant's evidence. His conclusion is consistent with him having taken that course. The statements in the judgment to which I have referred seem to me to be the expressions of conclusions based on a clearly implied rejection of her evidence. Although Mr Foord made the point his Honour had not said that in terms that he rejected her evidence, in circumstances where it is as clear as it is in this case that he did so, I do not think it was necessary for him to point out the obvious. The more difficult question, however, is whether his Honour did so solely because of his acceptance of Dr Potter's evidence, or whether he did so for a number of other reasons. The importance of the distinction lies in the attack which Mr Foord made upon Dr Potter's evidence. He pointed out that, according to Dr Sage when he examined the appellant in March 1992 there was grating behind her left patella, but that when Dr Potter examined her in April of the same year there was no grating. That may, Mr Foord concedes, be a matter of no moment but it had to be considered in the light of the fact that the doctor described the prospect of a left knee arthroscopy as a mischief when, in point of fact, the arthroscopy which was subsequently carried out by Dr Page showed some minor abnormalities in the left knee. How could (Mr Foord posed the question) a doctor be accepted when he had made such an erroneous mix-statement. It may be that it would be open to this court to re-examine the medical opinions in the light of the fact that no doctor gave oral evidence but such a re-examination would need to take, as its starting point, a determination as to whether the histories upon which the doctors based their opinions were reliable. That is particularly so in this case for, after a reasonably short period of time following the accident there was, apart from the arthroscopy findings in May 1992, no objective sign of disability in either the knee or the ankle. There were complaints of tenderness and pain but I would understand those to be subjective complaints. There was the grating to which I have referred which might be understood to be an objective sign. However a number of other doctors did not manage to find that grating and there is a question in my mind whether the finding was not a reflection of the doctor's own subjective opinion. \GRLEESON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB In a substantial sense the case depended upon whether his Honour accepted the appellant and the histories that she gave the doctors. If his Honour simply rejected her evidence because of Dr Potter's opinion, for example, there may be a circularity in the reasoning which might raise a real question mark but, upon a reading of the judgment as a whole, I think that when his Honour referred to the whole of the evidence he was paying regard to much more than Dr Potter's opinion and, in particular, to the history of the complaints, a matter to which I now turn. The accident happened in June 1985. The appellant saw Dr R Bourke shortly after the accident, but there was no report from that doctor in respect of that consultation which was before the court. She was referred by the doctor to Newcastle Hospital and complained of the ankle injury. There was no complaint of pain in the knee. In 1987 she saw Dr Bourke again complaining of aching pain in the left ankle. On that occasion the doctor examined her knee and found some complaints of tenderness and pain but the report does not contain any reference to her complaining about pain in the knee resulting from the accident. Again in August 1987 she attended Newcastle Hospital complaining of aching over the left ankle and both knees, and gave a past history of the accident in which she sustained an ankle injury. At the end of the examination an ankle support bandage was applied. Prior to her attendances at Newcastle Hospital and Dr Bourke in 1987, she had commenced these proceedings. That occurred on 7 October 1986 and in the statement of claim her injuries were set out as follows: (a) ligamentous injury to the left ankle; (b) shock. She then saw Dr Hicks, in April 1988, when she said that she had injured her left ankle when a runaway car had burst into her house, and the doctor formed the opinion that she had sustained that injury. The first occasion on which one finds her complaining of a connection between the accident and pain in her left knee was 27 January 1989. She explained the delay in making complaints about her knee and about her failure to link those complaints to the accident at an earlier time by the fact that her ankle was the real cause of the problem in the early days and she only really noticed the knee some months later. That certainly is a reasonable explanation at least for a period of a few months, but it is clearly enough an explanation which his Honour did not accept. That is understandable because the period with which the court was dealing was a number of years and, in her claim, which she brought before the court in 1986, which was itself nearly 18 months after the accident, there had been no complaint of the knee problems. When she complained of knee problems to Dr Neil she attributed those to abnormal gait. This was not, however, a consistent attribution. At other times she thought, or said she thought, that there had been some effect on her knee at the time of the accident itself. She certainly attributed her later back condition to an abnormal gait and in this she was supported to an extent by some doctors. This, she said, developed as a result of her ankle injury almost immediately after the accident. She said that she had limped since that time and that, while she sometimes did not limp, most of the time she did. An examination of the medical reports does not, however, reveal a consistent pattern. In some, I think most, there is reference to a normal gait. In others an abnormal gait. This presented, or must have presented, to his Honour as a significant problem in someone who was asserting disabilities to the back. 4 UNREPORTED JUDGMENTS The combination of the history concerning complaints, the fact that she worked as a barmaid in the Cricketers' Arms Hotel for nearly three years and followed that work with full time employment at the Regent Hotel in Sydney for about 12 months, the fact that there were inconsistencies to a quite marked degree in the history she gave, and the lack of a reasonably early complaint of knee injury consistent with the complaint she made at the trial, presented as raising very serious questions about the reliability of her account. Once the court finds that there were substantial grounds upon which his Honour could have rejected her evidence and that his Honour had done so it becomes very difficult for this court to interfere. If, for instance, the trial Judge, who had an obvious advantage over this court, had rejected her evidence upon reasonable grounds it would seem to me in accordance with well established principle this court could not interfere. It could only do so if the grounds upon which his Honour had acted were not sustainable upon examination or if his Honour had relied on evidence which was inconsistent with objectively established fact or, perhaps, the great body of evidence. That is not this case and it seems to me this court cannot interfere with his Honour's findings on credibility. That being so the finding that the appellant sustained a minor sprain to her left ankle, being a finding based in large part upon his Honour's assessment of the appellant, is not open to attack in this court. For these reasons I would dismiss the appeal with costs. Handley JA I agree. Sheller JA I also agree. Clarke JA: The order of the court will be as I have said. Appeal dismissed with costs. Solicitors for the Appellant: Greg Tyler & Associates Counsel for the Appellant: J M Foord QC & T Edwards Solicitors for the Respondent: Solicitor for the Government Insurance Office Counsel for the Respondent: G R Petty