PHILLIPE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 1 March 1994, 1 March 1994 [1994] NSWCA 252 In a personal injury case the trial Judge made credibility based findings adverse to the plaintiff and his witnesses, and heavily discounted his claim. On appeal Held: The credibility based findings could not stand because they were substantially based on reasoning which was not supported by the evidence or which otherwise could not be supported. Handley JA This is an appeal by the plaintiff, Hamid Phillipe, from the assessment of his damages by Judge Conomos in the District Court at Parramatta. The plaintiff was injured in a motor vehicle accident on 2 February 1987. Liability was not seriously in issue at the trial. His Honour gave judgment in favour of the plaintiff for $40,296.03, the principal component being general damages of $25,000. The plaintiff came to this country from Lebanon in 1967 at the age of twenty. As the trial judge properly recognised he had an impressive work record prior to this accident. He was an upholsterer by trade and he commenced working on the shop floor with the Ford Motor Company at Homebush in August 1973. He progressed through various positions with increasing responsibilities until he was ultimately appointed as a supervisor, some seven years before the accident. This involved supervision of between twenty and thirty employees in the upholstery section of the factory. The circumstances of the accident were not in dispute. The plaintiff was injured as a result of a rear end collision. The force of the impact resulted in the plaintiff being struck on the head by the metal cover of the rear wheel which had been in the back of the vehicle and perhaps the rear spare wheel and perhaps also by part of the rear seat. He developed a lump on the back of his head which was described in evidence variously as being the size of an apple or the size of a golf ball. The plaintiff did not return to work. He was driven home by his brother and, because of dizziness and pain in the neck and head, he attended later at the Merrylands Medical Centre. Subsequently, because these symptoms continued, he consulted other doctors in an extensive fashion. In March 1987, at Delmar Private Hospital the plaintiff had a manipulation of his spine by Dr Smith, an orthopaedic specialist, whose report is in evidence in the case. The plaintiff returned to work in July 1987 and remained in his job until he resigned in February the following year. He said in evidence that by the time he left he could no longer cope with his work. This required him to use computers and supervise and control the work of others. He blamed his inability to do so on his lack of concentration, poor memory, and the pain that he said he was continuing to suffer as a result of his injuries. 2 UNREPORTED JUDGMENTS The real cause of the plaintiff's resignation from his job with the Ford Motor Company was a critical issue at the trial which would have a significant effect, one way or the other, on the awards for general damages and economic loss. The trial judge recognised that the credit of the plaintiff was a central issue in the case. He ultimately found that the plaintiff was entitled to compensation for shock, for the hematoma and lump on the back of his head, and the strain in his neck and back with the associated pain up to the time he returned to work in July 1987. From that time onwards his Honour said he was prepared to accept that the plaintiff from time to time experienced some pain in his neck which lessened over the ensuing twelve months. Coupled with that pain he found the plaintiff suffered from depression. However, the trial judge rejected any further complaints by the plaintiff and held that he was not entitled to compensation for any other injuries or disabilities which, in his view, were not referable to the accident. The plaintiff called a number of witnesses from the Ford Motor Company and from his family to corroborate his evidence. The judge rejected not only the plaintiff but each and everyone of these lay witnesses. He rejected a submission that the plaintiff, with his excellent work record, had nothing to gain from manufacturing his symptoms or disabilities if he was in truth able to hold down his pre injury job. He said: "\.. it is well known in these courts and in the community that if a person such as the plaintiff establishes continuing disabilities and if a court accepts that those disabilities are disabling to the point of not being able to work, then persons such as the plaintiff stand to gain damages in the region of hundreds of thousands of dollars. That, I consider, is an adequate answer to Mr Hall's submission to me as to the plaintiffs emotional satisfaction from his pre injury work and the fact that he would have received a substantial wage and concomitant superannuation benefits." His Honour continued by saying: "T will assess the plaintiffs credibility without taking that submission into account most strongly because I feel the reasons which I have just provided are sufficient to put that submission at rest." The plaintiff was effectively cross examined by counsel for the defendant and, on some matters at least, his evidence as recorded in the transcript suggests that he may have exaggerated his symptoms and been less than frank. However, in my opinion, his Honour's reasons for judgment are such that his assessment cannot be allowed to stand and there must be a new trial limited to damages. His Honour did not accept that the correct reason for the plaintiff resigning his job was that he could not carry on. He is recorded as saying he did so: "\.. for it was not until the person handling the plaintiff's case in the office of Messrs Anthony Malouf and Co... gave evidence that it became apparent in cross examination of her... that that firm first received instructions from the plaintiff within ten days of this accident, namely, 12 February 1987." It is true that the plaintiff consulted his solicitors soon after the accident and that proceedings were commenced in May 1987. However, his resignation in February 1988 can hardly be explained by reference to his retaining of solicitors in February 1987, especially when one bears in mind that he returned to work in July 1987. There may have been some mistake in the transcription of his Honour's extempore reasons but in my opinion it was not open to his Honour to reject the plaintiff on this issue for the reasons he gave or simply because of his unsatisfactory evidence about his reason for taking photographs of his damaged UARULLIPE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handle? JA) car. Moreover, it was not suggested to the plaintiff in cross examination that he gave up his job as a result of advice from his solicitors or in order to inflate his damages. As I have said his Honour rejected each and every one of the lay witnesses called to corroborate the plaintiff. The first of those witnesses was a Mr Glover who was the plaintiffs immediate superior and a supervisor employed by the company with a higher level of authority. He had had twenty eight and a half years of service with Ford. He said the plaintiff had no problems with his work before the accident but that when he returned after the accident he was a totally different man, and he was unable to do his job. He just could not cope. He referred to a problem on one occasion when the computer fouled up and the plaintiff was unable to handle the situation. He could not fix it and the witness could not understand what was wrong with him. As a result the company wound up with several dozen cars out the back with no seats at all in them. The witness said that in his view when the plaintiff left the Ford Motor Company in February 1988 he was not capable of carrying out his duties as a supervisor. Of equal importance is his evidence in cross examination that after the plaintiff had returned to his job the witness had to spend most of his time in the plaintiff's section because he could not run it. There were two leading hands there to assist the plaintiff but apparently they were timid souls and under the plaintiff's leadership after he had returned to work the section was, in the witness's words, "very very shaky." The Judge said that Mr Glover exhibited characteristics of mateship as understood in the Australian community, but he rejected Mr Glover's evidence because: "He was not in the position as a layman to assess the extent to which the plaintiff was disabled, if at all, when he returned to work in July 1987." With all respect to his Honour it seems to me that the witness was far better able to assess the extent to which the plaintiff's capacity to carry on his job as a supervisor had been detrimentally affected by the accident, than was his Honour assuming, of course, that Mr Glover was an honest witness. Instead of trying to assess the plaintiff in the artificial environment of the witness box in a court Mr Glover had the opportunity to see him at work in a hands on situation day in and day out between July 1987 and February 1988. Unlike his Honour, he knew the plaintiff before the accident as well as after the accident and, in a practical situation in which the plaintiff's capacity would regularly be put to the test. In my view, his Honour's reasons cannot be supported in this respect and he was not entitled to reject the evidence of Mr Glover for the reasons that he gave. The next witness was Joseph Willensen. The judge took an unfavorable view of this witness. He said that he gave the type of evidence one would expect from a competent shop steward. He said that the witness revealed: "a little part of his inner nature when he stated that the plaintiff had performed some upholstery work for him before the accident, and when he asked him to perform upholstery work after the accident, the plaintiff had refused." I regret I am unable to understand this part of his Honour's reasons and, in particular, I entirely fail to appreciate how the reasons, as given, form any proper basis for the judicial rejection of the evidence of this witness. He continued by saying, in his view, the witness was: "a man who lives by his wits." And added: 4 UNREPORTED JUDGMENTS "and I am sure that he would not think twice about coming to court, taking an oath and giving whatever evidence he thought was required of him." In fact Mr Willensen's evidence in chief may have been of little value in this case because he agreed that when the plaintiff came back to work he, at that stage, was working in security and did not see much of the plaintiff and was not in the plant any more. However, in my opinion, the judge was not entitled to reject Mr Willensen for the reasons he gave which were not put to the witness in cross examination and were not supported by the evidence. He then rejected the evidence of Marie Elizabeth Della because, in his view, it was not soundly based. He said: "T am sure that she only saw the plaintiff on sparse occasions after this accident, and on those occasions, the plaintiff was sufficiently aware and had his wits about him to present the proper picture with a view to her giving evidence on his behalf." The plaintiff was not cross examined to suggest that he had deliberately faked his symptoms on the occasions when Mrs Della visited him after the accident and, in those circumstances, in my view, it was not open to his Honour to reject the evidence of this witness on that basis. His Honour also rejected the evidence of Mr Sid Michael because he was the plaintiff's brother in law, and the evidence of Mrs Moujali the plaintiff's sister. As to her he said: "She is a lady who is living in a Housing Commission home, receiving a supporting mother's benefit and a person who is well aware of the principles of social security benefits and compensation in this community. She impressed me as a very aware young lady who well knew what was required of her in the witness box." Mrs Movujali was not cross examined to suggest that she was aware of the principles under which compensation was awarded in this community, nor was she cross examined to suggest that she had been rehearsed as to the evidence she would give in the witness box and knew in any sinister way what was required of her apart from the truth, the whole truth, and nothing but the truth. Finally, his Honour rejected the evidence of the plaintiff's wife as being full of hyperbole. There may have been some substance in this criticism. His Honour concluded this part of his judgment by saying: "Tt thus can be seen that the lay evidence called in support of the plaintiff's case can be easily explained away as I have indicated." In my opinion his Honour was not entitled to reject or explain away at the very least the lay evidence of Mr Glover, Mr Willensen, Mrs Della, Mr Michael or Mrs Maujalli for the reasons he gave. The Judge also rejected much of the medical evidence led on behalf of the plaintiff. In some cases he may have been justified in doing so but in other cases the reasons he gave cannot be supported. Thus he rejected the evidence of Dr Medhat Guirgis by saying that he could not understand how that doctor could come to the extreme diagnosis which he had in his report of 23 July 1987 in the light of the report of Dr Stern on which he based his own report. The opinion which the judge rejected related to the condition in the plaintiff's cervical spine at the level C5/C6. However, the report of the imaging scan by Dr Stern, on which his Honour relied in rejecting Dr Guirgis' opinion, was taken of the lumbar spine. So far as the cervical spine was concerned Dr Guirgis relied upon the report of Dr Ho which adequately supported his opinion. UARULLIPE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB Without going through all the details it would be sufficient at this stage for me to express the opinion that his Honour was not entitled to reject the evidence of Dr Eikens, the opinion of Dr Grady or the evidence of the psychologist, Mr Taylor, for the various reasons which he gave. The plaintiff's credit was, as I have said, a critical issue in this case and there was evidence both ways on that issue. Medical issues were also in dispute there being evidence both ways. It is possible that the plaintiff had a basically meritorious case which he unwisely attempted to improve by exaggeration. It is not necessary for the Court to express an opinion on any of these matters, and indeed it is not able to do so. It is sufficient, in my opinion, to conclude that the multiplicity of errors in this case are such that the judgment cannot be allowed to stand and this Court must order a new trial limited to damages. I propose that the appeal be allowed, the judgment for the plaintiff be set aside, and that the action be returned to the District Court for a re trial limited to damages. The costs of the first trial should abide the order of the judge conducting the new trial. The appellant is to have the costs of the appeal. Clarke JA I agree with the reasons and orders of Mr Justice Handley. I wish tomake only one short observation. The judgment under appeal should, in my opinion, be set aside because of a number of errors which his Honour made in assessing the credibility of the appellant and a number of witnesses, including medical witnesses. These mistakes included the rejection of the evidence of witnesses for reasons which either did not reflect on the witness personally or should not have been relied upon in the absence of a relevant challenge to the witness. It may be that the result reached by his Honour was the correct one but, as the trial judge made insupportable credit rulings and this court is unable to assess the credibility of the various witnesses the court is in no position to assess the damages itself and, therefore, to reach a positive conclusion that the verdict was either within or without the appropriate range. In these circumstances a new trial is inevitable in the light of the errors which have been detailed by Mr Justice Handley. Sheller JA I agree with the orders proposed for the reasons given by the othermembers of the court. Clarke JA The order of the Court will be those of Mr Justice Handley. 1. Appeal allowed. 2. Judgment for the plaintiff below is set aside. 3. The action is returned to the District Court for a re trial limited to damages. 4. The costs of the first trial shall abide the order of the Judge conducting the new trial. The appellant is to have the costs of the appeal. Counsel for the Appellant: C EVATT Instructed by: CARTERS, LAW FIRM Counsel for the Respondent: RC TONNER Instructed by: PANDRESAKIS (PARRAMATTA)