GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MEDIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 1 March 1994, 1 March 1994 [1994] NSWCA 113 DAMAGES — credibility of plaintiff — finding cannot be overturned on appeal unless trial judge incontrovertibly incorrect or finding glaringly improper Sheller JA The Government Insurance Office of New South Wales appeals against a judgment given by his Honour Judge Dent QC on 11 June 1992 in favour of the respondent. The judgment was concerned with two proceedings commenced by the respondent against the GIO in respect of a motor vehicle collision on 28 June 1986 and in respect of a second motor vehicle collision on 1 August 1986. In the proceedings arising out of the earlier accident the respondent succeeded on liability but in the proceedings arising out of the second accident his Honour found the respondent seventy-five percent responsible; thus whether the particular injuries suffered in the first accident were exacerbated in the second became of particular importance. The respondent claimed to have injured his neck and low back in the first accident. He denied having told his treating doctor, Dr Strinich, that he hurt his neck and low back again in the second accident. Doctor Strinich's contemporaneous handwritten notes and a report made by him on 14 August 1986 suggested that when he saw the respondent on 4 August 1986 he was informed that the respondent had more pain and stiffness in the neck and worse lumbar backache than he had prior to the accident. Doctor Bannister, to whom the respondent was referred by Dr Strinich, reported on | October 1986. There was no suggestion in his report that the respondent had told him he had hurt his neck and low back again in the second accident. Indeed in the evidence that Dr Bannister gave orally he said that, in his opinion, the respondent's neck and low back problems were due to his involvement in the first accident. This was based in part at least on the history given to him by the respondent. The appellant fairly concedes that, according to a report of Dr Higginbotham, the respondent told that doctor on 3 February 1987 that the second accident did not cause any increase of neck or back pain. Neither side called Dr Strinich. His Honour accepted the evidence of the respondent and said he was satisfied, on the entirety of the evidence, that the respondent suffered injury to his neck and low back in the first accident. The principal ground of appeal pursued at this hearing was against that finding. The appellant submitted that the evidence as to the severity of the second accident and the report notes from Dr Strinich were not given sufficient weight by the trial judge when he found no further injury to the neck and/or back in the second accident and, as such, this finding should not be allowed to stand. It was submitted there should be a new trial limited to damages in respect of each of the accidents. 2 UNREPORTED JUDGMENTS As is quite plain from his Honour's judgment he was alive to the force of the submissions made to him on behalf of the appellant about Dr Strinich's report and notes and the fact that he had not been called to give evidence. Despite the arguments that have been advanced, in my opinion it was open to his Honour to accept the respondent's evidence that he had not suggested to Dr Strinich that his neck and back had been further injured in the second accident. The principles are well established. They have been again reiterated by the High Court in Devries v Australian National Railways Commission (1993) 67 ALJR 528 at 531. Here the trial judge's findings depended, to a substantial degree, as he recognised, on the credibility of the respondent. The finding cannot be set aside by us, even if we think the probabilities of the case are against it, unless his Honour palpably misused the advantage he had by acting on evidence which was inconsistent with the facts incontrovertibly established by the evidence, or which was glaringly improper. In my opinion the appellant has not demonstrated that such was this case. Accordingly, in my opinion, on that ground, the appeal fails. The appellant also submitted that the amount of general damages, namely, $90,000 awarded by his Honour was excessive and beyond the range of a sound discretionary judgment. In my opinion, having looked carefully at his Honour's judgment, I do not think this ground is made out. Nor do I think the ground is made out that the award for economic loss based upon $150 a week was one that was not open to his Honour to reach. Accordingly in my opinion, the appeal should be dismissed with costs. Clarke JA I agree. Handley JA I also agree. Appeal dismissed with costs. Counsel for the appellant: R C Tonner Solicitors for the appellant: Grant Wilson - GIO Parramatta Counsel for the respondent: M J Williams QC/J E Keesing Solicitors for the respondent: Vickovich & Associates