DIMITROV v GIO OF NSW SUPREME COURT OF NEW SOUTH WALES CLARKE, HANDLEY AND SHELLER JJA 1 December 1994 [1994] NSWCA 84 DAMAGES — LIABILITY — EXACERBATION OF PRE-EXISTING CONDITION Clarke JA On 31 October 1990 Judge Conomos gave judgment in two actions in which the appellant sought damages against different defendants. Both defendants were, however, represented by the same counsel who admitted that his clients had breached their duties but denied that the appellant had suffered any damage as a consequence of those breach of duties. The issues which confronted Judge Conomos were, first, whether the appellant had established that he suffered any injury as a result of the first or second accident, or both, and, secondly, if he had suffered injury, what was the proper measure of compensation to award to the appellant. In the event Judge Conomos was not satisfied that the appellant suffered any consequences from either accident and he entered verdicts and judgments for both defendants. The appellant has appealed upon the grounds that his Honour failed to give enough weight to the evidence of the appellant, that his Honour erred in drawing inferences reducing the weight of the appellant's evidence, that his Honour erred in drawing inferences from the appellant's evidence which were not supported by evidence from the defendants, and that his Honour's judgment was against the evidence and the weight of evidence. The final ground is, of course, not a proper ground of appeal from a decision of a judge sitting alone, but I will not take time with that matter. In argument today counsel for the appellant who, I respectfully say, put everything that could be put on behalf of his client, submitted that the trial judge had reached erroneous factual conclusions and in doing so had not taken proper advantage of his position as a trial judge. On the contrary, according to the submission, the trial judge had misused his position and acted upon evidence which, if not irrational, was highly improbable. Before going to the judgment of the trial judge it is desirable that I refer shortly to the appellant's history. He was born in September 1943 and migrated to Australia in 1970. In September 1978 he suffered a lumbar strain while lifting a pallet at work, but recovered after a short while. In June 1981 he suffered another lumbar strain while pulling a trolley of material at work and again recovered after a short time off work. On 14 April 1982 he suffered a third lumbar strain. Following this event he suffered continuing and significant disability. His employer sacked him in May 1982 and apart from two weeks work some time later in that year, the appellant did not work between the date of his dismissal and the hearing before Judge Conomos. He compromised workers compensation proceedings in 1984 and either in that year or, more probably, 1985, he commenced receiving an invalid pension. His Honour was required to assess the case brought before him in the light of that history. 2 UNREPORTED JUDGMENTS The first accident of which the appellant complained occurred on 15 December 1984. According to Dr Marinkovich's report of 6 August 1987 he said that he was the driver of a vehicle which was hit from behind by another vehicle. He gave Dr Marinkovich further details of the accident, which were consistent with the evidence he gave in relation to the accident when he gave his sworn evidence at the trial. The case that he sought to make was that in this accident he sustained a severe aggravation of his lumbar problems. The second accident occurred on 6 February 1986 when a lady reversed her vehicle into his when she was leaving her position in a parking area. He claimed that in this accident he suffered from neck problems which had not troubled him before. The question which his Honour was called upon to decide was whether the appellant had established that he had suffered an aggravation of his lumbar problems in the 1984 accident, and a neck injury in the 1986 accident. In resolving those questions adversely to the appellant, his Honour said this - and I deal in the first instance with the 1984 accident: "I do not believe the plaintiff I am satisfied that the motor vehicle accident occurred as a result of the carelessness of Mr Lavender in driving his motor vehicle at an excessive speed and in his failure to keep a proper look out, thus causing the accident. However, I am not satisfied that the plaintiff suffered any injury in the accident of 15 December 1984. He was unconvincing when giving evidence. In addition I am satisfied that he gave divergent histories to his doctors because he did not suffer any injuries at all, either to his neck or in aggravation of any low back injury in the accident of 15 December 1984." In relation to the second accident his Honour expressed his acceptance of the evidence of a witness, Mrs Jenkins, who was the driver of the vehicle which collided with the appellant's vehicle, and said that she gave her evidence in an honest, forthright convincing manner. The acceptance of her evidence led his Honour to conclude that it was a trivial accident and that it was highly unlikely that the appellant suffered any injury in that accident. For this reason he found against the appellant in the claim in relation to that accident. It is apparent from the short references I have made to the judgment under appeal that his Honour did not accept the appellant as a witness of truth or as a reliable witness but, on the contrary, accepted evidence which was different from that given by the appellant and which threw considerable doubt on his case. In these circumstances it may well be enough simply to say that I am unable to detect any basis upon which this court would be entitled to interfere with the judgment, based, as it is, in large measure, upon the trial judge's acceptance and rejection of the witnesses called. However, in deference to the careful argument and in order to demonstrate that far from being shown to have erred, his Honour came to a conclusion which was quite understandable, I will refer shortly to some critical aspects of the evidence which were highly destructive of the appellant's claim. He said, as I have already pointed out, that he suffered an aggravation of a lumbar injury in 1986. He adhered stoutly to those assertions throughout his evidence and, when confronted with the fact that he did not appear to have given histories to the treating doctors consistent with that evidence, he simply said they had made a mistake. URJ DIMITROV v GIO OF NSW (Clarke JA) 3 His case was, I should point out, consistent with histories which he gave to assessing doctors shortly before the trial, but putting to one side for a moment a report and notes of Dr Mihajlov it seemed clear to me that the histories he gave the treating doctors were utterly inconsistent with his claim. Upon the premise I have indicated, that is that I am putting Dr Mihajlov to one side for the moment, the first doctor he saw in relation to either accident was Dr Marinkovich who, counsel indicated, would have been able to converse with the appellant in his native tongue, and he saw that doctor on 17 February 1986. At that consultation he complained, according to the doctor's report, of neck disabilities flowing from the accident of 15 December 1984, and he gave to the doctor a reasonably accurate description of that accident. The complaints outlined in the report were consistent only with neck injury. Similarly, the physical examination and the x-ray which was ordered all related to the neck area. It is true that the report was dated 6 August 1987 but apart from a matter raised by counsel there is no reason to suppose that the report was inaccurate in any way. Counsel, however, suggests that Dr Marinkovich got it wrong and got it wrong badly, and he proceeded to argue that because his Honour failed to discern this, his Honour had also made a dreadful error. The basis upon which counsel suggested that the doctor had got it wrong was that on 15 October 1989 he responded to a request from the appellant's solicitors referring to continuing complaints of low back pain and neck pain and saying that in his previous report he had failed to mention that the appellant suffered a whiplash injury and injuries to both shoulders as a result of the 1984 accident. For my part I fail to see how an inference of error in the earlier report can be drawn from the contents of this later report. The doctor goes on to say: "I can say that the injury sustained on 6 February 1986 certainly caused an aggravation of his pre-existing injuries to his left shoulder and neck which occurred on 15 December 1984, and his back injuries which occurred in 1978 and 1981 respectively. Mr Dimitrov consulted Dr Guirgis in relation to his first motor accident and Dr Bannister in relation to his second motor accident." If one refers to Dr Bannister's report one sees that the doctor has correctly expressed the matter in respect of which the appellant was referred to Dr Bannister, and Dr Bannister's report of 5 May 1986, expressly relating to the accident of 6 February 1986, says that he sustained an injury in his low back. There is no mention in that report of his neck. Tf one turns to the sole report from Dr Guirgis that is in evidence, one sees that the doctor saw the appellant on 14 April 1986 at the request of Dr Marinkovich and obtained a history of an accident in December 1984 in which he sustained an injury to his neck. All the treating doctors, with the exception of the one whom l initially put aside, proceed upon the basis that in 1984 he suffered a neck injury and in 1986 he had a low back injury. These assertions are completely and utterly at odds with the appellant's case. If I turn then to Dr Mihajlov, his notes were put in evidence and it is said that they may provide some support for the appellant's evidence that he was treated for lower back disability resulting from a 1984 accident, in 1985. The notes are, on any view, difficult to read, and a trial judge would necessarily have to proceed with great caution in placing reliance upon the writing in those notes, without some assistance or explanation from the person who wrote them. Obviously enough an Appellate Court would have to exercise even greater caution in seeking to rely upon these notes in reversing a trial judge. 4 UNREPORTED JUDGMENTS All that I can discern relevantly from them is that there may have been complaints of some back pain in 1985 which were not related to any accident, and there was an entry in February 1986, possibly the 18th, which would appear to relate to the invalid pension. There is not any apparent entry relating to an accident in 1984 or an accident in 1986, but the doctor says that the appellant attended his surgery on 2 June 1986 complaining of involvement in a motor vehicle accident in a car park. There is nothing in the doctor's reports which is capable of providing any content for Dr Mihajlov's report of 23 August 1989 and the evidence does not disclose whether he was relying solely upon his memory or whether he had received some information which he did not record. In any event, there is no mention of the 1984 accident. There are mentions only of the car park accident and the 1978 and 1981 injuries to the lower back. Dr Mihajlov's reference to the appellant attending his surgery in 1986 complaining of neck pains resulting from the car park accident are quite inconsistent with the histories depicted in the reports of the other treating doctors, and the history given to Dr Haber who saw the appellant on behalf of the defendant in February 1987 where, once again, the appellant complained that in the car park accident he had injured his lower back. This reference to the medical evidence gives some insight I think into the problems facing the trial judge. The case which the appellant sought to bring was totally inconsistent with the histories he gave to all the treating doctors, with the possible exception of Dr Mihajlov as appears from his report of August 1989. It is true that his evidence is consistent with the histories he gave the doctors in the period immediately preceding the trial from some time in late 1988 onwards, but nowhere does one find in the early stages a history consistent with his evidence. In those circumstances it is clear that the appellant, if he had hoped to persuade his Honour to find a verdict in his favour, needed to bring additional evidence, either from lay witnesses corroborating his problems following each of the accidents, or from the doctors in question explaining how it could be that they have recorded erroneous histories, or perhaps qualifying what they said. The appellant, however, did neither of these things. He called no corroborating evidence in relation to his disabilities and he simply tendered the reports of these doctors, unexplained and without at any stage seeking to query them as to whether they may have got it wrong. In those circumstances his Honour was faced with a witness who was uncorroborated and who gave evidence in critical respects different from histories he had given at the important times. If one adds to those problems his Honour's unfavourable reaction to the appellant as a witness, it is fairly obvious why the appellant failed to satisfy his Honour that he had suffered the disabilities of which he complained. What is more relevant for present purposes is that it is quite impossible for this court to reverse the trial judge's conclusions which, as I have sought to indicate, seem to be very soundly based on the evidentiary material before him. ORDER In my opinion the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. CLARKE JA: The order will be as I have indicated. Representation: URJ DIMITROV v GIO OF NSW (Sheller JA) 5 Counsel for the appellant: CK Stewart Solicitors for the appellant: Milicevic Counsel for the respondent: H di Suvero Solicitors for the respondent: Solr for the Government Insurance Office - Parramatta