ALEXANDROU vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and POWELL JJA 2 March 1994, 2 March 1994 [1994] NSWCA 4 Damages — Personal Injuries — No question of principle Mahoney AP The court is in a position to give judgment now and I will ask Powell JA to give the first Judgment. Powell JA This is an appeal from judgment delivered and verdicts entered by Sheller JA on 26 August 1992 in two separate actions which the Appellant, Mr Alexandrou, had brought to recover damages in respect of injuries which he claimed to have suffered as a result of two motor accidents - the first on 21 September 1982 and the second on 19 November 1984 - in which he was involved. In the first accident, which occurred at a time when the Appellant was seated in his motor car while it was stationary in Canterbury Road, Belmore, the Appellant's motor car was struck from behind by a truck owned by the Public Transport Commission of New South Wales and driven by a Mr Stojanovski, they being originally joined as the second, and first, Defendants in the proceedings which, in 1984, were commenced in the District Court on behalf of the Appellant - those proceedings appear to have been transferred to this Court in 1991. The Statement of Claim filed in the District Court contained the following (inter alia) "particulars": Particulars of Injuries The Plaintiff hit his head on the windscreen of the motor vehicle and then the side door of the motor vehicle resulting in a period of unconsciousness for about five minutes. He was taken to Canterbury Hospital and then referred to his doctor. (a) A head injury. (b) Neck injury (c) Soft tissue injury to cervical spine. Economic Loss The Plaintiff was aged 36 at the time of the accident. He had been self employed in a take away food business prior to the accident and his intention had been to purchase another business. It is alleged that as a result of the injuries sustained the Plaintiff is incapable of attending to a similar business or finding permanent employment and will lose wages and profits. Further particulars will be supplied." The second accident occurred when the Appellant was a passenger in a vehicle driven by a Mr Bessopoulos, apparently in the Nowra district. The exact nature of the accident is not clear as the Appellant claims to have suffered a degree of retrograde amnesia while Mr Bessopoulos, although having earlier given a short written statement in relation to the accident, was unavailable to give evidence. 2 UNREPORTED JUDGMENTS However, it would seem that, for some reason which is not entirely clear, the vehicle skidded and Mr Bessopoulos lost control, in consequence of which the vehicle rolled over and either collided with, or slid down, an embankment. The Statement of Claim filed on 7th March 1986 in this Court on behalf of the Appellant in the second action contained the following (inter alia) "particulars": "Particulars of Injuries (a) Multiple deep lacerations to the left face, eye. (b) frontal contusions to the lumbar and cervical spine. (c) unconsciousness. Particulars of Disabilities (a) Dizziness (b) Headaches (c) Depression (d) Numbness to left face (e) Lumbar pains and spine painds (sic) Economic Loss The Plaintiff suffered an accident on 21st September 1982 involving a motor accident which prevented him from resuming full time employment. It is alleged that as a result of the injuries sustained in the accident the cause of this action the plaintiff is incapable of attending to full time employment and will lose wages and profits. Further particulars will be supplied." In October 1991 there was filed in each of the proceedings a Statement of Particulars pursuant to SCR Pt33 R8A. The particulars of injuries and disabilities ill respect of the first accident (Exhibit "5S'') were said to be: "A. INJURIES The plaintiff suffer (sic) the following injuries: (a) Shock. (b) Abrasions, contusions and lacerations. (c) Head injury. (d) Injury to neck. (e) Injury to back. (k) Psychiatric injury. B. DISABILITIES: The plaintiff continues to suffer the following disabilities: (a) Headaches. (b) Pain and limitation of movement of the neck. (c) Radiation of pain from the neck to the left shoulder and left arm. (d) Episodic giddy spells. (e) Anxiety. (f) Depression. (g) Irritability. (h) Poor concentration. (i) Need to take medication. (j) Conversion disorder. (k) Reactive depressive state. By reason of the above disabilities, the plaintiff's social, domestic, recreational and work activities have been severely affected." The particulars of injuries and disabilities in respect of the second accident (Exhibit "6") were said to be: "A. INJURIES: The plaintiff suffer (sic) the following injuries: UWREXANDROU v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powel JA) (a) Shock. (b) Abrasions, contusions and lacerations. (c) Severe facial lacerations particularly to the nose and left forehead. (d) Injury to neck. (e) Injury to back. (f) Injury to pelvis. (g) Injury to stomach. (h) Injury to the hands. (i) Unconsciousness. (j) Head injuries. (k) Psychiatric injury. B. DISABILITIES: The plaintiff continues to suffer the following disabilities: (a) Scarring to the face. (b) Headaches. (c) Dizziness. (d) Nervousness. (e) Irritability. (f) Anxiety. (g) Depression. (h) Insomnia. (i) Conversion disorder. (j) Reactive depressive state. (k) Pain in throat. (1) Hearing loss. (m) Numbness to the left side of the face. (n) Pain and restriction and weakness in the left upper limb. (o) Pain and limitation of movement of the back. (p) Pain and limitation of movement of the neck. (q) Numbness of the left side of the scalp and head. (r) Loss of memory and impairment of concentration. (s) Vertigo and disequilibrium. By reason of the above disabilities, the plaintiff's social, domestic, recreational and work activities have been severely affected." In each set of particulars it was alleged that the Appellant had, since the date of the relevant accident, been, and that he would continue to be, either wholly, or, alternatively, partially, incapacitated for permanent employment. In this regard it should be noted - since, at the trial, it was clearly established that the assertion was false - that, in each set of particulars it was alleged that the Appellant had "attempted employment" - but only for 1 day on each occasion - on 3 occasions in 1983 and 1984, the implication being that he had otherwise been incapable of making any such attempt. Given the apparently dramatic increase in the Appellant's alleged injuries and disabilities, it will come as no surprise when I record that, between 1982 and August 1992, the Appellant had been examined - in many cases, on a number of occasions - by some 17 medical practitioners - specialists and general practitioners - or other professional such as clinical psychologists. Nor will it come as any great surprise when I record that the reports of these various professionals reveal widely divergent histories and records of complaints said to have been given by the Appellant to the writers of the various reports, and widely differing assessments of the nature and extent of the Appellant's alleged 4 UNREPORTED JUDGMENTS disabilities and widely differing prognoses as to the Appellant's future. What is, however, surprising to me - although I gather that it is now almost a commonplace in proceedings of this type - is that, although the differences to which I have referred were - or, at the least ought to have been - obvious, and although it was - or ought to have been - obvious that the quantum of damages to which the Appellant might be held entitled depended, in no small measure, upon the acceptability, or otherwise, of the reports of these various professionals, not one of them was called at the trial, either, to elaborate upon, or to be cross examined upon, his reports. Despite the fact that, as I have indicated, this practice seems to be commonplace, I can but say that it seems to me to be quite unsatisfactory, and one which places unacceptable - even an intolerable - burden upon a trial judge. In the light of the various matters to which I have just referred it was - or ought to have been - clear that, as the size of any award of damages to be made in favour of the Appellant - liability not being in issue - was dependent, in no small measure on the acceptability of the evidence which he was to give at the trial, his credibility as a witness would - as it, in fact, did - become a significant issue at the trial. Although it cannot be said that every aspect of his evidence which was to be challenged was expressly put to the Appellant during the course of cross examination, enough appears, in my view, to indicate that the Appellant was made aware that his evidence on important matters - as, for example, his post accident work history - was challenged. It is clear from his Judgment - which he had reserved, and in which he examined the evidence carefully, and in great detail - that Sheller JA concluded that the Appellant was a quite unsatisfactory witness - both as to the nature and extent of his disabilities, and as to his post-accident work history - and, further, that the Appellant had failed to establish a causal relationship between his injuries and many of the disabilities of which he complained at the trial. Lest any demonstration of this be thought necessary, I record the following comments made by His Honour. At Appeal Book at 424 and 425 His Honour said: I reject the suggestion that he was totally incapacitated for work. Moreover his attempts to suggest otherwise led me to conclude that the plaintiff was an unreliable witness who exaggerated his injuries and the effect of them. teeeeeeeee The plaintiffs unreliability as a witness both in terms of his work experience after the first accident and his symptoms is I find reflected in the reports of the doctors whose evidence was tendered on his behalf and admitted." It is equally clear that his assessment of the Appellant as a witness, and of the credibility of his evidence, bore heavily upon Sheller JA when he came to assess the damages to be awarded to the Appellant. Thus at Appeal Book at 430 His Honour said: "T find that as a result of the first accident there was some loss of earning capacity which, had the second accident not intervened would have had minimal effect on future earning capacity. In my opinion the plaintiff has substantially exaggerated the extent of his symptoms and thereby made it extremely difficult for me to quantify any loss." and later (Appeal Book at 431 and 432): "T find that the second accident produced a loss of earning capacity. vee I accept that the incident of which Mr Pieris gave evidence showed that the plaintiff was not able to continue work as a motor mechanic, unsupervised. The unchallenged evidence suggests that there were other avenues of employment UWREXANDROU v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney AP) open which were not pursued. However, I take account of the plaintiff's limited training, his language difficulties and the current economic climate and conclude that his chances of obtaining other employment are not great. The problem I have is to assess the extent to which this situation resulted from the second accident. In the first place Dr Stylis has said in his report of 21 May 1991 and I accept that the plaintiff's inability to work is dictated mainly by his back and shoulder and that the other difficulties he suffers from are merely aggravating factors. As I have indicated there appear to be lower back problems which I am not satisfied were caused by the accident and which have contributed to his incapacity. Further I am inclined to think that as Dr Dyball says the plaintiff's economic life is in some disarray and no doubt this is putting very formidable pressures on his family and him. He presented to Dr Dyball as an unhappy man reactively depressed over financial worries which were rather blotting out all other concerns. Dr Dyball does not regard him as psychiatrically disabled however in terms of work. I accept this." In these circumstances it seems to me that, unless - which, in my view, the Appellant has been unable to demonstrate - the bases for His Honour's assessment of the Appellant as a witness, and of the causal relationship, if any, between his injuries and his alleged incapacity to work, can be disturbed, there is no basis on which the present appeal - which is, in effect, against the alleged inadequacy of the damages awarded by His Honour - can be sustained. For these reasons, albeit that they are short, I would propose that the appeal be dismissed with costs. Mahoney AP I agree with what has been said by Powell JA. In deference to the careful submissions of Mr Fletcher, and the detail of his written submissions on behalf of Mr Alexandrou, I will add some short observations of my own. First, it is in my opinion clear that his Honour did not accept the plaintiff as a witness of truth or accuracy. The judge was, as the judgment indicates, impressed by what had been said and proved in relation to Mr Alexandrou's work history between the two accidents and after the second accident. The plaintiff had said in the statement which was tendered on his behalf (I refer to a statement apparently signed by him and dated 22 July 1992): "Since the accidents I have tried to get work but just have not been able to because of my pain and problems. I would not be able to manage a business as was my intention before the accident as I am not capable of doing it." In the course of the particulars given, to which his Honour referred, his Honour noted what had been said in pursuance of Pt33 R8A. Reference was made there to three attempts to get work and each related to, as it was there said, one day. The plaintiff in his evidence in chief before the court reiterated the position which had been there referred to. He said that between the first and the second accident he had tried to get work, for example, helping in the kitchen. He referred to other matters and it was put to him: "Q. Between the first and the second accident did you try and get any other type of work? A. Yes. Q. Where was that? A. In a garage. Petrol mechanic." When that matter was taken further the plaintiff referred to a person who was, I think, obviously the man Mr Pieris and he said: 6 UNREPORTED JUDGMENTS "T try to get a job but no one would give me a job because I was sick. I pleaded with him to let me work and he let me try and work with him there." He referred then to a tail shaft incident to which I need not refer. In respect of the period since the second accident his answer was: "I by to get a job as a dish washer. I try in another garage and yet another one. I try get a job through the newspapers, through unemployment office. I try to get a job everywhere but no one would give me a job. I ask the relatives if they knew anyone who would give me a job." The evidence in chief, therefore, was I think quite clear. The evidence in cross examination was quite different. As the judge said, he accepted that he had worked for a period with Mr Pieris although he was to an extent vague about that. He said, (I quote only a small portion of what was said), that he had worked for Mr Pieris "about three months, not at a continuous basis, slowly, slowly." Mr Pieris was called to give evidence apparently on behalf of the plaintiff. The picture that he gave of the plaintiff's working history with him was, I think, fairly to be described as quite different from that which had been given by the plaintiff. The plaintiff had worked with him during the period between the two accidents, that is after the first accident of November 1982. Mr Pieris referred to the plaintiff's complaints about difficulty in bending and lifting. But he said that he was working for a number of hours a week, at one point he described it as between fifteen to twenty hours a week. He referred to the detail of what had happened and in his evidence in chief dealt at some length with that situation. After the second accident, some time after about 1985 or 1986, the plaintiff again started to work for him and although he was not working very satisfactorily the evidence establishes, in my opinion quite clearly, that he was working for Mr Pieris in a way quite inconsistent with what he had said. Mr Pieris indeed indicated, towards the end of his evidence, that he had done Mr Alexandrou a favour to provide a job for him. He had been paying to him, I think, something of the order of $200 per week clear of tax. Mr Pieris was asked why did he said he was doing him a favour and he said: "Because with the money I was pay George - and, of course, it was, as I said, it was a black money. I could employ another mechanic and I could put it on my tax, all right, because you asking me questions which it's very hard for me to answer." Following that evidence the plaintiff himself was recalled and as I understand his evidence, he did not in terms deny what Mr Pieris had said but on one view he appeared to reiterate the effect of his previous evidence. I have referred to these matters because they show that, in my opinion, it was clear at the trial that there was a contest between Mr Pieris and the plaintiff in relation to a matter of particular importance, his credit and accuracy. His Honour saw both witnesses and clearly accepted Mr Pieris' account in preference to that of the plaintiff. That must have been, I think, destructive of the plaintiff as a witness either of credit or of accuracy. Therefore, notwithstanding what Mr Fletcher has said, and notwithstanding some sympathy which I feel for Mr Alexandrou, I am of the opinion that this is a case in which the demeanour of the witnesses played a significant part in the judge's decision and his acceptance and rejection of evidence. It is not necessary for me to reiterate what has been said in this regard in the cases. Particular reference has been made to Jones v Hyde (1963) ALJR 349 and to the decision of the High Court in Abalos v Australian Postal Commission 171 CLR 167. There are other cases which deal with this aspect of the matter: UWREXANDROU v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney AP) see eg Louth v Diprose (1993) 67 ALJR 95. One matter has been relied upon significantly by Mr Fletcher and it is appropriate that I refer to it. Mr Fletcher has pointed out that his Honour, in his judgment, has relied upon the contrast that appears in the medical reports tendered. The contrast relates to the history and the symptomatology of which the plaintiff complained to the various doctors. To some he said one thing, to some he said another: I take that as a sufficient summation for this purpose of what his Honour took from those statements. It is clear, in my opinion, that there was inconsistency between the symptomatology and indeed the history generally as reported by the doctors. Reference was made to this by the judge in his judgment. The submission that was made by Mr Fletcher was that before reliance can properly be placed upon such an inconsistency, against the credit of a party, the particular matters should be put to the party so that the party should have such opportunity for explaining, if he can, the particular inconsistencies or discrepancies. It is accepted that some at least of those, perhaps all of them, were not put to the witness in terms. However two things, may be said. First, it was, I think, clear on the face of the documents that there was a difference between the evidence tendered by the parties from the medical witnesses. In this regard some of the medical reports referred to (I put the matter generally) the defects in the history given by the plaintiff and/or to the difficulty in obtaining a satisfactory account of the symptoms which were complained of. I think that it was clear to the parties that there was or would be an issue in this regard at the trial. The other difficulty arises from the fact that, as Powell JA has pointed out, none of the medical witnesses was called to give evidence. I do not wish to deprecate the structuring of cases so as to avoid unnecessary witnesses and so as to save time and cost in the conduct of them. But where it is apparent that there is likely to be a strong conflict of a kind such as arises in the present case, it would obviously be of assistance to a court deciding the matter to have doctors called who can speak upon matters in question. To tender medical reports in this way, when they are inconsistent ill the way that these were, puts a judge in a difficult situation. One would have expected that the differences would have been put to the plaintiff for explanation in his evidence in chief. It puts him in a position in which, if the plaintiff does not deal with them, he must choose between the reports as to which he relies upon: the parties clearly expected that he would do so. Accordingly, he may, (I think, he is expected to) draw inferences from them, particularly if they are unexplained. They were, as is the general practice in these matters, tendered on the basis that they were evidence of the facts stated and that inferences might be drawn accordingly. As I have said, it was apparent that an issue would arise as to these inconsistencies. The matters were not put to the plaintiff in chief. The defendant did not put each discrepancy to him. I do not think that plaintiffs counsel expected that he would. In the circumstances I do not think that that is a ground for upholding the appeal. No injustice was done. The procedure which was followed had the effect that each party was clear as to what the relevant issues were and that if the plaintiff's advisers desired to salvage the position by explaining the inconsistency between the medical reports, it would be open to him to do so. Indeed, as I have suggested, it would, in the relevant sense, be expected of him that he would do so. 8 UNREPORTED JUDGMENTS Therefore, notwithstanding what Mr Fletcher has said, I do not think that point warrants the upholding of the appeal in the present case. I agree with the orders that are proposed. 5 Meagher JA I agree with both my brethren. Mahoney AP The order of the court will therefore be that the appeal is dismissed with costs. Appeal is dismissed with costs. Counsel for the Appellant: FV Fletcher Instructed by: JP O'Neill (Bankstown) 15 Counsel for the Respondent: HG Shore Instructed by: GM Meadows