RIFEKAH HEJAZI vy GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI vy GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 7 and 8 July 1994, 5 August 1994 [1994] NSWCA 127 RETRIAL ON ISSUE OF DAMAGES — CREDIBILITY — DEMEANOUR — MISCARRIAGE OF JUSTICE — BIAS — JUDICIAL INTERVENTION EXCESSIVE The two appellants had been in a car driven by the first appellant, RH, when it was involved in an accident with another vehicle which failed to stop at a stop sign. The defendant did not call the driver of the other vehicle, but in cross-examination of the second appellant, MH, challenged his presence in the vehicle being driven by RH, his mother, at the time of the accident. The trial judge found that MH was a passenger but said that "in a multitude of respects" MH and RH were evasive and unreliable witnesses. He then said that both plaintiffs succeeded on liability "only by the slightest tipping down of the scales in their favour". He awarded MH $1,043 and RH $1,068. The judge gave six particular reasons for regarding MH's evidence as unsatisfactory, in addition to his views on his credibility generally. The judge intervened extensively during RH's evidence, cross-examined her at length, and recalled her on his own motion for further cross-examination by himself. He evinced suspicion about her evidence from an early stage, and this was apparent during his interventions. The appellants appealed alleging that they had not had a fair trial. Held: (1)The judges credibility findings adverse to MH were flawed because none of his six stated reasons for regarding MH's evidence as unsatisfactory could be supported. It was therefore necessary to order a new trial limited to damages. (2) RH had not had the appearance or the substance of a fair trial and it was also necessary in her case to order a new trial limited to damages. Galea v Galea [1990] 19 NSWLR 263, Government Insurance Office of NSW v Golby (NSW Court of Appeal, 15 April, 1992, unreported) and Vakauta v Kelly (1989) 167 CLR 568 applied. Clarke, Handley and Sheller JJA These two appeals were, by consent, heard together. They were brought from a judgment of Mahoney DCJ, who heard both actions together, in which he awarded Mohammed Hejazi ("MH") $1,043 and Rivekah Hejazi,(""RH") $1,068. It is claimed by both appellants that the trials miscarried and they seek a new trial. We will, in these reasons, adopt the same procedure as the trial judge and deal initially with the appeal by MH. Mohammed Hejazi The case which was bought by MH was that on 22 March 1987 RH was driving a vehicle in which MH and other persons were passengers along Canterbury Road, Campsie, when another vehicle made a right hand turn in front of their vehicle causing a collision between the two. The evidence on the issue of liability was all given by witnesses called by the appellants and was not 2 UNREPORTED JUDGMENTS contradicted by any evidence from the respondent. Although, as might be expected, the evidence was not all entirely consistent the thrust of the case, which was that the other vehicle turned across the front of the car in which the appellants were, was clearly established. The respondent contended that MH had not established that he was a passenger in the car. It did not, as his Honour seemed to think, allege fraud but took the straight forward position that his Honour could not have been satisfied on the evidence that MH had been a passenger. The sole fact upon which the submission was based was that MH's name had not been given to the police officer as a passenger in the car. MH, who was 16 at the time, explained that he was shocked by the accident and he sat on a nearby brick wall while proceedings took place around him. His evidence was corroborated by the other occupants of the car who were not cross-examined on this issue. Although MH's presence in the car could hardly have been regarded as a live issue at the end of the evidence his Honour expressed some reservation about finding in his favour on the issue. Having decided that MH had established that he was in the vehicle his Honour turned his attention to a consideration of the issue of liability. In considering this issue he made this statement: "Tn a multitude of respects I found each of them (MH and RH) to be evasive, unreliable and quite unworthy of uncritical acceptance as retailers of the truth". He then analysed the evidence presented and finally held that it was "only by the slightest tipping down of the scales in their favour that these two plaintiffs have succeeded at all". We find it difficult to see how there could have been a serious issue on liability in the case of MH. His claim was that one or other, or both, the drivers were negligent and he could not, as we see it, have failed. Although the case on liability for RH was not quite so cut and dried the unexplained absence of the driver of the other vehicle led to the consequence that RH's case also could hardly have failed. The case of Jones v Dunkel (1959) 101 CLR 299, particularly at p 312 and 320, is an authority in point. Although the appeals have been concerned with the adequacy of the awards made by the learned trial judge we have taken the time to discuss the manner in which his Honour dealt with liability because his major finding on credibility appeared in that part of the judgment and, more importantly, because it forms an important introduction to the consideration of the attacks on his Honour's judgment on damages. The grounds of appeal relied upon by MH in his amended notice of appeal were as follows: "1. That the learned trial judge erred in relying upon the six matters set forth in the judgment (AB 149-150) in arriving at a conclusion that the evidence was unsatisfactory. 2. That the amount of damages was wholly disproportionate to the injuries and disabilities established on the evidence. 3. That the learned trial judge concluded that the appellant used his presence in the car on the occasion of the accident to attempt to reap a windfall verdict by gross exaggeration without evidence to support such a finding. 4. The findings made did not support the conclusion in Ground 3." Before turning to his Honour's findings it is desirable, in the light of ground 3, that we say something about the claim for economic loss which was made by MH. He gave evidence that at the time of the motor vehicle accident he was employed by his father at a weekly wage of $250 net. He was away from work WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMEB HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) post-accident for approximately eleven months. However, his father had closed the business shortly after the accident and as a consequence MH abandoned his first period of wage loss but for the two weeks when he was originally off work and when work was available. He submitted, therefore, a claim for $500 in respect of those two weeks and this claim was ultimately accepted by his Honour who described the wages as being from "a generous employer father to a sixteen year old son". The schedule relied upon by MH in support of his case then proceeded: "The Group Certificates tendered in the appellant's case establish the following: From 11.11.87 to 30.6.88 the appellant was 91.12 employed by Kylbrew Pty Ltd (A & D Kitchens) at a new weekly wage of (AB 138) (Group Certificate Ex F1) From 1.7.88 to 23.12.88 the appellant was 122.17 employed at Kylbrew at a new weekly wage of (AB 140) (Group Certificate Ex F2) From 19.6.89 to 30.6.89 the appellant was 146.00 employed by Betterbuilt Furniture Pty Limited at a new weekly wage of (AB 141)(Group Certificate Ex F3) After 13 months employment with A & D Kitchens the appellant's evidence was that he had to give up work due to discomfort in his back. He was out of work for 6 months (AB43U) The appellant has established a loss of 26 weeks at 3,176.42 $122.17 Again, the appellant was required to break from work due to pain. He had 12 months off between leaving Betterbuilt Furniture and obtaining work for his present employer. He submits a loss of 52 weeks at $146.00 7,592.00 TOTAL CLOSED PERIOD WAGE LOSS TO $11,268.42 1.7.90 This figure is crystallised and interest at, say, 16% 1.802.94 is payable to date of judgment. The calculation for 1 year to 1.7.91 is $13.071.36 A further cushion should also be allowed against the probability of some extra time away from work in the future." As is obvious from this document the claim was a modest one. Of course the modesty of the claim did not exclude the possibility that the claim was exaggerated. On the other hand it hardly seems that MH was seeking 'a windfall'. It is with that background that we turn to consider the first ground of appeal asserting error in the trial judge in relying upon the six matters which were set forth in his judgment as demonstrating the extremely unsatisfactory nature of the claim. The first was expressed in these words: 4 UNREPORTED JUDGMENTS "The police officer who attended the scene listed all the people who claimed to have been injured. This male plaintiff was not one of them. He claims to have been in shock as a result of the accident, although he was unable to provide a word picture of that condition, and to have gone and sat on a brick fence near the intersection while waiting to be taken to the hospital." The police officer said, in his evidence, that there was a male person at the scene whose name he didn't obtain. MH himself said that he was shocked - by that we take him to mean dazed - by the accident and that he went and sat on the wall until the ambulance came. He was not, however, in any pain. In those circumstances the fact that he didn't claim to the police officer that he had been injured was, in our opinion, hardly a matter for criticism. The second reason was expressed in these terms: "When he arrived at the hospital this plaintiff did not put himself forward as requiring any attention from the staff. Even in the case of a sixteen year old boy born to migrant parents who may find the way of life in Australia strange, I find this situation quite surprising if, indeed, he were either in shock or in pain. If he were in shock more probably than not someone at the hospital would have detected it or had it pointed out by the ambulance crew who took him to the hospital. If he were in pain I am satisfied that he would have spoken up for himself. " MH said, as we have already pointed out, that he was not in any pain following the accident. His evidence was to the effect that it was not until he woke up the next day that he felt pain in his back. There is no evidence that he was in pain at the hospital and to that extent his Honour's observations were unjustified. The position regarding shock is not quite so clear. The phrase "in shock" is a somewhat vague one covering, on the one hand, someone who is somewhat dazed by traumatic events and on the other hand a person in a state of life-threatening shock. As we read MH's evidence he was in the former category, most appropriately described as being 'shocked by the events'. Certainly there is no suggestion that he suffered from a serious condition of shock. In these circumstances we find it impossible to draw any adverse inference against him on the basis of his evidence that he didn't complain of pain or shock at the Casualty Department of the hospital to which he went with his mother, who was claiming to be injured. Nor do we think it realistic to have expected either the ambulance crew who were looking after an injured person or a busy hospital casualty department to see that this sixteen year old boy was dazed and take him in hand. In our opinion there was no basis for any criticism of MH to be found in his not having reported his being shocked at the hospital. The third reason is expressed in these words: "He claims to have visited his family's general practitioner a couple of days later. This is supported by the doctor's report (Exhibit A) as to date but not as to location of symptoms." Pausing there it will be seen that MH's basic claim was corroborated. His Honour, however, considered that the complaints of pain to the general practitioner were inconsistent with those given in evidence by MH. Unfortunately his Honour did not amplify his statement or explain any inconsistency. It is true that MH did indicate in court the area in which he was suffering pain. This occurred after he had given evidence that on the day following the accident his lower back was hurting him and he was asked "Whereabouts precisely in your lower back?". The area he indicated was described by his Honour in these words: WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMEB HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) "He had pointed in court on a few occasions to where he had been suffering the pain, and indicated two discrete areas, one on each side of his body, posteriorly to the iliac crests." The doctor's report, which is said not to support his evidence, simply states that MH presented with "low back pain". This is, in our view, entirely consistent with MH's complaint. The report also states that upon examination the doctor noted "tenderness over the lower lumbar spine" and, perhaps, the judge thought this was a different area than that shown by MH in the witness box. We do not agree that what appeared in the report demonstrates inconsistency. Tenderness in a specific area does not necessarily mean, particularly so far as the lumbar spine is concerned, that pain or discomfort is felt in precisely the same area. His Honour may have had a different view but the point is that in the absence of some medical evidence supporting the proposition that there was an inconsistency between MH s demonstration in court and his complaints of tenderness to his general practitioner it was not open to the trial judge on the evidence to draw an adverse inference against MH. The fourth reason is expressed in these terms: "For an alleged injury which has been proved to be no more than a soft tissue condition, he has not responded, in any significant way after the first two weeks, to four years of supervised analgesic prescriptions and physiotherapy." MH's own evidence was that he had pain which came and went. On 5 September 1989 (two and a half years after the accident) his complaints to Dr Maniam were described by the doctor in these terms: "There were residual problems and these were experienced on a periodic basis but the main disability was that of being unable to participate in sporting activities." The doctor observed that at the time of testing there were only minimal clinical signs and he concluded that a large part of MH's problems had subsided. It seems to us that, with respect, his Honour has overstated the way that MH was putting his case but in any event the extent of disability was a matter for assessment and not a reason for rejecting the claim. If, at the end, the judge thought that the claim had been exaggerated that would lead to a finding adverse to the plaintiff to some extent. But there is a circularity in the argument that the ultimate conclusion that the plaintiff was exaggerating exposed an unsatisfactory aspect of his evidence. The fifth reason is, we regret to say, difficult to comprehend. MH complained, at all times, of lumbar problems. That is reflected in his own evidence and in complaints he made to all the doctors whose reports were tendered including the treating doctors, Dr Assaad and Dr Salama. However, on 9 October 1987 Dr Salama performed a manipulation of his lumbar spine under anaesthetic. That was the evidence given by MH and it was supported by Dr Salama's report of 26 October 1988. During the course of the trial a number of accounts were tendered to establish the out-of-pocket expenses incurred by MH. Amongst them was an account by the anaesthetist who administered the anaesthetic and it read: "9.10.1987 Manipulation of Cervical Spine". In the light of the fact that no evidence was led of any problem with MH's cervical spine it is obvious that the anaesthetist's secretary made a mistake and, for obvious reasons, MH was not challenged with this apparent inconsistency. Notwithstanding, his Honour regarded the matter as significant, as is demonstrated by its inclusion in the list of examples of extremely unsatisfactory evidence. What his Honour said about it was this: 6 UNREPORTED JUDGMENTS "The only way his learned counsel could deal with this in his final address was to suggest that the word cervical 'must be an error, because Dr Salama only reports on lumbar spine problems'." Pausing there we do not think it can be doubted that counsel's suggestion was correct. His Honour continued: "Tf that submission is to be accepted the next question is: What was the error? Was it in the dictating of the receipt? Or was it in the selection of site to be manipulated, once the plaintiff had been rendered unconscious? It should be remembered that the plaintiff complains that his lumbar spine was not improved by the process. All of these questions, of course, entirely overlook the question of the appropriateness of manipulation under anaesthetic for 'a musculo-ligamentous injury of the back." We put to one side the implied criticism of the treating doctor and conclude our comments on this aspect with the observation that the medical account provided no support for criticism of MH, particularly as he was not confronted with a suggested inconsistency. His Honour was, in our opinion, in error in thinking otherwise. The sixth reason should be quoted from the judgment: "... the different histories recorded by Drs Salama and Maniam are notable in their own right on the face of those two reports and particularly so when viewed against the dearth of any evidence from the male plaintiff himself to explain those inconsistencies." Although it cannot be said that the histories were identical we have had difficulty finding any inconsistencies of note. What is more important is that the criticism that the plaintiff failed to explain the inconsistencies was quite unfair in the context that there was no cross-examination directed to this issue. Our conclusion is that not one of the suggested reasons supports the proposition that "The evidence adduced in support of this claim is unsatisfactory in the extreme". In our opinion each of the reasons given failed to justify the conclusion and, whether they be taken individually or as a group, they constituted no support for the statement made by his Honour. Of course not every error in a trial judge's reasons for judgment will lead to the conclusion that there should be a new trial of the action. But these errors were of primary importance. The assessment of MH's damages depended in large part upon the trial judge's acceptance of MH as a reliable witness. We have already referred to a statement made by the trial judge when dealing with liability reflecting adversely on MH's credit but later he made an even more damning indictment of MH. He said: "T am not satisfied that the plaintiff has been honest with the court when recounting either his injuries or their sequelae. I am satisfied that he has used his presence in the car on the occasion of the accident to attempt to reap a windfall verdict by grossly exaggerating such injuries as he did sustain and their sequelae." The only reasons given which could possibly he regarded as supporting the two findings on credibility are those which we have concluded were erroneous. No doubt a trial judge is entitled to take account of the demeanour of a witness in determining his or her credibility although, with respect, we doubt whether a judge could make such damning findings relating to the credibility of a witness in the absence of some substantive evidence which, taken together with an unsatisfactory demeanour, lead the judge to that conclusion. It is not, however, necessary to deal with that particular problem in these reasons because the judge WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) did not expressly limit his findings on credibility to an assessment of demeanour but based them substantially, as we read his judgment, upon the reasons to which we have referred. It follows, in our view, that the findings on credibility are flawed and cannot be allowed to stand. The consequence is that the judgment must be set aside and a new trial of the action ordered. In these circumstances it is unnecessary to consider the second and third grounds of appeal. The court was invited to reassess damages but as any assessment depends essentially upon an evaluation of the evidence of MH and as questions of credibility arise it is quite clear that the court is in no position to accept the invitation. The following orders should be made: (1) Appeal allowed; (2) Judgment of Mahoney DCJ, except as to liability, is set aside and the matter remitted to the District Court for a new trial. (3) The respondent should pay MH's costs of the appeal and is, if qualified, to have a certificate under the Suitors Fund Act 1951; and (4) Costs of the first trial to be reserved for decision by the trial judge in the second trial. Rifekah Hejazi The amended notice of appeal contains a number of grounds but the appeal itself has turned on grounds 2 and 3 which read: "2. The learned trial judge intervened during cross-examination of the appellant in a manner and to the extent whereby the trial miscarried. 3. That the intervention and the comments made by the learned trial judge gave rise to a reasonable apprehension of bias or otherwise went beyond conduct necessary for a fair trial." It should be noted at the outset that MH gave evidence before his mother RH and it may be that the adverse view his Honour formed of MH explain the interventions which have led to the present complaint and the very small judgment in RH's favour. That possibility can, however, be put to one side for the moment. Because of the shortness of the trial it is convenient to set out each of the interventions of the trial judge relied upon before analysing whether they lead to the consequence that there should be a new trial. An additional advantage of doing this is that it enables the reader to see the full picture. The first intervention was described by Senior Counsel for RH as constituting a close examination of her upon the subject of other persons in court and a lecture on the need for her to tell the truth. It followed some questions by the cross-examiner on an asserted inconsistency between evidence that she was giving to the court and evidence she had given at an arbitration hearing in December 1990. [It appears that her claim had previously been submitted to arbitration and that one party had not been satisfied with the result and had sought a re-hearing in the court. That is of no present moment although RH did seek, and was refused, leave to raise a new ground of appeal asserting that this cross-examination breached a provision of the Arbitrations (Civil Actions) Act 1983.] We will quote all the questions asked in this particular intervention which occupied nearly four pages of transcript: [The appellant gave evidence through an interpreter. ] "HIS HONOUR: Q. Before you go on, Mrs Hejazi you realise that what I have to do is to weigh up the evidence from any witnesses in the case, do you not? A. Yes. 8 UNREPORTED JUDGMENTS Q. Do you realise that one of the ways in which a judge weighs up a person's evidence is to say to himself, how much reliance can he place on what the witness has said, do - you realise that? A. Yes. Q. Do you know the names of the two women who have just gone out of court? A. No. Q. Are you sure? A. Those who went out of court right now? Q. Yes, they have gone now? A. No. Q. Do you know one of them was in this court room last Thursday swearing she was a back seat passenger in your car? A. Yes. Q. What is her name? A. Nouha Q. That is Nouha Ibrahim? A. Yes. Q. Why did you tell me that you did not know her name? A. I thought you were asking me about now, I did not see anyone now? Q. Mr Kelleher asked you this question and you gave this reply and I am reading from my notes; "You have not mentioned this unconsciousness until today, have you?' and your reply was 'I don't remember.'? A. Yes, I do not remember. Q. Do you remember giving evidence before an arbitrator last January? A. I do not remember that. Q. What is your birthday? A. 15/4/46. Q. What is your son's birthday? A. The eldest was born on 29/10/1970. The second is 9/7/73 and the girl on 6/4/1980 and the youngest on 29/811983. Q. Is the youngest another son? A. Yes. Q. They are important dates to remember, are they not, your children's birthdays? A. Of course, I always have to remember them. Q. Do you realise that some evidence in this case is also important? A. I do not know. Q. There is a smile on your face when you answer that question, is there any particular reason why you smile? A. None whatsoever. Q. Madam, what I am trying to make clear to you is this, one of the things I look to is whether or not a witness is doing her best to tell the truth? A. Yes. Q. Do you understand that also another thing I look for is whether the witness is giving answers, some of which are truthful and some of which are not? A. Yes. Q. Do you understand also that one of the ways I solve those sorts of problems is to look to other parts of the case, to see if they help? A. Yes. Q. And one of the ways in which I am able to test whether or not I accept what a witness says in the witness box is to see whether or not the witness has said the same thing about the same topic when previously asked about it, do you understand that? A. Yes. Q. Do you understand now why it is important for me to know whether or not you have mentioned this unconsciousness when you gave evidence at your arbitration in December 1990? A. Yes. Q. Do you understand that? A. Yes. Q. Do you understand that I am aware that there could be many reasons why a person may forges something? A. Yes. Q. And I think using the commonsense that one reason why someone might forget something is if they are under a lot of stress or pressure from another source? A. Yes. Q. And it might well be that in their mind they say 'Oh, this particular thing is not worth my while worrying about, I've got too many other problems' do you understand that? A. Yes. WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) Q. Do you understand also that if you say you cannot remember things, it is not going to be much help to your case if you just rely on what the doctors might happen to say? A. I would answer the questions, if I do remember anything I would give an answer but if I do not remember anything I will just say I do not remember. Q. Madam, there is a rule of law that says that if the doctors make reference to your complaints but you do not, I have to look very very closely at the case before I give you any damages? A. Yes. Q. Do you understand that? A. Yes. Q. Do you know either of those two women who have just come into court now? A. Now? Q. Now, have a look at the back of the court? A. Yes. Q. Who is the lady in the black jacket? A. My next door neighbour. Q. She was the lady who was sitting alongside Nouha Ibrahim earlier in your evidence, was she not? A. When? Q. When you were in the witness box? A. Nouha Ibrahim was not here. Q. She is not now but she was a little while ago? A. No. Q. Whose (sic) the lady with the blond hair alongside your next door neighbour? A. Angela Danchali. Q. Is that the other occupant of the car that you have mentioned? A. Yes. Q. It may well be that because of the position the interpreter was in previously that you did not see the two women who came into court when you were in the witness box and to whom I referred when I asked you questions about them, if that is the case I still wonder to myself why it was that you said you did not know them rather than to say that you could not see them? A. I could not see them because you are standing right in front of me? Q. You are referring to the interpreter when you make that answer, is that so? Q. At the time I was asking you questions about the two women who had come into court there was a total of three women in the court, was there not? A. No. Q. You could see the one woman sitting behind your barrister, could you not? A. Yes. Q. You can now and you could then too? A. Yes. Q. In fact you had to walk past her to come into the witness box, did you not? A. That's correct. SHORT ADJOURNMENT HIS HONOUR Q. Mrs Hejazi, do you understand various things I was saying to you for five or ten minutes before the adjournment? A. Yes. Q. I want you to understand that I said those things to you to give you a clear understanding of the way courts operate when they are assessing evidence in a case? A. Yes." The next intervention occurred after the cross-examiner had examined RH for a period which occupied approximately five pages of transcript. His Honour then intervened again, on this occasion to question the appellant about her son's case: "HIS HONOUR Q. Did it ever occur to you to say to your Doctors, Why don't you - send me to the one my son is going to and see if they could do anything for me'? A. No, I did not tell him. KELLEHER: Q. Do you [have] any idea which one your son is going to? A. No. HIS HONOUR Q. Did you ask the Doctor why he was sending you to different ones? A. No I did not ask him. 10 UNREPORTED JUDGMENTS KELLEHER Q. You never bothered to ask whether his physiotherapy was doing him any good, is that right? A. No, I did not ask him anything. Q. You did not ask him a thing at all, is that what you are telling his Honour? A. No. HIS HONOUR Q. He is your son? A. yes. Injured you say in your car? A. Yes. On the same night that you say you were injured? A. Yes. He went to the same GP doctor as you? A. Yes. He went to the same specialist as you? A. I do not know if he did or not. Did you not ask him? A. No. Has he lived at home with you all the time since this accident. A Yes. . Is there any particular reason why you did not ask him at any stage what Doctor he had gone to? A. No but it had nothing to do with me. Q. Did you ask him at any stage how he was feeling? A. Yes he complained of being in pain. Q. Did you talk to him about whether or not perhaps he ought to change his doctors, to see if anybody could do something for him? A. No. Q. Why? A. Because it is his own business, it had nothing to do with me. Q. But he is your flesh and blood, he is your boy, is he not? A. Yes but in this country here the boy is not for his mother or for anybody. Q. How about in your country? A. My country is different, my son was born in this country here. Q. He is still your boy, is he not? A. Yes. Q. If his back or whatever part of his body was still sore, it was not of any interest to you, his mother, to know if the right thing was being done for him? A. I was more worried about his sister than him. Q. You have told us that your daughter got ill in April 1988, did you not? A. Yes. Q. In the 13 months prior to that, did you not take any interest in the wellbeing of this Australian born son of yours that was injured in the same car smash as you? A. When my daughter got sick I did not worry about anything else, there was only me to look after her. Q. Iam talking in the 13 months before that? A. I do not remember much now. Q. You cannot explain to me why it was that you did not say 'that doctor is wasting your time, try another one'? A. I did not say anything, it was not my problem. Q. How old is Mohammed? A. Twenty. Q. In 1987 he was 16, is that right? A. Yes. Q. You are still saying it was not your problem, your 16 year old boy talking about the constant pain and it was not your problem. A. He was the one in pain." Counsel for the respondent then asked two questions and his Honour went on, this time on the subject of RH's physiotherapy: "HIS HONOUR: Q. Madam, I apologise to you if you have the impression that I was putting material to you which is incorrect. Do you remember me asking you why it was that you and your son were going to different places for physiotherapy? A. Yes. Q. The fact of the matter is, however, is it not, that you were both going to the very same place for physiotherapy? A. Yes we went to the same physiotherapist but he would go by himself and I would go by myself. Q. And you did not know where he was going to for his physiotherapy, did you? A. Yes it was only the physiotherapy that I knew he was going to. LLLELLE WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) Q. The Punchbowl Rehabilitation Centre is the name of the place where your $1,699 is claimed for, is that right? A. I do not know. Q. You smile Madam, is there any particular reason that caused you to do that? A. No because I do not know. Q. Madam, there is a claim put in on your behalf by your solicitors for the cost of treatment of you at the Punchbowl Rehabilitation Centre? A. Yes. Q. That claim is for $1,699 A. Yes. Q. There is a claim put on behalf of your son by his solicitors who are also your solicitors, for treatment given by Vilano Rehabilitation Centre, that is for $133.40? A. Yes. Q. It has subsequently been changed, I think, in the amount but both places are located at 749 Punchbowl Road, Punchbowl? A. Yes." Somewhat later his Honour asked two further questions on the topic. They were: "Q. What is the name of the man who does the massaging or physiotherapy? A. I do not recall his name. Q. What is the name of the girl on the front desk that you registered with and tell her that you turn up for an appointment? A. I do not remember her name." After a few more questions by the cross-examiner his Honour turned his attention to RH's means and her assessment of the case. The exchange was as follows: "Q. Have you got plenty of money? A. I have nothing. Q. How much do you think this case is worth to you? A. How would I know about these things, I know nothing, it's my first case? Q. Do you mean to say Madam, that at no stage has anyone said to you, "Well now, the insurance company is going to put an offer to you at some stage or other, how much do you want'? A. No, I 'm not asking for anything, I'm asking to get well. KELLEHER: Q. I put to you again, are you prepared to say anything you think would assist your case regardless of its truth? A. Yes. HIS HONOUR: One moment please, would you translate the last question and answer to her. (Interpreter complied) HIS HONOUR: Q. Madam, is that the answer you intended to give? A. All I care about is - Q. The question and answer that has been read out to you, is the answer you intended to give? A. what question. (Question and Answer read by Court Reporter) A. No I would only say the truth. Q. Why did you answer it the way you did. A. Because I misunderstood the question." After five more questions by the cross-examiner and two more by his Honour, the cross-examination concluded. But that was not the end of the appellant's evidence for his Honour recalled RH for further questioning by him. This was a relatively lengthy interlude in the trial which occupied over three pages of transcript as follows: "Q. You have been to see Dr Amazis Bolis Salama? A. Yes. Q. Did you speak with him in English or Arabic? A. In Arabic. Q. Did you have an interpreter with you? A. No he does speak Arabic. Q. He says that he first saw you on 9 June, 1987 would that be right? A. Yes. Q. About two and a half months after the accident? A. Yes. Q. Were you on your own in the room with him? A. I do not remember. 12 UNREPORTED JUDGMENTS Q. Just think back to the first time you saw Dr Salama, do you remember the examination he gave you? A. No, it has been a long time, I do not remember. Q. I suppose he asked you to strip off to your bra and panties, did he? A. I would not remember. Q. You would not remember? A. The first time no, I do not remember. Q. At any time did he ask you to do that? A. No. Q. Are you aware that he reports as having seen prominence of your second rib? A. Yes, that's the one in my chest. Q. Are you aware that he has talked about the curve of your spine, just above your belt level? A. I do not know, no. Q. You can take it that he did talk about those parts of your body in his report. Did he ask you how it was that you had suffered your injuries? A. I do not remember much. Q. Do you remember the sorts of things that you told him about what was troubling you following the accident? A. Well, I'm still complaining from the same things that hurt me after the accident, my neck, my shoulder and my chest. Q. Did you tell Dr Salama about those things, the first time you saw him? A. Yes. Q. Whatever you told him about, how you felt in your body, was it the truth? A. Yes. Q. Whatever you told him about how you had been hurt, was it the truth? A. I do not understand that. Q. What part don't you understand? A. The question you just asked me. Q. Whatever you told him about the parts of your body that were troubling you, was it the truth? A. Yes. Q. Whatever you told him about, how those parts of your body got hurt, was it the truth? A. Yes. Q. Do you remember what you told him about how you had hurt your body? A. No I do not remember what I told him. Q. He claims that you told him that at the moment of impact you moved forwards several times and hit your chest on the steering wheel, did you tell him that? A. I do not remember much, I remember I told him about that it was hurting me, that's all. Q. Where would Dr Salama find out about you hitting your chest on the steering wheel if you did not tell him and there was no-one else in the room with you? A. I told him what was hurting me. Q. Did he not ask you how it had happened? A. I do not remember whether he did ask me or not. Q. Did you tell Dr Salama that your vehicle hit another vehicle? A. Yes I told him I was in a car accident. Q. Do you remember the accident? A. No I do not remember how the accident happened. Q. Did you ever know how the accident happened? A. No. Q. Dr Salama says that you told him that the other vehicle had failed to stop at a give-way sign? A. I was going, there was no give-way sign, there was traffic lights, I do not remember. Q. Where would Dr Salama get this idea that the other car would fail to stop at a give-way sign if you did not tell him? A. I don't know, I do not remember what I told him anyway. Q. Whatever you told him, was it the truth. A. Yes. WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMEB HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) Q. The only other place he could have got any details about the accident from would be from your solicitors who arranged the medical consultation, is it not? A. Yes. Q. Do you realise that then leaves open the possibility that your solicitors wrote to Dr Salama arranging the appointment and telling him that you were in an accident caused by another car that had driven through a give-way sign? A. I would not know. Q. Let me tell you, that is one possibility? A. (No answer) Q. If your solicitors told Dr Salama that, who would have told them? A. I went and saw a solicitor. QUESTION OBJECTED TO BY MR HALLIGAN. Q. Mrs Hejazi, it was Dr Assaad who sent you to Dr Salama, was it not? A. Yes. Q. If Dr Salama got the impression that in the accident the other vehicle failed to stop at the give-way sign, it seems to me that there is only a total of three ways he could have got that story, one was from you, one was from your solicitor and one was from Dr Assaad; can you think of any other ways in which Dr Salama could have got this story about the car going through a give-way sign? A. I do not know. Q. If it was from Dr Assaad, the only way he could have got it was from you, was it? A. I went and told Dr Assaad everything, he is my family doctor, he should know everything about me. Q. If Dr Salama got this version from your solicitor, that could only have come from your solicitor, that could only have come from what you told the solicitor, could it not? A. I do not know. Q. Can you think of any other way that Dr Salama could have got a version of the accident in which he has reported it, namely, that another vehicle has failed to stop at a giveway sign? A. I was going through the lights, that's all I know." Many of the questions asked by his Honour were, in our opinion, irrelevant to the issues with which he was concerned and some may well have been offensive to RH. That is, however, of little moment for it is the totality of the interjections which must be considered in order to determine whether RH has sustained either of her grounds of appeal. It is important to bear in mind when considering whether a new trial should be granted on the grounds of judicial intervention that two different questions may arise. First, whether the interventions have been so pointed or so extensive that it can be said that the trial process has miscarried. Secondly, whether in the circumstances of the case the conduct of the trial judge may have led to a reasonable perception by one or other of the parties, or an objective observer, that justice had not been done. Both these aspects of the problem are referred to, although in slightly different contexts, in the judgment of Kirby ACJ in Galea v Galea, [1990] 19 NSWLR 263, at 280-282. His Honour sets out six guidelines to the proper determination of an appeal upon the grounds of excessive judicial intervention of which grounds 3 and 4 are presently of greatest importance and relate to the first question which arises. Those guidelines were as follows: "3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion': see Sir Robert Megarry, "Temptations of the Bench' (1978) 16 14 UNREPORTED JUDGMENTS Alta L Rev 406 at 409; see also U Gautier, 'Judicial Discretion to Intervene in the Course of the Trial' (1980) 23 Crim LQ 88 at 95-96 and cases there cited. 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR I at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Ptl) (NSW) 427; [1970] 1 NSWLR 654." Although his Honour did not refer to the fundamental principle that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" (Rex v Sussex Justices [1924] 1 KB 259), he cited a passage from the judgment of Owen J in Tousek v Bernat (1959) 61 SR 203, at 209, in which his Honour said: "Tt is most unfortunate that his Honour should have taken the course which he did and thus left one of the parties and his legal advisers with the feeling that there has not been a fair trial of the action." As Kirby ACJ pointed out but for the fact that the appeal from the District Court in those days was limited to errors in point of law the Full Court would have ordered a new trial in Tousek. The context in which the question whether the trial judge's examination of RH was excessive to such an extent that a new trial should be ordered includes the judgment itself and we will now turn to it. In his reasons his Honour accepted the views as to RH's present state of health and fitness expressed by Dr Bodell, a doctor qualified by the respondent, relating to an examination on 12 June 1991. The doctor thought that RH's complaints were unsupported by objective abnormality and said that he would have expected that this type of injury should have resolved within 18 months to two years. He did say, however, that she had some mild tenderness in the chest wall. Having accepted that evidence the trial judge went on to say that in the light of Dr Bodell's opinion he did not accept the views about her earlier state of health and fitness as expressed by Drs Assaad and Salama. The statement is equivocal. Both doctors gave two reports, the first, within eighteen months of the accident and the second in late 1990. Dr Bodell's opinion could not possibly have had any impact upon the conclusions expressed by the doctors in their earlier reports although it is fair to say that his expectation that the symptoms should have settled down within two years was not borne out by those doctors' findings in 1990. It is possible, therefore, to read the judgment as rejecting the opinions of the doctors expressed in 1990. Nonetheless this part of the judgment is quite unclear. His Honour then proceeded to consider the question of prognoses and said: "The plaintiff herself, by her demeanour in court, and by what I regard as her gross overstatement of her injuries and disabilities has made it very difficult for me to assess what she is entitled to receive by way of damages. In the witness box she was evasive and she had exceptionally convenient lapses of memory". Then, and we do not propose to go into the full detail of what followed, his Honour said that, WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMEB HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) "Tn the light of the hospital discharge details I find that she would have needed no more than two visits to doctor Assaad, that she had no need to be referred to a specialist and that the physiotherapy, likewise, has been unnecessary servicing." Having said that and dealt with out-of-pocket expenses his Honour said that in view of the minimal nature of the injuries he would award $1,000 by way of general damages. It is enlightening to refer to the hospital report upon which his Honour relied in rejecting the substance of RH's case. In that report it is said that she complained of pain in the right arm and chest. On full examination no abnormality was found. No external abrasion or bruise was seen and no fracture suspected. She was discharged home. For our part we fail to see how this evidentiary material provided any support for a finding on the extent and continuing nature of the soft tissue injuries of which all the doctors spoke. What is clear is that his Honour was very critical of her demeanour in court and that the damages awarded were almost contemptuous. It is in the context of those ultimate findings that we approach the first ground of appeal. In Galea, Kirby P accepted that the appropriate test to apply was: "Whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair". (EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146, at 153). Leaving to one side the question of perceived unfairness, we would respectfully adopt the same test. In broad outline his Honour intervened on at least four separate occasions and subjected RH to lengthy questioning on a number of matters, many of which were, at best peripheral, at worst quite irrelevant. In addition he took the almost unprecedented course of having her recalled for a lengthy inquisition by him, primarily on the subject of her consultation with Dr Salama with particular emphasis on the history which she gave of the car accident. Although it could not be said that his Honour demonstrated that he had reached a conclusion adverse to RH during his questioning equally it is clear that at some stages he was dissatisfied with her evidence (eg her evidence about the interpreter masking persons sitting in court) and that at others he was actively cross-examining her (eg he is your flesh and blood), at times on singularly unimportant matters (eg Do you know either of those two women who have just come into court now?). On the whole we are unable to come to any other conclusion than that his Honour was unduly suspicious of RH's evidence from an early stage of her cross-examination and that this led to a far greater judicial intervention in the trial than was permissible. Whether his Honour's reaction to RH's evidence was coloured by the view he had taken of MH or whether there was something about her demeanour which attracted his Honour's disapproval it is impossible to say. Whatever the reason his Honour elected to intervene in her examination to a very great degree (his examination occupied about 9 pages of transcript whereas the whole cross-examination (including the judge's questioning) occupied about 22 pages) and he reflected, during that examination a significant scepticism of RH's evidence. At times his Honour appeared to be troubled by the fact that RH was smiling. At others he persisted in a line of questioning when it was obvious that RH was confused. Witnesses often suffer from confusion in the witness box particularly when, as in the present case, the witness is a migrant who is giving evidence 16 UNREPORTED JUDGMENTS through an interpreter. Such a witness, who either does not understand the language or, if she does, has an imperfect understanding of it, suffers a considerable disadvantage in a court of law in which proceedings are conducted in the English language. Obviously this circumstance places a significant burden on a trial judge, which can be increased when, as sometimes happens, the interpreter may speak a different dialect than the witness or be under some difficulty in communicating in English the precise message conveyed by the witness in another language. Where these possibilities exist the need for the judge to recognise when a witness is confused and to take appropriate steps to remedy the situation make it important that the judge minimise his or her intervention in the questioning of the witness. Otherwise there is a very real danger that he or she will fail to recognise confusion when it arises or, worse, may actually distract the witness by his or her interventions. In these circumstances it is timely to recall what this Court said in Goven7ment Insurance Office of NSW v Golby (NSW Court of Appeal, 15 April, 1992, unreported). The relevant passage reads: "The system of administration of justice in this State is an adversarial one. The case of each party is presented by its counsel who examines and re-examines the witnesses which that party desires to call and who cross-examines the witnesses called by other parties. It is counsel who determines who shall be called as witnesses and in what order those persons will be called. It is counsel who determines what issues should be raised and what arguments should be advanced in support of each of those issues. It is counsel who decides what questions should be asked in examination and in cross-examination, what topics should be covered in an opening and closing address and what points of law should be raised. In all these respects counsel exercises an independent judgment. There is nothing controversial about any of these statements. They are well established and were recently re-stated by Mason CJ, in another context, in Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543, 556. The judge sits to hear and decide the case. It is no part of the function of a judge, as a general rule, to present the case of any party nor should a judge ever seek to destroy the case of a particular party either by seeking to elicit particular evidence from a witness or witnesses who are called or by seeking to destroy other witnesses by cross-examination. Although it may be that where a party appears in person a judge may ask questions in order to assist the party to present his or her case the circumstances in which this might occur would be limited and there could be no occasion on which a judge should seek to destroy the case of any party appearing before him or her. This does not mean that a judge is required to remain silent during the hearing of a case. Matters may arise which require clarification and it would be idle to suggest that a judge should not seek to clarify those matters. Again counsel may have failed to deal with a particular issue, obviously as a result of oversight, and there is no reason why a judge should not remind counsel of the matter which has been overlooked. These are but examples of occasions on which a judge may feel that it is desirable to intervene and it is clear that a judge's intervention may be required on numerous other occasions. Two other observations should be made concerning judicial intervention during a trial. The first concerns the need for a judge to resist the temptation to prejudge the issues before the evidence is complete and the addresses are concluded. Although judges will undoubtedly form tentative views at various WRSEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke, Handley and Sheller JJA) stages during the trial it is imperative that they keep an open mind until the conclusion of the trial. For instance, it would be wrong for a judge to decide at the end of the evidence of a witness that that evidence should be accepted. That is because other evidence may emerge which undermines, or raises questions concerning, the evidence given by the witness. Of course, pre judgment can be conscious or sub-conscious. Where a judge intervenes to a considerable extent during the examination or cross-examination of a witness there is a danger that the judge's objectivity will be sub-consciously impaired (Yuill v Yuill 1945 P 15 at 20). The need to avoid that risk is a compelling reason for limiting intervention during the examination and cross-examination of a witness." That is not to say judges are expected to sit silently and listen to all of the evidence in a case without some intervention. We are not aware that that was ever the expectation of litigants. If it was it certainly is not now and we would respectfully agree with the following passage from the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly, (1989) 167 CLR 568, to the following effect: "We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated." In this case the judicial intervention was extensive and included the recall of RH after she had concluded her evidence for further questioning. The questioning which then occurred was not, in our opinion, restricted to clarifying evidence that RH had given but extended to a close examination, rather in the manner of cross-examination, of the witness of topics which in some cases had not been touched or explored by the cross-examiner. The subject matter of the questioning on RH's recall is a good example of the trial judge's interrogation on a matter which had not been mentioned in the cross-examination. Although we are confident that the judge believed that he was maintaining his objectivity the nature and extent of his questioning raises a question in our minds whether that objectivity had not been sub-consciously impaired. That doubt is increased by the circumstance that RH's son had testified prior to her giving evidence, that his Honour had formed an extremely adverse view of her son, that the judge approached the issue of liability in a manner which indicated great suspicion about all aspects of RH's claim, including liability which was relatively clear and that after the extensive questioning his Honour made highly critical observations about RH's credibility which undoubtedly resulted, in part if not substantially, from his Honour's observations during his own questioning. In all these circumstances we have regrettably concluded that by intervening in RH's examination to the extent which he did his Honour created a real risk of unfairness in the trial. Accordingly, the appeal should be allowed. We would add that we would also allow the appeal, for the reasons already given, on the ground that the judicial questioning would have created a reasonable apprehension in the mind of an objective observer, and RH herself, that she had not had a fair trial. However, in the circumstances it is unnecessary to say any more about that. The following orders should be made: (1) Appeal allowed; UNREPORTED JUDGMENTS (2) The judgment of Mahoney DCJ be set aside except as to liability; (3) The proceedings remitted to the District Court for a new trial on the issue of damages; (4) The respondent to pay the appellants' costs of the appeal and is, if qualified, 5 to have a certificate under the Suitors Fund Act; and (5) The costs of the first trial to be in the discretion of the judge in the second trial. Mohammed Hejazi q) (2) (3) (4) (5) Appeal allowed; Judgment of Mahoney DCJ, except as to liability, is set aside and the matter remitted to the District Court for a new trial; The respondent should pay MH's costs of the appeal and is, if qualified, to have a certificate under the Suitors Fund Act 1951; and Costs of the first trial to be reserved for decision by the trial judge in the second trial. Rifekah Hejazi (1) Appeal allowed; (2) The judgment of Mahoney DCJ be set aside except as to liability; (3) The proceedings remitted to the District Court for a new trial on the issue of damages; (4) The respondent to pay the appellants' costs of the appeal and is, if qualified, to have a certificate under the Suitors Fund Act; and The costs of the first trial to be in the discretion of the judge in the second trial. Counsel for the Appellant: P M Hall QC and H J Halligan Solicitors for the Appellant: Michael E Bradstreet Counsel for the Respondent: H G Shore Solicitors for the Respondent: G M Meadows