SILVA v TURNER CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and MEAGHER JJA 29 March 1995, 29 March 1995 [1995] NSWCA 426 FINDING OF CREDIBILITY BASED ON EVIDENCE — MISTAKE FACTS: Appeal from trial judge's findings on credibility based on evidence and consequent award of damages on quantum. HELD: (1) His Honour made such findings as were available to him on the evidence and in these circumstances his findings cannot be disturbed. ORDERS: (1) Appeal dismissed with costs. Meagher JA The appellant, and the plaintiff, obtained a verdict from Sackville AJ, for the amount of $11,560. He had been a rigger who had the terrible experience of falling four floors in a building, and almost miraculously escaping very serious injury. He, nonetheless, claimed before his Honour that he was then permanently incapacitated, had been incapacitated since the accident, and apparently would be in the future. Unfortunately, his Honour did not believe him or his witnesses, or his medical experts. His Honour found that the plaintiff did not give credible evidence; that he sought to maximise the physical consequences of the accident; he exaggerated his symptoms; that he postured in court; overstated and exaggerated his claim for discomfort; that he tailored his evidence to advance his case; that he was not to be believed in his denial of capacities; and that his evidence was contradicted by certain films which had been made of him. The defendant's doctors, on the other hand, were of the view that whilst his disabilities were real, they were far from being total and he was at the time of trial, and had been for some time before then, capable of sedentary and partly sedentary employment. As a matter of history, we know for some three years he had been a partner in the running of an art gallery. He was born in Chile, but could speak very good English, although he could not read and write it. He could, of course, read and write his native Spanish. His Honour found that the disabilities that the plaintiff suffered prior to the trial could be stated in this case that he suffered permanent loss of function in his right shoulder to the extent of 25 per cent; he suffered at that time frequent pain in his back and left buttock; that the pain in his shoulder, back and buttock was aggravated by cold; and it was also aggravated by prolonged sitting or standing. His Honour found that the plaintiff could not engage in physically demanding sporting activities, and he could not take any job which required bending or lifting. He also said that a job which required incessant sitting or walking would be difficult. Nonetheless, having made those findings in favour of the plaintiff, his Honour also found, having seen and heard him, that his capacity was very considerable. It was difficult to demonstrate, by way of example, what jobs the plaintiff was 2 UNREPORTED JUDGMENTS capable of doing because the plaintiff, since the accident, had not sought to undertake any job of any description at all. So, his Honour was limited in the manner in which he could decide what the plaintiffs capacity was. What his Honour did decide was that for two years after the accident the plaintiff was incapable of any work at all. From that period until the date of trial he could have received, by his assertions, 90 per cent of the average weekly earnings. The amount he would have earned if he had remained a rigger were approximately $600 a week. The average amount of average weekly earnings was $500 a week. Ninety per cent of $500 is $450, so, from the period 1 January 1991 to 22 August 1994 his Honour awarded damages at the rate of $150 a week. As at the date of trial and for the future, his Honour found that the plaintiff had full capacity to earn as much as the average weekly earnings. His Honour did not imagine, of course, that the plaintiff could have been a rigger. At the date of trial a rigger's wages are $700 a week, and average weekly earnings at this stage was $560, so his Honour awarded the plaintiff, on the date of trial until age 50, compensation at the rate of $160, being the difference between those two sums. His Honour found, even if the action had not taken place, the plaintiff would not have worked beyond the age of 50. So, after the age of 50 his Honour awarded the sum of $25,000 to the plaintiff as a general cushion. Those are the findings which were challenged by Mr Dodd, in a very able argument for the appellant. Mr Dodd said it was not a question of challenging any findings based on a loss, but it was, in his submission, a case of his Honour making a clear mistake. In my view, no such clear mistake exists. His Honour saw the plaintiff, he heard and saw the medical evidence, he saw the films. Having found that the plaintiff could not be believed his Honour made such findings as were available to him on the medical evidence about what the plaintiff could do. In those circumstances, with some regret, I am of the view that his Honour's judgment cannot be disturbed. I would have proposed that the appeal be dismissed with costs. Priestley JA I agree. On the factual findings made by the trial judge, it seems to me that, looking at the judgment in a global way, the plaintiff was adequately compensated by the amount of damages awarded at trial. I stress, my opinion is based on the facts as found by the trial judge. In the appeal, cases in the line of authority in which Abalos figures, were acknowledged by the appellant's counsel as precluding any attack upon his Honour's basic factual conclusions. It was said, however, that, accepting all those conclusions, to arrive at the trial judge's assessment of past and future earning capacity was a plain mistake. The question was asked with some apparent force: how could it be said that a man with the continuing physical impairments acknowledged by his Honour have earning capacity to the degree which his Honour found? It does not seem to me that the answer to that question is that the trial judge made a plain mistake. On reading through his reasons you see that every issue in the case was dealt with by him very carefully, and that he gave reasons for every aspect of his conclusions about damages. Those reasons were grounded very firmly and very closely on what his Honour had seen of the plaintiff in the witness box, in the films, and by reference to all the medical evidence. On those materials it was open to the judge to conclude that the plaintiff for some years before the date of the trial, could, if he wished, have chosen to look for work. Also, based on what URJ SILVA v TURNER CORPORATION LTD (Priestley JA) 3 he saw, it was open to him to conclude, as he did, that the appellant's physical ability was such that he would have been able to find work, and would be able to find work in the future. The Court is not in a position, nor was it asked, to interfere with the factual basis on which the trial judge arrived at these conclusions. One other thing I should have mentioned was that the trial judge acknowledged that the appellant had suffered what was really an appalling accident. He showed, I think, sympathetic recognition of the effect that the recollection of the accident, and dwelling on the accident, may have had on the appellant's attitude to the type of damages he was entitled to. He took into account that and all the other relevant considerations when deciding what was the proper outcome of the factual findings that he made. There does not seem to be any error of reasoning in his Honour's statement of opinions.The inevitable result is that, notwithstanding the vigorous efforts by the appellant's counsel to persuade the Court that the judge had eventually somehow arrived at an unrealistic result, there is not really any lack of practicality or reality in the result, once it is appreciated how closely the result is bound up with the detailed findings of fact adverse to the full claim which the plaintiff was making that the judge has set out in his reasons. The order of the court, therefore, is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: JW DODD Solicitors for the appellant: HANCOCK ALLDIS Counsel for the respondent: P MORRIS Solicitors for the respondent! MORAY AND AGNEW