FURNEAU v VAUGHAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and COLE JJA 13 March 1995, 13 March 1995 [1995] NSWCA 158 FINDING TRIAL JUDGE INCORRECT ON EVIDENCE FACTS: Appellant appealed on quantum. HELD (1) The finding of trial judge was based on an incorrect interpretation of the evidence. Meagher JA Mr Louis Eugene Furneau was injured in an accident caused by the defendant's negligence on 16 September 1988. His Honour Judge Phelan awarded him a modest verdict of $22,400. In the circumstances of this case this seemed a smallish amount and hence there has been an appeal by the plaintiff. The explanation of the verdict is that at his trial the plaintiff complained of pain in the lower back caused by the accident and his Honour disbelieved him. His Honour held that there was no such complaint at the time. He also held that the plaintiff's credibility was diminished by pretending to have made such a complaint when he had not done so. There may be no doubt what his Honour found. On one occasion he said there is no note of pain in the lower back. He says the same thing several times. Unfortunately, his Honour was quite wrong. At the date of the accident, the plaintiff saw Dr Coomeran and on the evidence the doctor said the plaintiff did complain of pain in the lower back at the time of the accident and his contemporaneous notes say the same thing. We are, therefore, confronted with a situation where his Honour's main reason for holding that there was no injury to the lower back was wrong. His Honour's main reason for disbelieving the plaintiff was wrong. Mr Shore for the defendant sought to extricate his client from the consequences of those facts by arguing that his Honour's admitted error could be viewed as ultimately irrelevant to the conclusion at which his Honour arrived. In my view, he was not successful in this effort. In my view the following orders should be made: 1. Appeal allowed with costs. 2. Judgment and verdict appealed from set aside. 2. New trial limited to damages. 4. Respondent to have certificate under the Suitors Fund Act. Mahoney JA I agree with the judgment proposed by Meagher JA. Looking at the notes of the doctor made on the day of the accident or in relation to what occurred on the day of the accident, I have had difficulty deciphering what has been said but it is accepted by the parties, and in my opinion correctly, that on the particular day there was complaint of lumbar pain and there was an indication that the Judge may have been misled by the doctor's handwriting. I do not know. 2 UNREPORTED JUDGMENTS In view of the error, which I agree with Meagher JA went to the heart of the reasons why a Judge disbelieved the plaintiff that he felt it was a substantial reason prompting him to disbelieve him, I do not think there is any alternative for the order which has been proposed. Cole JA I also agree. In Devries v Australian National Railways Commission (1992) 177 CLR 472 at 479, Justices Brennan, Gaudron and McHugh said: "If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless...... has acted on evidence which was 'inconsistent with facts incontrovertibly established by the facts." His Honour rejected the plaintiff appellant's claim for damages for low back injury. In part that was because he did not accept the appellant's finding that there had been no complaint of such injury on the day of the accident. There clearly was incontrovertibly established the fact that the appellant did complain to his doctor of pain in the lumbar region on the day of the accident and his doctor recorded it by expressing in his notes the notation, "complaint of pain over the lumbar region," and indicating by a diagram the lumbar region as being the area of complaint of pain. In those circumstances, I agree that there must be a new trial. Mahoney JA: The order will therefore be the orders proposed by Meagher JA. (1) Appeal allowed with costs. (2) Judgment and verdict appealed from set aside. (3) New trial limited to damages. (4) Respondent to have a certificate under the Suitors Fund Act, 1951. Counsel for the Appellant: PM DONOHUE QC/N DELANEY Instructed by: FRISINA AND ASSOC Counsel for the Respondent: HG SHORE Instructed by: GM MEADOWS