BYRNES v SARKISSIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 5 December 1995, 5 December 1995 [1995] NSWCA 66 MOTOR ACCIDENTS ACT s79 — PERSONAL INJURIES — ASSESSMENT OF DAMAGES CREDIBILITY OF WITNESS MOTOR ACCIDENTS ACT s79 — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — CREDIBILITY OF WITNESS — plaintiff injured in motor vehicle accident — plaintiff tenders psychiatric report stating she suffers from psychiatric disorder — no psychiatric report tendered by defendant — trial judge finds plaintiff is exaggerating her symptoms — considering all relevant factors, trial judge assesses plaintiff's non-economic loss at 18% of a most extreme case. Defendant appeals arguing 1. no evidence that plaintiff had adjustment disorder at the time of the trial; 2. if there was some evidence, it did not justify trial judge's conclusion. Held: no error by trial judge - on the material the trial judge's conclusions were open to him - where trial judge has reservations about plaintiff's evidence it does not follow that the trial judge must be taken to have disbelieved everything the plaintiff said. Plaintiff cross-appeals against assessment for economic loss Held: plausible for trial judge to find that adjustment disorder would not affect plaintiff's earning capacity in any material way. ORDERS Appeal dismissed with costs; cross-appeal dismissed with costs. Priestley JA This appeal concerns a judgment in the District Court in the sum of $25,233. It has excited both an appeal and a cross-appeal. It arises from the following circumstances: Mr D Sarkissian was driving to work with his wife, Mrs S Sarkissian, as his passenger, when their vehicle was hit from behind. They both brought actions for damages for personal injury in the District Court. These were heard together by his Honour Judge McLachlan but it is only with Mrs Sarkissian's case that this Court is concerned today. In her case Judge McLachlan held she was entitled to judgment against the defendant and assessed the damages at $25,397. $164 of that amount had already been paid which accounts for the slight difference in the amount of the judgment and the assessment of damage. The defendant has appealed against that judgment. In the appeal, liability is not disputed but certain aspects of the trial judge's assessment of damages are said to show error. The assessment figure of $25,397 was made up of $21,460 for non economic loss, $3,000 for economic loss and $937 for out of pocket expenses. The first of these figures is the subject of the appeal. The second is the subject of the cross-appeal. The trial judge reached his figure after: 1. consideration of the medical evidence; 2. taking into account his opinion that Mrs Sarkissian was careless with the truth and was exaggerating her symptoms; 3. had some sort of adjustment disorder; 4. had some continuing but minimal neck pain; and 5. concluding, putting all things together, that Mrs Sarkissian fulfilled the threshold requirements of s79 of the Motor Accidents Act. 2 UNREPORTED JUDGMENTS He assessed the severity of Mrs Sarkissian's non economic loss as 18 per cent of a most extreme case. The machinery of s79 then resulted in the figure of $21,460 previously mentioned. The appellant/defendant put forward what in the end could be seen as really one primary reason for saying the judge was wrong in reaching his 18 per cent figure. It was submitted that there was either no evidence that Mrs Sarkissian had an adjustment disorder at the time of the trial, or if there was some evidence, that it did not justify the trial judge's conclusion. It was also suggested that if the conclusion of an existing adjustment disorder at the date of trial was justified, the judge should not have found that it was causally connected with the accident. That last argument appeared in me written submissions and I take it, was adhered to in the oral argument, although no particular attention was paid to it in the way the argument went. What I have referred to so far constitutes what seems to me to be the real ground of appeal in this case; if that contention in one of its forms were accepted, then there would be a further argument that the other matters of physical problems consequent on the accident which would remain for consideration if the adjustment disorder were left out of account, would not warrant the finding that the severity of Mrs Sarkissian's non economic loss was 18 per cent of that of a most extreme case. That consideration does not arise in substance if the argument which I have described as the main argument, does not succeed. That argument centred on a paragraph in his Honour's reasons in the following terms: "However, the defendant has not served a report from a psychiatrist and the plaintiff has - a report dated 22 November 1993 from Dr Grady. I have read his report again. I do not have much option other than to accept his opinion although regard should be had to my finding that the plaintiff exaggerates. I must accept that she has some sort of an adjustment disorder although the extent to which the accident contributed is no doubt a matter of conjecture. I see that he said on 22 November 1993 that the plaintiff should continue to improve." For the appellant it was submitted that his Honour was wrong in saying that he did not have much option other than to accept the report from Dr Grady, a psychiatrist, which report had been tendered in evidence. Dr Grady had not been asked to attend the court to give oral evidence. As the judge remarked, no report from a psychiatrist was tendered before the court on behalf of the defendant/appellant. The submission was that when Dr Grady's report was read, it could not found a conclusion of a continuing adjustment disability or disorder. At the most it showed there had been an adjustment disorder at the time of the report of 22 November 1993, whereas the trial was being conducted in April of 1995. There were other criticisms of his Honour's finding stemming from the same paragraph. It was submitted that involved in Dr Grady's report were matters of fact about which the trial judge must be taken to have had reservations in view of his findings of the plaintiffs proneness to exaggeration and her freedom with the truth. It was also submitted that since Dr Grady had said that the plaintiff's condition appeared to be improving, it could not then be accepted by the judge that it was still at a significant stage at the time of the trial. In my opinion these criticisms do not amount to a strong enough argument to warrant the court in forming some other opinion concerning the adjustment disorder from that which the judge arrived at. He clearly had in mind at the time of making the disputed finding, his own views concerning the plaintiff's URJ BYRNES v SARKISSIAN (Priestley JA) 3 credibility. He also had in mind, because he actually set it out in the paragraph Ihave quoted above, that Dr Grady had said that the plaintiff would improve, but the conclusion that he arrived was one in which his own impression of the plaintiff had to play a very considerable part. As he made plain in various parts of his reasons, he did not have full confidence in the plaintiff's evidence. It does not follow from that, that he must be taken to have disbelieved everything she said. The impression a trial judge forms of a plaintiff, particularly in a case of this kind, must be made up of quite a complicated set of reactions to the evidence before him and the impression made upon him by the plaintiff. A wide range of combinations is possible. A judge may well think that an exaggerating plaintiff is more prone to exaggerate in respect of some parts of the evidence than others; that exaggeration of symptoms may be more deliberate in some parts of the evidence than others. It is very difficult for one person to record the complex of impressions which a plaintiff will cause that observing person to have, in written reasons. It is considerations of this sort which have led to the longstanding practice of appellate courts not ordinarily interfering with factual decisions of first instance courts in which an assessment of the reliability or credibility of witnesses is concerned. This particular finding seems to me to be pre-eminently one of those. There was material in my opinion upon which the judge could arrive at the decision on which he arrived and his conclusions do not give me any feeling that he has misused his position of advantage as a first instance judge, in arriving at them. In my opinion the court should not interfere with the conclusions stated in the paragraph that I have earlier set out. Once that conclusion is reached, it is really the end of the defendant's appeal. A further submission was put, that even if the court were to reach the conclusion that I have expressed, nevertheless the aggregation of matters including the judge's finding of an adjustment disorder, should not have led to an assessment of 18 per cent in connection with s79. It was pointed out that the judge had said that the plaintiff only exceeded the threshold in terms of s79 by a not wide margin and it was then said that 18 per cent did not fit in very well with that submission. In my opinion the discrepancy is not enough to warrant the criticism that is being made. The conclusion therefore is that no reason for interfering with the trial judge's conclusion as to his assessment of damage has been made out by the defendant/appellant. I would therefore be of the view that the appeal should be dismissed. The plaintiff maintained a cross-appeal in which it was submitted that the figure for economic loss should have been of the order of $12,000. This contention depended upon this Court's accepting that necessarily involved in the trial judge's findings of fact, was the proposition that the plaintiff had had a diminution of her capacity to earn as a result of the accident. One way in which this argument was supported was that the judge's finding of the 18 per cent assessment in regard to s79, really entailed the further conclusion that there had been some diminution of future economic capacity. A somewhat more subtle argument which was put quite vigorously on behalf of the plaintiff/cross-appellant was that when the cross-examination of the plaintiff at the trial was carefully read, it could be seen that it was implicit in the cross-examination that the defendant was accepting that some degree of disability in the economic sense had been suffered by the plaintiff as a result of the accident. 4 UNREPORTED JUDGMENTS I do not think that either of these arguments should be accepted. As to the first, I do not see any necessary inconsistency between his Honour's finding in regard to non economic loss, and his further conclusion that he had not been persuaded on the balance of probabilities that the plaintiff had incurred any continuing economic loss or would in the future. Given the particular matters that he took into account in arriving at his conclusion concerning non economic loss, it seems to me quite plausible for him to have had in mind that notwithstanding his views on that matter, the plaintiff's ability to work had not been affected in any material way, bearing in mind his views concerning the credibility and reliability of the plaintiff. As to the second matter based on what was submitted emerged as having been common ground at the trial, I do not read the transcript in the same way as counsel urged the court to do. On looking through the cross-examination of the plaintiff, I do not think that it is a sound conclusion that there was any implicit acceptance of anything asserted by the plaintiff by reason of the form of questioning. The cross-examiner and the plaintiff appear to have been at issue on a number of things and it seems to me improbable that the cross-examiner had in mind making any implicit concession to the plaintiff and whether or not he had some such notion in his mind, I do not think it appears in words that were used in the cross-examination. I therefore think that the cross-appeal should also be dismissed. The orders I would propose therefore are that the appeal should be dismissed with costs and that the cross-appeal should be dismissed with costs. Cole JA I agree. Appeal dismissed with costs; cross-appeal dismissed with costs. COUNSEL: Appellant: ML WILLIAMS Respondent: AJ LESLIE QC/C LOCKE SOLICITORS: Appellant: ABBOTT TOUT Respondent: DAVID VELLELEY