INNAIMO v GOVERNMENT INSURANCE OFFICE OF SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA and CLARKE JA 7 March 1995 [1995] NSWCA 207 CHALLENGE TO TRIAL JUDGE'S ADVERSE FINDING ON CREDIBILITY Clarke JA. This is an appeal from a judgment of Judge Craigie in which he directed entry of judgment in favour of the plaintiff, who is the present appellant, in the sum of $10,945. The appellant's claim arose out of a motor vehicle accident which occurred on 4 December 1986. In the court below the appellant contended that he had suffered from continued serious back problems as a result of that accident and he sought a large award of compensation. His Honour did not accept the appellant as a witness of credit or a sound historian and in addition he formed an adverse view of Dr Robson who gave evidence supporting the appellant's case. Consequently he preferred the evidence contained in the reports of three doctors who had seen the appellant on behalf of the respondent and did not make the large award of compensation which the appellant sought. The primary challenge in the appeal concerns the judge's rejection of Dr Robson's evidence. It was put that his Honour formed an adverse view of the doctor's conduct for reasons which were not substantial and it was also said that such a view could only have been formed as a result of the trial judge's failure to understand the significance, from an evidentiary point of view, of a myelogram report dated 23 July 1993 and a magnetic resonance scan report dated somewhat later. In order to understand the submissions it is necessary to say something shortly about the time following the accident. On the day after the accident the appellant attended Queanbeyan Hospital out-patients. That was his first attendance at which he sought medical assistance. The hospital report stated as follows: He stated that he felt numb and sore all over and complained of slight neck injury. However, on examination he had full active movement and was sent home to the care of his own doctor having been prescribed analgesia for his discomfort. He missed no time from his employment as a result of the supposed injury, that employment being as a sub-contractor painter, and continued working on until 8 January. On 15 December 1986 he consulted his general practitioner, Dr Griffiths, complaining of back pain and in a later report of 3 May 1988 the doctor indicated he was seen on numerous occasions after this and he continued to suffer pain on spinal extension. The doctor also reported on an x-ray which had been taken. Counsel for the appellant says this had been taken in 1987, and the doctor formed the view that that x-ray of his lumbo-sacral spine showed no fracture or bony abnormality. I interpose the observation that the appellant commenced the proceedings within three months of the accident, although his Honour does not appear to have treated this as a matter of consequence. 2 UNREPORTED JUDGMENTS He was, however, seen by Dr Wright on behalf of the appellant because the proceedings had been brought early and that occurred in September 1987. Dr Wright then saw an x-ray of the lumbo-sacral spine dated 18 February 1987 but does not seem to think that there was anything demonstrated in that x-ray to indicate the situation was other than normal. His view accorded with that of Dr Griffiths and, as later appeared, with the view of the treating orthopaedic surgeon, Dr Kitchin, whose report was not tendered by the appellant. Dr Wright concluded that the appellant may have suffered a jarring musculo-ligamentous injury in the accident but thought that by September 1987 there was no objective abnormality in any region. He also thought that the appellant was not genuine in his presentation of the history, was frequently inconsistent and that there were gross inconsistencies in his responses to examination. On 16 December Dr Robson, neurosurgeon, who saw the appellant at the request of Dr Kitchin, reported to Dr Kitchin and in his report commented on the x-rays, which I assume are the same as those the subject of comments by the other two doctors, and said that they indicated a narrow L3/4 lumbar disc space and some indentations suggestive of Scheuermann's disorder. In his evidence Dr Robson said that he did not agree with Dr Kitchin's view that those x-rays did not reveal any abnormality. Following the end of 1987 or early 1988 the appellant does not seem to have consulted doctors and he next saw Dr Robson five years later in 1992. It was that visit when the appellant said, 'and he has had back trouble ever since 1987' that led Dr Robson to have the myelogram and MR scan carried out. I should add that there were reports from two other doctors who saw the appellant on behalf of the respondent whose views did not accord in general with Dr Robson's view, which was that in the light of the objective signs shown up by the scan in particular and the myelogram, and accepting the history of continuous pain given by the appellant, there was an explanation for this continuing pain which was probably caused in the accident. As I understand his evidence he thought that the accident may have aggravated an underlying degenerative condition. I return then to consider the submission that his Honour should not have formed an adverse view of the credit of Dr Robson. The reason given by his Honour was that the doctor had been, in a real sense, less than candid with the court and had failed to demonstrate the degree of impartiality which enabled him to rely upon the doctor. What underlay this conclusion was the failure of Dr Robson to produce, in answer to a subpoena directed to him, a report, Exhibit 5, being a report from a social worker at Queanbeyan Hospital and Area Health Service dated March 1988 relating to the appellant. It would seem that the doctor thought that the appellant had some social problems when he saw him in 1987 and that he introduced the social worker at Queanbeyan Hospital to the family of the appellant. In any event, when subpoenaed the doctor did not produce this report which only came to light when counsel called for all the doctor's papers during his cross-examination. It then appeared that the doctor had the report to which I have made reference and he was closely questioned as to why he had not produced it in answer to the subpoena. The trial judge formed the view that his answers were not entirely consistent and that the proper conclusion to be drawn from his conduct and the manner with which he sought to explain that conduct was that he was not being entirely frank with the court or demonstrating the impartiality which was requisite in a doctor giving evidence on behalf of a party. URJNNAIMO v GOVERNMENT INSURANCE OFFICE OF SOUTH WALES (Clarke JA) 3 The reasons given by his Honour would seem to justify his Honour's conclusion and having regard to the fact that his Honour had a distinct position of advantage in witnessing the doctor give his explanations, the task undertaken by the appellant in seeking that this Court reverse the judge's finding on credibility is a daunting one indeed. However, counsel sought to meet the test by contending that his Honour's failure to understand the importance of the objective evidence revealed in the myelogram and MR scan and an earlier x-ray demonstrated the error which entitled a court to set aside the findings on credibility. Alternatively he submitted that the objectively ascertained facts were strongly inconsistent with the judge's view on credibility and that it could no longer stand. While the submissions were put with great earnestness and thoroughness I am unable to accept them. This Court has held in Ahmedi v Ahmedi ((1991) 23 NSWLR 288) that the principles expounded by the High Court in such cases as Abalos and Devries applies also to the evidence of an expert witness. The Court is only entitled to reverse a finding on credibility in respect of a witness, whether expert or not, if the evidence rejected is supported by incontrovertible objective evidence or if the ultimate conclusion is glaringly improbable. I am unable to say that the judge reached a conclusion which could be described as 'glaringly improbable', nor am I able to say that there was 'incontrovertible objective evidence' which required the judge to accept the doctor's evidence. Indeed, there was a conflict of medical evidence on almost all issues except on the actual results of the MR scan and myelogram and the reason for that was that none of the other doctors had the advantage of seeing them. Nonetheless Dr Robson's interpretation of the first x-ray was contested by at least two doctors and it cannot be said that the objective evidence demonstrated by the myelogram and MR scan required that the judge come to the conclusion that the doctor's evidence should be accepted. Even if, however, I be wrong in that conclusion it does not seem to me that theappellant would be entitled to succeed. Dr Robson at all times made it quite clear that his opinion was based on complete acceptance of the history given by the appellant. The trial judge simply did not accept the appellant as a credible witness or as a sound historian. He took the view that the appellant was a person on whose word the court could not rely. There were many reasons which led the trial judge to that conclusion and they seem to me to be very sound reasons. He presented, according to the trial judge, as an unreliable witness. Once it is appreciated that he was not accepted as a sound historian and that his word was unreliable it seems to me that the fundamental basis of Dr Robson's opinion disappears. The history that was given was not reliable and in so far as the doctor completely accepted it, his ultimate opinion fell to the ground. Accordingly, even if I be mistaken as to my view of Dr Robson's acceptability, that would not get the appellant home. Counsel for the appellant valiantly tried to set aside his Honour's finding as to the credibility of the appellant upon the same grounds, that is the objective indications and the two tests carried out by Dr Robson. I, for my part, do not think that those results bear on the decision by the trial judge to reject the appellant as a witness, nor do I think that the grounds advanced satisfy the tests which need to be satisfied before this Court is entitled to interfere with the credibility finding. In the circumstances I am not persuaded that either credibility finding should be set aside in this Court. Those being the only challenges to the judgment under appeal, it follows that the appeal should be dismissed with costs. 4 UNREPORTED JUDGMENTS Mahoney JA. I agree with the judgment of Mr Justice Clarke and the orders he proposes. In deference to the argument of Mr Milden and because of the observations made by the trial judge in relation to Dr Robson I shall add some brief observations of my own. The essential case, at least the substantial case which was advanced based upon the evidence of Dr Robson for the plaintiff was that the tests of 1992 showed what x-rays had not shown, namely that the plaintiff had a degenerative condition in his back and (this is the crux, I think, of Dr Robson's evidence) that because he suffered pain in his back from the time of the accident, namely 4 December 1986, and from time to time, the result of the accident was to exacerbate and throw up symptoms from the degenerative back whichwould not or may well not have otherwise appeared. It may be accepted that the tests of 1992 show, as Mr Justice Clarke has pointed out, the condition of the back to which Dr Robson referred. But in the end the question to be determined was whether the accident of December 1986 had so played upon that condition of the back, assuming it to be then existing, as to throw up the symptoms of which the plaintiff complained. The judge accepted that there were some symptoms, but the view he took was that they did not continue as the plaintiff complained. Dr Robson was of the opinion that if the plaintiff's evidence be accepted, and he accepted the plaintiffs evidence for reasons which appeared to him sufficient, then the exacerbation of the bad back should be accepted. But there was other material which suggested a contrary view. As Mr Justice Clarke has said, first, the judge did not accept the plaintiff as a witness of truth and therefore had significant doubts as to whether he had suffered the back pain of which he complained from the time of the accident in 1986 and at relevant times thereafter. Secondly, the judge had in evidence, and I take only this example, the two reports of Dr Wright of 4 December 1987 and the subsequent report of 15 May 1989. In each of those reports the doctor noted that the plaintiff had complained of pain in the lower back but his examination of the condition of the plaintiff, and in particular his assessment of what he then could and did do, was such that he doubted the genuineness of the complaint of back pain. On examination and as a result of what he saw the plaintiff doing, he concluded that there was no abnormality such as would give rise to the pain condition. I take, by way of example, what was said in the report of 4 December 1987. He thought that the plaintiff was not genuine in his presentation of his history. The situation then was that the judge had both his own view of the credibility of the plaintiff and evidence of what was seen and assessed by Dr Wright on two occasions, in 1987 and again in 1989, against which to judge whether the complaints of pain in the back, which were made by the plaintiff, were either genuine or accurate. In the end his Honour came to the view that he was simply not convinced to the necessary extent that as a result of the accident the plaintiff had suffered the symptoms on which his case in this regard depended. It was upon this basis, I think, that the learnedjudge held that he was not satisfied and did not find for the plaintiff. That is, he did not accept the kind of case which the plaintiff put forward. This, I think, does not mean that, in the blunt or simple sense, he disbelieved Dr Robson. I think he was left with doubts as to the impartiality of the doctor and therefore approached with scepticism the question whether the pain of which the plaintiff complained existed or existed to the extent that it URNNAIMO v GOVERNMENT INSURANCE OFFICE OF SOUTH WALES (Mahoney JA) 5 supported the diagnosis of Dr Robson, namely, that the injury had exacerbated the inherent back condition to cause the pain of which the plaintiff contended. In my opinion, in all the circumstances, the decision of the learned judge was right. In any event, I do not think that on the material before the court this Court can or should intervene. I agree with the orders which have been proposed. Orders accordingly. Counsel for the appellant: R MILDREN Solicitors for the appellant! VANDENBERG REID Counsel for the respondent: S MODDER (Solr) Solicitors for the respondent: SOLICITOR FOR THE GIO