NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GLYNATSIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and COLE JJA 10 August 1995, 10 August 1995 [1995] NSWCA 335 PERSONAL INJURIES — ASSESSMENT OF CREDIBILITY OF WITNESSES PERSONAL INJURIES — assessment of credibility of witnesses — judge's observations of demeanour of party — plaintiff-respondent injured in car accident — trial judge awards damages on basis of brain damage — on appeal, defendant respondent challenges finding of brain damage on grounds that: (1) it was apparent at the trial that the plaintiff had made false statements to various doctors; (2) despite this the trial judge had accepted the plaintiff as genuine; (3) the trial judge breached the rule in Government Insurance Office v Bailey (1992) 27 NSWLR 304 by making observations of the demeanour of the plaintiff without affording counsel the opportunity of dealing with such observations (4) the trial judge had formed a medical opinion and conclusion which he was not himself competent to do. Held: the trial judge not in error appellant's first and second grounds fail because of misconception — the trial judge did not accept all the evidence given by the plaintiff as accurate — it was the body of evidence of the plaintiff's relatives and friends that the trial judge primarily relied upon: trial judge was not in breach of the rule in Bailey - his observation about the demeanour of the plaintiff in court was not the basis of his conclusion: there was nothing particularly medical in the judge's description of what it was that led him to come to ie conclusion that he did. ORDERS Orders dismissed with costs. Priestley JA The respondent to this appeal was awarded damages of $1,026,681 by his Honour Judge Christie of the District Court on 17 February 1995. The damages were for injuries and the consequences of injuries suffered by the respondent in a car accident which happened on 17 February 1981 when he was seventeen. The appeal, which has been brought by the New South Wales Insurance Ministerial Corporation, raises only the issue of the amount of the damages. In this court the appellant has not sought to contest liability or rely on contributory negligence. The respondent's case at trial was he was suffering from a combination of organic brain damage and psychiatric consequences. This was contested, it being asserted by the appellant that the respondent was deliberately feigning incompetence. The trial judge accepted the respondent's case. The written submissions filed for the appellant and respondent have been clear and helpful. They clarified the issue for this court to decide. The appellant made it clear that if the trial judge's finding of brain damage was to remain undisputed then his Honour's quantification of damages was appropriate. The oral submissions usefully supplemented the written ones. The efforts of counsel have contributed to the court being able to deliver judgment immediately. 2 UNREPORTED JUDGMENTS In most ways the case is like many which come before this court where there is a plaintiff claiming to suffer from a medical condition of some sort, there is medical and expert evidence in support of the plaintiff is case, and also medical and expert evidence supporting a contrary case on the medical issue which is put by the defendant. In most such cases the court resolves the conflict between the expert opinions in light of the court's assessment of the plaintiff. That is essentially what happened in the present case but there was one less usual feature in the present case which was taken by the appellant as the starting point of its argument that the trial judge's acceptance of the respondent as genuinely brain damages should be reversed by this court. That feature is the fact that for a period of six years after the accident there was an absence of any treatment for the consequences of the head injury the respondent suffered in the accident. It was only after that interval that the respondent began to see the experts upon whose opinions he relied at the trial in support of his claim for brain damage. The judge referred to the interval between the injury and the first attendance for treatment for the consequences of the head injury as a medical gap. He fully appreciated the importance of this interval in the context of the case he had to decide. He said "To fill in what I would describe as the medical gap or the period of years in which one needed to know what his symptoms were and the manner in which he presented, the plaintiff called a number of witnesses all of whom, and particularly one, I found extremely impressive and totally deserving of almost complete acceptance in everything they said." The principal submission for the appellant has been that the trial judge was demonstrably mistaken in his acceptance of the respondent. This submission relied on a number of arguments. The first of these was that the respondent was not only an unreliable witness but a witness whose evidence was shown, in the course of the case, to contain many untruths which could only be regarded as deliberate. The court's attention was drawn to a sequence of statements made by the respondent to various doctors and experts whom he saw in which he gave accounts of his employment circumstances at the time of the accident which did not correspond with facts which were established at the trial. Other instances were drawn to the court's attention. The second argument was that the trial judge did not explain why, in face of what emerged concerning the respondent, he accepted the respondent as genuine. These first two arguments, in my opinion, involve something of a misconception. As I read the reasons of the trial judge he did not at any stage indicate that he accepted all the evidence given by the respondent as accurate. He accepted him on some issues where there was corroboration and he accepted that the respondent believed he was brain damaged. The trial judge also indicated quite plainly that he did not necessarily accept the respondent had been truthful in statements made to doctors and other experts over the years but that what he, the judge, was primarily concerned with was the evidence of persons other than the respondent who had seen his behaviour over the years when he was not receiving medical treatment. It was their evidence he considered and by which, once he accepted it, he assessed whether the respondent was feigning his symptoms. The evidence of the lay witnesses corresponded in a way difficult to see as manufactured with the symptoms that the expert evidence showed would be demonstrated by a brain injured person. The trial judge gave reasons for accepting this evidence and there is no basis for this court to interfere with that acceptance. WAEWV SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GLYNATSIS (Priestley JA) As I read the trial judge's reasons it was this acceptance of the body of evidence of relatives and friends and other persons who saw the respondent in the period between the accident and the first relevant medical treatment which was the critical factor in his Honour finding the brain damage issue in favour of the respondent. The trial judge's acceptance of the brain damage case was also influenced by the impression the respondent made on him. He said: "T could not rid myself of the feeling that I had right from the first day in this case that the plaintiff was genuine and desperate to convince me that he was as severely disabled as he perceives that he is." This is not a general finding on the respondent's credibility as a witness. Indeed it contains in it a clear reservation concerning the accuracy of the entirety of the respondent's evidence. But it is a finding that the respondent was not deliberately feigning his symptoms and that is quite a different thing. It is noteworthy, also, that the trial judge made it clear he was well alive to the possibility of being deceived by someone in the position of the respondent. He referred to his own past experience in this connection and his remarks make it clear that he was giving full consideration to the possibility that, as the appellant contended, the respondent was deliberately trying to deceive the court. When a trial judge demonstrates that awareness a Court of Appeal must be more than ever cautious in coming to a conclusion that his impression of both a party and a number of witnesses was so clearly mistaken as to warrant the appellate court in interfering with it. I, therefore, think that the first two arguments relied on for the appellant should not succeed. The trial judge's references to the respondent's desperation to have someone else recognise that he was as severely disabled as he himself perceived himself to be led to the third and fourth arguments relied on by the appellant. The third was based on a comment made by his Honour as follows: "T noticed late in the case that he developed a bit of a twitching of the neck or the head in the back of the Court, which I had not noticed in the earlier part of the case. But it did not seem to me that he was doing that to attract my attention. Although it may be that he was desperately seeking that I believe him. That to me partially explains what was a significant submission by the defendant that some of the psychometric results were so bad and so bizarre as to indicate a person so severely brain damaged that if the results of some of the psychometric testing were genuine he would really be at the grave stage of somebody so severely brain damaged that he could not get about without assistance, literally could not do anything for himself, as this man obviously can do." For the appellant it was submitted that, in making these observations the trial Judge had made the kind of mistake dealt with in such cases as the Government Insurance Office v Bailey (1992) 27 NSWLR 304. The rule as stated and recognised by this court in that case is that where a judge makes observations of the actions or demeanour of a party which are not observable by counsel and makes use of those observations in a way which has a significant influence upon his decision of the case he is required, before making such use of those observations, to make them, and the possibility of his using them, known to counsel at a stage of the hearing at which counsel has an opportunity of dealing with them - see page 324. It was said that, first, there had been a breach of that tule and, second, such breach would lead to a new trial in the present case. 4 UNREPORTED JUDGMENTS Whilst I fully support the rule as set out in Government Insurance Office v Bailey I do not think that, upon a full understanding of the whole context of his Honour's judgment, the passage relied on by the appellant shows a breach of the rule. The beginning of the passage shows it was prompted by the judge having noticed something which, as he makes clear, might possibly have caused him to take a more adverse view of the respondent than, up to that point of the case, he was prepared to take. He then gave reasons why he did not think that what he had noticed should be taken into account against the respondent. The passage shows, particularly in its position in his reasons, that the observation he referred to was not significant in the conclusion which he reached and his observation was only mentioned so that he could put on one side something that he had noticed which, it had occurred to him, might possibly be to the respondent's disadvantage. In my view what the trial judge noticed and described had no significant effect on his reasoning process. As I mentioned earlier that process essentially was, when he was confronted with the two sets of opposing opinions from medical and other experts, and with what he called "the medical gap", to look at the lay evidence which was available dealing with the gap and then, when he saw that that evidence was, in his view, fully believable and entirely consistent with and supportive of the brain damage case to come to his basic conclusion, supported by the matter which he mentioned after that, that he had been impressed, from the first time that he saw the respondent, with his genuineness in the sense that I have earlier explained. I, therefore, do not think that this third argument should be accepted. The fourth argument put in support of the appellant's submissions was that in his reference to the respondent's behaviour being explicable on the basis of desperation,.the judge was venturing into the area of forming medical opinions and conclusions which he was not himself competent to do and which the expert evidence did not support. I do not think that that is a correct way of describing what his Honour's reference to desperation was directed to. What his Honour was doing, in my opinion, was explaining, in part, his own reasoning so far as a judge can explain fully and rationally a feeling that he gets from seeing and forming opinions about a party, why he had come to the particular conclusion that he did concerning his not feigning his symptoms. There is nothing particularly medical, in an expert sense, in the judge's description of what it was that led him to come to the conclusion that he did. Again, therefore, I do not think this argument should be accepted. The final argument was one based upon the trial judge's abovementioned observation that he had, from the first day in the case, had a feeling of the respondent's genuineness. As I understood counsel's way of putting this submission it really depended on some of the earlier arguments being accepted before it could have much weight. Counsel acknowledged that it was inevitable that judges will form such impressions and it cannot be said to have been any kind of error for the judge to have reacted to the respondent in the way that he did. The submission rather went that if any of the earlier arguments were successful this comment by the trial judge might help in explaining why he had gone wrong in the way the appellant contended he had gone wrong but, in view of what I have already said concerning the other argument, I do not think that this argument, of itself, can have any weight towards inducing this court to set aside the judgment pronounced by Christie DCJ. The result is, in my opinion, that the appeal should be dismissed with costs. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GLYNATSIS (Col6 JA) Gleeson CJ I agree. Cole JA I agree. 5 Gleeson J: The order of the court will be appeal dismissed with costs. COUNSEL Appellant: M ELKAIM 10 Respondent: CT BARRY QC SOLICITORS: Appellant: GM MEADOWS 15. Respondent: CONSTANTINE G PAVLIS AND CO