NSW INSURANCE MINISTERIAL CORPORATION (FORMER GIO OF NSW) v BERRY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and COLE JJA 21 March 1995, 21 March 1995 [1995] NSWCA 334 Damages — No question of principle Appeal from Common Law Division — Damages — No question of principle. Mahoney JA This case arises out of a motor vehicle accident which was suffered by the plaintiff on 10 November 1985. He made a claim for damages and on 11 April 1994 his Honour Mr Justice Blanch gave judgment for the plaintiff for $347,468. The defendant has appealed to this Court against his Honour's judgment. The judge in a detailed judgment made a number of findings in relation to the main aspects of the plaintiff's injuries. In the circumstances it is not necessary for me to detail the judge's judgment or the matters with which he dealt. The essence of the appeal lies in the judge's finding which he made in the following terms: "The plaintiff gave evidence and, in spite of some hesitations and vagueness, I am satisfied he was telling the truth." That finding I think was applicable not merely to the particular matter with which he was there concerned but generally, and it has I think been so treated for the purposes of the present argument. His Honour's judgment proceeded upon the basis that in relation to the matters generally in dispute and subject, of course, to the terms of the judgment that he was satisfied that the plaintiff was telling the truth. The submissions that were made below on behalf of the plaintiff involved that because substantially of the injury that had been done to his neck in the accident, because of the pain that he suffered from it, he was incapacitated for work to a substantial extent. The judge accepted that finding. In considering, as he described it, the ability of the plaintiff to work he referred to particular matters of detail. Thus, he recorded the detailed efforts he made since his operation in 1992 to find work, and his Honour accepted that he had not been able to find work. As his Honour said, he is over forty, he is seeking unskilled work and he has limitations to his physical capacity. His chances of competing successfully in the labour market are not good. Upon that basis the judge assessed the damages as he did. The judge considered in detail the substantial matters that had been urged against the finding that the plaintiff's then condition was a substantial result of the accident of 10 November 1985. Two matters in particular were urged for the defendant. The first was the fact that the plaintiff had, before the accident, been drinking heavily and was, as I think it was contended before the judge, in fact at that time an alcoholic. The judge considered the evidence such as it was in relation to that matter. The plaintiff gave evidence in respect of it. He had I think denied overall that he was an alcoholic but he admitted to several persons that he was drinking to an excessive amount, to an amount which, to an ordinary person, would seem quite excessive. Mr Laughton in his submissions has referred to 2 UNREPORTED JUDGMENTS three at least of the histories which he gave to medical practitioners which indicated that he was drinking to that extent. The judge in his judgment referred to what was recorded in the report of Dr Gilligan in relation to excessive consumption of alcohol. The doctor recorded that the plaintiff had stated that a six pack of stubbies of normal beer per day was the order of his consumption or at least was the extent of the alcoholic consumption on a number of days. The judge said that the plaintiff had given evidence that although he drank, he was not an alcoholic. The judge referred to the evidence of a Mrs Ferguson who said his drinking habits deteriorated remarkably after the accident, to the evidence of Mr Robert Smith who said that he had no problem with him as a drinker prior to 1985 and to what had been said by Dr Veness. His Honour in his conclusions did not state in terms what he had found as to the extent of the consumption of alcohol before the accident but he stated that it was: "\.. difficult to disagree with Dr Veness who said the plaintiffs descent into alcoholism was precipitated by the stresses of the accident and its consequences. I find on the balance of probabilities that is what occurred." Mr Laughton sought, in order to avoid the effect of the findings as to the plaintiff s credibility and in particular the finding in relation to his use of alcohol, that the judge had in this regard acted upon errors of fact and that those errors of fact warranted and required this Court to go behind the findings which otherwise, in accordance with accepted doctrine, would not be open to review by this Court. I say this in the sense that the Court would have regard to the advantages the trial judge had in seeing the witnesses and would treat that advantage in the way to which reference has been made in the cases referred to in argument. It is not necessary for me to detail the arguments in this judgment or all of the errors suggested in argument. It is sufficient to say that I do not see any relevant error in the judge's approach to the question of alcoholism or any other relevant error in relation to his findings as to credibility. I would not see the suggested errors as a ground for this Court putting aside the judge's findings in this regard. Reference was made by Mr Laughton also to errors suggested to have been made in relation to the judge's findings touching the circumstances in which he left employment with the electricity authority to which reference was made in evidence and errors in relation to the extent of his neck pain following the 1976 accident (an accident before the present one). Reference has been made to matters of this kind in the written submissions which the Court has had the advantage of reading. Mr Laughton did not, in the circumstances, press these orally although I do not take him to have departed from what has been said in the written submissions. It is sufficient for me to say that I see nothing in what was said which would warrant this Court in going behind the judge's findings as to the credibility of the plaintiff or otherwise his findings in relation to the matter. Considering the evidence that is before the Court as on a re-hearing and accepting that the plaintiff's evidence was substantially accurate to the extent to which the judge referred, I would not come to a conclusion different from that to which the judge came. If the matter be approached upon that basis, I do not see any error in the assessment of damages that has been made and in substance none has been pressed in argument before this Court. In all the circumstances in my opinion the appeal fails. I would propose that the appeal be dismissed with costs. Meagher JA I agree. UWRBW INSURANCE MINISTERIAL CORPORATION (FORMER GIO OF NSW) v BERRS (Cole JA) Cole JA I also agree. The High Court in Abalos v Australian Postal Commission 171 CLR 167 and more recently in Devries v Australian National Railways Commission 177 CLR 472 have laid down clearly the circumstances in which this Court may interfere with a trial judge's findings of fact. In my view it is incumbent on those who make decisions to bring appeals to this Court to have regard to those decisions. I think this case should not be left without it being said that I do not think attention was given to that matter before consideration of the appeal resulted in a decision to bring it. In my view that matter should be brought to the attention of all practitioners in the future. I agree with the orders proposed. Mahoney JA: The orders of the Court are, therefore, that the appeal is dismissed with costs. If an amount of interest is payable and it is agreed between the parties, so much the better but, as I understand it, there is nothing before this Court which requires it to deal with interest. The order of the Court is, as I have indicated, that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: GA LAUGHTON Instructed by: GM MEADOWS Counsel for the Respondent: KG HORLER QC/P BURTON Instructed by: PRMELA COWARD AND ASSOCIATES