BOTTOMLEY v GIO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and MEAGHER JJA 15 March 1995, 15 March 1995 [1995] NSWCA 56 ECONOMIC LOSS, PAST AND FUTURE — FINDING ON PLAINTIFF'S CREDIBILITY FACTS: The plaintiff/appellant appealed an award of damages for past and future economic loss by challenging the findings of the Court below as to the credibility of the plaintiff/appellant. HELD: (1) The findings of the judge below were fairly open on the evidence and are not appealable. ORDERS: (1) Appeal dismissed with costs. Meagher JA The plaintiff, Mr Bottomley, sued the defendant for injuries suffered by him in a motor vehicle accident on 14 September 1986. He claimed he had suffered personal injuries and extensive economic loss both past and future. He alleges he had lost earnings which otherwise he would have made. His Honour awarded him a verdict of $22,000. That seems to be composed of the following items: Out-of-pocket expenses past and future $9,500, general damages $12,500. There was a specific finding by his Honour that there was no economic loss, past or future. Some incapacity may have existed but apparently not, according to his Honour, so as to result in financial loss. In order to come to this conclusion his Honour took a very dismal view of the plaintiff's credibility. In fact I have rarely seen, in civil litigation, findings as adverse to a plaintiffs credibility as those made by his Honour. His Honour in effect found he was a liar, fraud and cheat, a person who hoodwinked some of his doctors and tried to hoodwink the court. He found almost all of his case was a fabrication and even went to the lengths of saying it was unjust to award him any damages at all. All these findings, melancholy though they be were open to his Honour. Mr Evans did his best to challenge his Honour's findings while conceding, as he had to, that his Honour's judgment on credibility was unimpeachable. It was, in my view, fairly clearly put to the plaintiff that his case was fraudulent. There was evidence which, if accepted, justified the finding of his Honour that the case was fraudulent, and his Honour did so. In these unhappy circumstances in my view no conclusion is possible but that the appeal be dismissed with costs. Mahoney JA I agree with what Mr Justice Meagher has said and with the orders he proposes. I would add some comments of my own comments. Firstly, Mr Evans has accepted the Judge's findings as to credibility and what he has said has been recorded in the transcript, I need not expand on that. I do not think that he has any real or practical alternative but to take the course that 2 UNREPORTED JUDGMENTS he did. The Judge's findings were, as Mr Justice Meagher has suggested, trenchant, but, having regard to the law which binds this Court, I do not think that anything could have been said which would have justified this Court going behind them. Secondly, it was suggested that the fact that, or the extent of, the plaintiff's actions affected his credibility or the extent to which they did, were not put to him in cross-examination by the defendant. Had this been so, there might have been grave error in the proceedings. But it is clear that the matters were put to him in trenchant terms and that the Judge was conscious that it was being put to him. I cannot think that the plaintiff was under any illusion but that what was being put to him was that he was fabricating his symptoms in the manner to which the Judge referred. Thirdly, Mr Evans raised the problem - I may describe it as a perennial problem - which arises from the fact that a Court was asked to determine between conflicting medical opinion where what it had before it was the oral evidence of a party who is disbelieved or not fully believed and two conflicting medical statements. In this Court reference has been made on a number of occasions to the difficulty which arises in such a case. It is open to parties to require witnesses who have given statements of this kind to attend for cross examination. In the present case there were two conflicting statements. It might be said to each party, in the sense to which Mr Evans refers - "Well, if you are going to contest the accuracy of what was said in the statement you should have called the witness for cross examination". Of course, the same thing would have applied to each of the conflicting witnesses. In the present case the parties chose to conduct the matter upon the basis that the Court had to choose between the written statements without cross examination. That, I think, is an unsatisfactory position. The parties, for their own purposes, are entitled in this regard to conduct the case as they see fit. There may be advantages in conducting a trial so as far as time and other things are concerned. This left the Judge in a position in which he had to choose between the two conflicting statements. In the present case, the choice was perhaps not as difficult as some cases in which a choice has to be made between two statements. In this case it may be inferred, I think, that a good deal of a basis of the opinion formed by Dr Harvey for example in regard to the plaintiff, depended upon what was seen in relation to the plaintiff's turning of his neck and what he told the doctor as to pain on turning of his neck and the like. If the plaintiff was, as the Judge below found, minded to deceive the doctor, then the doctor may well have come to the conclusion he did. On that basis it was possible for the Judge below to prefer Dr Neild's evidence to that of Dr Harvey, without facing the irreconcilable conflict between two medical statements, neither of which came to be questioned. In the circumstances I do not think that this factor is of assistance to the appellant. It was then put that, even accepting his findings as to credit the Judge went too far. It was suggested he must have awarded some compensation for loss of economic capacity during the two year period in question. I do not think that this is so. I think the judge took the view that, during this period, the plaintiff, though incapacitated to an extent, by what he accepted to be his condition, could have worked and probably did work. I do not think that it was wrong for the Judge to find as he did. URJ BOTTOMLEY v GIO (Mahoney JA) 3 In all the circumstances I do not think that the appeal should be upheld. I agree with the orders proposed. The orders of the Court, therefore, are the appeal is dismissed with costs. 5 Appeal dismissed with costs. Counsel for the appellant: G BROOKES EVANS Solicitors for the appellant: BAKER LOVE 10 Counsel for the respondent: M ELKAIM Solicitors for the respondent: GIO