CRISP v ROSS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ and COLE JA 7 December 1995, 7 December 1995 [1995] NSWCA 107 DAMAGES — no question of principle. Cole JA The appellant was awarded $15,434.80 damages by Judge Flannery on 7 December 1987 for injuries suffered in a motor vehicle accident which occurred on 24 July '981. The verdict was made up of the following amounts: General damages: $10,000.00 Past loss of earnings: $250.00 Interest on past general damages and past loss of $5,000.00 earnings: Past out of pocket expenses: $184.50 Total: $15,434.50 The appellant seeks a new trial on the question of damages. An amended notice of appeal raises five grounds of appeal. The first is that the trial judge erred in rejecting the credibility of the appellant by reference to a number of matters which were not the subject of cross-examination namely: (a) that he borrowed money in order to take various commercial flights between Perth and Sydney; (b) his reluctance to give Professor Jones his litigation history; and (c) his reluctance to describe persons with whom he dealt otherwise than by their first or nicknames. The remaining four grounds of appeal all assert that the trial judge misunderstood the evidence of Dr Seaton. In my opinion the first ground of appeal fails. The trial judge rejected the appellant as a witness of good credit on a number of bases. They included his unimpressive demeanour, his changing account regarding the manner in which he travelled to Perth, his reluctance to indicate persons from whom he had borrowed money or with whom he had ridden, his poor memory of events, the objective circumstance that he was able to ride motorcycles shortly after various accidents yet said he was unfit for work, inconsistency of his complaints regarding his injuries, as well as the matters the subject of the first ground of appeal. Regarding the borrowing of money to take flights to Perth, the trial judge said it was "not the most important matter which exercised my mind"!. In my opinion where the appellant's credit has been rejected on a multitude of bases an appellant can not overturn such a finding by attacking some few only of those bases. There was an abundance of evidence upon which the trial judge was entitled to reach the finding of credit which he did. 1. Appeal Book, at 198C. 2 UNREPORTED JUDGMENTS Liability was not in issue. Nonetheless, as the trial judge correctly indicated, the onus was on the appellant plaintiff to satisfy the trial judge on the balance of probabilities that he suffered injuries or disabilities which had flowed from the accident. The trial judge accepted the evidence of Dr Mellick, who, in August 1982, was unable to identify any organic disturbance to the appellant's back. Between the accident on 24 July 1981 and the trial on 7 December 1987 there were four other incidents involving the appellant. Three were motor vehicle accidents. The fourth was the circumstance that on or prior to the 12th of August 1981, that is within three weeks of the accident said to have caused his injury, the appellant admitted he lifted the front fork or front of a Harley Davidson motor bike. As he was doing so, his back gave way and he fell to his knees. The question was whether any back injury of which the appellant complained was due to the motor vehicle accident, whether the lifting had aggravated any injury sustained in the motor vehicle accident, or whether, in truth, the lifting of the motor bike caused the back injury. The appellant gave an account of his collapse while lifting the bike to other doctors but not to Dr Seaton. The matter was put to Dr Seaton in cross-examination. Doctor Seaton's evidence, apart from describing the appellant's injury as "a moderate disc injury", was that the bike living incident gave rise to three possibilities, namely: "That he was aware when he attempted the lift that there was something wrong with his back so he didn't lift that's one possibility; the other possibility is that he began to lift and suddenly realised it was beyond him, and the third possibility is that he injured his back lifting the bike." Doctor Seaton was unable to distinguish between the three possibilities. However he added: "IT can't honestly believe that a man with a serious back injury that had happened two weeks before, the week before whatever his Honour has in the dates, would lift a Harley Davidson; you see that's what I can't understand, that's the difficult part from an orthopaedic viewpoint to see a man go out and lift a Harley Davidson bike with a disc injury in his back that occurred a week before?." I do not think the trial judge misunderstood Dr Seaton's evidence. The trial judge found that: "Dr Seaton was of the opinion that his back problem was not a significant one.3" That accords with the evidence I have quoted, and as quoted by the trial judge, that the injury could be described as "a moderate disc injury'"'4. The trial judge also found, in the light of the plaintiff's unreliability as a witness that it was: "Difficult in the total setting of this case for me to be satisfied on a balance of probabilities on a number of matters which he asserts and I am not satisfied on the balance of probabilities that his present problems of the back, if any, are a result of the incident upon which he sues. Indeed Dr Seaton when brought to the witness box was not prepared to say as a matter of probability that the lifting incident was an aggravation of an injury to the low back he sustained in the accident which he has sued upon, nor can I." 2. Appeal Book, at 98. 3. Appeal Book, at 195G. 4. Appeal Book, at 195M. URJ CRISP v ROSS (Gleeson CJ) 3 That is a correct statement of the evidence of Dr Seaton which I have quoted. His Honour correctly repeated his understanding of Dr Seaton's evidence'. In my opinion each of grounds two to five inclusive fail. The appeal should be dismissed with costs. 6 Gleeson CJ I agree. The orders will be that the appeal is dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: BG Gross QC/RH Grace Respondent: HM Di Suvero 15 SOLICITORS: Appellant: JH Healey and Co Respondent: GM Meadows253545 5. Appeal Book, at 200 O-U, 201 H-L.