HAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirsy P, HANDLEY JA and POWELL JA 21 April, 6 June, 19 December 1995 [1995] NSWCA 189 APPEAL — credibility findings — demeanour of party and witnesses — two claims — claim of slipping fall in supermarket — rejection of hearsay statement allegedly made by customer who fell shortly before plaintiff — alleged mistake in use of medical evidence — judge rejects plaintiff as witness of truth — second incident concerns alleged impact with plaintiff's motor vehicle in carpark — driver denies that plaintiff was in motor vehicle at the time it was struck — judge believes driver and disbelieves plaintiff — held: The findings were impervious to appellate disturbance. Being based in part upon the judge's assessment of the credibility of the plaintiff and of other witnesses, they were open to the judge and were not such as to show that the judge had misused his advantage as the judge of trial seeing the witnesses. Appeals dismissed. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 172 applied. EVIDENCE — hearsay — admissibility of — alleged statement made out of court by person allegedly injured by slipping on floor of supermarket shortly prior to plaintiff's fall — whether report of statement by plaintiff admissible — whether within res gestae exception to hearsay rule — whether sufficient contemporaneity — whether alleged statement maker has an interest in the subject — whether element of spontaneity sufficiently present — trial judge (Lusher AJ) excludes evidence and declines to act upon it — upon appeal — held: (1) It was open to the trial judge to exclude the evidence as outside the res gestae exception to the hearsay rule. Ratten v The Queen [1972] AC 389 (PC); Vocisano v Vocisano (1974) 130 CLR 267; Pollitt v The Queen (1992) 174 CLR 558; Sydney Electricity vy Giles, Court of Appeal (NSW), unreported, 25 November 1993 applied; (2) In any case, no relevant miscarriage had occurred which would warrant allowing the appeal on this ground. Kirby P. These are two appeals brought by Mr Hammoud (the appellant), the plaintiff in the actions below. In the first and second of these actions, he had sought damages for injuries allegedly sustained due to the negligence of the first and second defendants respectively (now the first and second respondents to the appeal. The actions were heard together before Lusher AJ pursuant to an order made by Yeldham J. Lusher AJ dismissed both actions. In the first action, the appellant alleged that while shopping for goods at Grace Bros he slipped on some liquid on the floor and fell, causing injury to his back. This accident was said to have occurred on 4 June 1983. The second claim was against the Government Insurance Office. It involved an allegation as a result ofbeing injured in a car accident on 3 August 1984 that the appellant had sustained an aggravation of the back injuries. Lusher AJ found that the appellant did slip on the floor while shopping at Grace Bros on 4 June 1983. However, his Honour held that the appellant had failed to establish negligence on the part of Grace Bros. The reasoning which led his Honour to that conclusion will be examined shortly. It is sufficient to note for 2 UNREPORTED JUDGMENTS present purposes that the basis of his Honour's conclusion was the insufficiency of the evidence called by the appellant, combined with a rejection of certain parts of the evidence given by the appellant, as a result of an adverse finding concerning the appellant's credibility. The gist of the appeal in both actions is the contention that Lusher AJ's findings concerning the appellant's credibility were erroneous and open to appellate correction. Clearly, the appellant faces considerable difficulties in persuading an appellate court such as this of error on the part of the trial judge when his conclusion was based, in part, on the impression he formed of the truthfulness of the witnesses. Counsel for the appellant, no doubt mindful of these difficulties, has sought to base his case on the submission that the adverse findings of the appellant's credibility by the trial judge resulted not from an assessment of his demeanour as a witness, but rather from findings of fact which were manifestly flawed and susceptible to appellate correction. This submission also faces formidable hurdles: see the remarks of McHugh J in the High Court, with which remarks the Court agreed, on the influence of the subtle influence of the demeanour of a witness. Abalos v Australian Postal Commission (1990) 171 CLR 167 , 179. The second action brought by the appellant depended, even more than the first, on the assessment the appellant's credibility. In respect of that matter, the trial judge found that the appellant simply was not in the car as he alleged at the time that the driver of the other car, for which the GIO is liable, hit the appellant's car. The appellant's version of events was that his car was hit from behind by the driver of the other car whilst the appellant was attempting to nose his car into a parking spot. The driver of the other car, a Mr Chiami, gave evidence before Lusher AJ that the appellant was not in the car at the time the accident occurred. The trial judge accepted Mr Chiami as a witness of truth. He found on the probabilities that the appellant was not in the car at the time of the accident. Clearly, this was a matter in which the appellant's credibility was of critical importance. As if these were not difficulties enough for the appellant, another area of the evidence in respect of which the appellant's credibility was found wanting by Lusher AJ was in the evidence relating to his claim for damages, in particular the medical evidence. Two important comments should be made about the medical evidence. First, it will not be necessary to consider the adequacy of the damages awarded in respect of the appellant's medical condition unless it be shown that the trial judge was in error in deciding the anterior question of liability in the actions. Secondly, insofar as the medical evidence is offered as tending to show that the accidents took place, it is important to bear in mind the difference between the finding of the existence of a condition and the cause of it. The medical witnesses acted upon a history of injury given to them by the appellant. Their opinions, based on that history, are only as valuable as the acceptance of the history by the trial judge. It is the foundation on which their opinions rest. A further use to which, it is claimed, the medical evidence was put was in relation to the finding by the trial judge that the appellant had a pre-existing back condition dating back to 1978, as evidenced by his medical records. This finding was attacked for the appellant for reasons which will be set out below. The appellant argued that once this finding disappeared, a major basis for impugning the appellant's credibility was removed. WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCB OFFICE OF NEW SOUTH WALES (Kirby P) This, then, is the context in which the appellant's challenge to many of the factual findings of the trial judge must be addressed. In addition to the issues outlined, the appellant's first action raises a question of the admission by the primary judge of certain evidence, the rejection of which clearly had an impact on his finding concerning the inadequacy of the evidence to sustain the appellant's case. The first accident of 4 June 1983 At the trial, the appellant's case against Grace Bros was, in summary, as follows. The appellant, who at the time was a Divisional Stock Manager at Grace Bros, Broadway went on 4 June 1983 with a friend to the Grace Bros, Roselands supermarket to do some shopping in preparation for a function which he was proposing to hold. His friend's name was Mr Court. According to the appellant's evidence, the width of the aisles in the supermarket was approximately 5 metres. This is somewhat surprising estimate given the design of most supermarkets. However, the appellant said that the width of the aisle which he was pushing his trolley down at the relevant time was 5 metres. He gave evidence that, as he was walking down the aisle pushing a trolley in front of him, he was looking around foritems to purchase for his purpose. It was while he was pushing the trolley and looking at the shelves in this way, that his feet slipped. He fell backward heavily on his buttocks. He described the material that his feet slipped on as 'slipper (sic) stuff'. As he got up he noticed slippery, soapy liquid material on his hands. When he got up he saw a pool of the 'soapy stuff' of a diameter of about | metre. He could not recall what colour the tiles on the floor were, but described them as 'not the stony type of tiles. It is similar to perhaps plastic or rubber sort of tiles'. The appellant said that when he got up he saw a woman sitting on a chair somewhere near the pool of soapy stuff talking to a man with a Grace Bros badge. Without objection the appellant gave the following evidence: Q What did she say? A She said, "Had you cleaned up this stuff, this gentleman would not have fallen" because she had fallen before. Before me. Q She had fallen before you? A Before me.' Although this evidence was not objected to at the time, the trial judge held that it was inadmissible for reasons which I will set out below. It should be noted that, in addition to the apparent hearsay (for the woman was not called for cross-examination) and the opinion of causation involved in the statement, the words 'because she had fallen before' may not in any event have formed part of that statement, as is suggested by its form as indirect speech. It was rather a conclusion apparently drawn by the appellant himself from the woman's alleged statement. The appellant gave evidence that the nursing sister employed by Grace Bros then came down and attended to him. She asked him how he wasand if he could get home all right. The appellant asked her to record the fact that the accident had occurred from the days he had actually worked at the store. The appellant was aware of the fact that the store had a nursing sister on duty. He had worked at Grace Bros, Roselands, as a management trainee and then an Assistant Departmental Manager from 1977 to 1979, before resigning from Grace Bros and recommencing work in another, earlier mentioned capacity at Grace Bros, 4 UNREPORTED JUDGMENTS Broadway from 1981 to 1985. At the scene of the accident the woman seated on the chair offered to give the appellant her name and address. She later allegedly did so. The findings of the trial judge regarding the accident Concerning this action the trial judge said: The case against Grace Bros on liability is sparse and skimpy for what reasons I cannot understand. After setting out the evidence in summary form as stated above, the trial judge continued: There was no evidence as to the type of trolley, the amount of traffic present or anticipated or otherwise in the aisle, whether it was a busy area, or whether there were any obstructions, no evidence as to the lighting or colour of the material or tiles, or what happened to the trolley, how long the material had been there or how it got there or the opportunity available to remove it. There were no plans, no photographs, and no evidence of anticipated traffic. Likewise, there was no evidence as to the nature of the plaintiff's footwear, if any or his rate of movement. All these matters and no doubt others are relevant on negligence and contributory negligence, eg, colour may go to whether it was obvious or concealed, or even noticeable or to be seen by a Grace Bros employee. Similarly, time or duration goes to opportunity for knowledge by the defendant. It may have just been spilt or dropped or leaked with no opportunity. The type of tile, whether it was non slip and the like are also relevant.""Having ruled the reported comment of the woman, given by the appellant, was inadmissible, the trial judge continued: There was no evidence as to the status or position of the man with the badge. There is no question of res ispa, not is it claimed. The defendant called a Mr Court, a companion who was with him. His evidence added nothing to the plaintiff's. other than that he could not tell what sort of liquid, and the lady whom he saw afterwards had some liquid on her clothing. There was no evidence as to where this came from. He did not describe the liquid or the area, nor was he asked to or whether he saw it or to describe the floor. For the reasons later as to the plaintiff's credibility, I do not accept his evidence as to it being soapy or slippery or his evidence as to the area particularly as it is not sought to be corroborated by an available witness. The witness's statement as to what would have happened to the lady was a speculative conclusion and was not evidence. He did not see it. The defendant, Grace Bros called no evidence on the issue of liability. Thus the plaintiff's case in short is that the proof of a slip or fall on a floor on some unidentified liquid in an aisle available to customers in a supermarket of itself involves no negligence. The duty of care is to take reasonable care to avoid a foreseeable risk of injury to an entrant thereon. The cause of such a slip or fall may be or may not be due to negligence or, put strictly, due to lack of reasonable care. The plaintiff carries an onus of proof on the civil standard. In my opinion, the findings do not raise a case of negligence. Even if the unacceptable evidence on slippery liquid in the area was accepted, it would not in my opinion take the case forward to the point of negligence. The decision of the High Court in Hampton Court Ltd v Crooks 97 CLR 367 and Australian Stores Pty Ltd v Zaluzna 162 CLR 479 are clear enough and authoritative in this field. I don't see that the Court can take judicial notice of the type of trolley, floor, liquid or footwear, or anticipated traffic in this particular aisle or some time frame. The defendant Grace Bros, in my opinion, is entitled to a verdict for the defendant and I so find. To find otherwise in my opinion would be to impose an absolute liability on a shopkeeper. I further find as a fact that on the evidence the defendant was not negligent and that on the balance of probabilities the plaintiff failed to establish that it was.""Neither in the written nor in counsel's oral submissions has it been argued for the appellant that if the trial judge's findings of fact cannot be disturbed, his legal conclusion was nevertheless wrong. With one exception, WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCB OFFICE OF NEW SOUTH WALES (Kirby P) the issue in the appeal against the judgment in favour of Grace Bros is the susceptibility to appellate review of the findings of fact made by the trial judge, and of his conclusion as to the appellant's credibility. The appellant's submissions confirmed that disturbing those findings was an essential prerequisite to upsetting the findings that grounded the judgment in favour of Grace Bros. Inter alia, the appellant challenged the following finding of the trial judge: The plaintiff's case in short is that the proof of a slip or fall on a floor on some identified liquid in an aisle available to customers in a supermarket is of itself involves negligence. In the written submissions the appellant challenged the trial judge's finding that 'to find otherwise would be to impose an absolute liability on a shopkeeper'. However, the appellant relied on the challenge to the trial judge's factual findings to overcome his finding. Credibility was thus the lynch-pin of the conclusion in the proceedings between the appellant and Grace Bros. The admissibility of the alleged statement of a witness. By this appeal the appellant raised directly one issue of law, in contending that the trial judge erred in law in finding that the comments the woman, recanted by him, were 'not relevant'. In fact, it would appear that the trial judge held the evidence inadmissible. The relevant passage from the judgment reads as follows: In my opinion, the lady's comment is not relevant, the Court determines matters on admissible (sic) evidence. What she said is evidence of what she said, it is not evidence that what she said did in fact happen.' (sic) The former sentence in this passage was an elliptical way of holding the woman's evidence inadmissible because the only permissible use which can be made of evidence is if it is relevant to fact in issue. It will be necessary to decide upon the correctness of this ruling before analysing the criticisms of his Honour's factual findings. As will appear, many of the appellant's criticisms were premised, or at least partly reliant, on the assumption that the evidence of the woman's statement was admissible. The evidence of statements attributed to the woman allegedly injured just prior to the appellant was clearly inadmissible as both hearsay and opinion evidence, unless it fell within an exception permitting the reception of such evidence. The relevant exception was said to be the res gestae exception. Indeed, this was the only basis upon which the appellant argued that the statement was admissible. Counsel for the appellant argued that the statement was contemporaneous with picking the appellant up off the floor immediately after his fall. It will be assumed for the purposes of argument that the requirement of contemporaneity is made out in this case. Although not strictly contemporaneous, the remarks are probably 'approximately contemporary' as required by the authorities on the res gestae exception which allow a degree of flexibility necessary to account for the many circumstances that can arise. However, while contemporaneity is a pre-condition to the admissibility of evidence as forming part of the res gestae, it is not, of course, sufficient of itself to ensure reception of the evidence. In support of his submission of the admissibility of the evidence as forming part of the res gestae, counsel for the appellant relied on the decision of the Court in Sydney Electricity v Giles (25 November 1993, NSW Court of Appeal, Kirby P, Clarke and Sheller JJA). In that case the plaintiff, who was unable to give evidence himself as a result of his disability, had said at his place of work to a workmate immediately after the apparent incident, 'I bumped my head'. It was held that evidence from the workmate of this statement was rightly admitted 6 UNREPORTED JUDGMENTS as part of the res gestae. It was available to prove the truth of its contents. However, this decision confirms that whatever the precise scope of the rule, contemporaneity alone is not sufficient. Whether or not res gestae is explained in terms of 'spontaneity', it is necessary that the statement is such that it is unlikely to have been concocted. Clarke JA said: In my opinion the trial judge was correct to admit the statement as part of the res gestae. In reaching that conclusion I have accepted Brennan J's opinion (Pollitt v R (1992) 174 CLR 558 , 580) that the American view which treated the evidence as an exception to the hearsay rule "on the ground that a guarantee of their truth is to be found in their spontaneity, in the lack of "time to devise or contrive" and in the instinctive character of utterances made under the influence of excitement" has prevailed. It is easy to see why the requirement of spontaneity was met in Giles. The evidence of the plaintiff, if accepted, would indicate that immediately before the alleged conversation he himself had immediately been the victim of a blow to the head, which could reasonably be taken to have led to a state of excitement. In addition, the statement itself was clearly of an 'instinctive character'. The distinction from the present case is apparent. The woman whose comment was reported by the appellant was not the victim of the relevant accident. At that time she was a bystander. It is true that it may no longer be a bar to the admission of a statement under the res gestae exception that it is uttered by a bystander to the transaction. However, it appears from the authorities that where the statement is uttered by a person not actually involved in the event, the exclusion of the possibility of distortion will usually be established only where that statement is made spontaneously. So much was recognised by the High Court in Vocisano v Vocisano (1974) 130 CLR 267. Brennan J in Pollitt summarised the gist of that judgment as follows: The statement must be made in conditions "of approximate [if] not exact contemporaneity" and the impossibility of concoction or distortion must arise from the "spontaneity or involvement in the event" by the maker of the statement.' (emph added) (581) In addition, Brennan J cited with approval the following passage from the joint judgment of Wilson, Dawson and Toohey JJ in Walton v R (1989) 166 CLR 283 at 304: The justification for [the res gestae] exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten v R [1972] AC 389-390; Reg v Andrews [1987] AC 281 , 300-301; See also Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: See Vocisano v Vocisano.' (cited in Pollitt by Brennan J at 581-2) Assuming in the appellant's favour that, on the present state of the authorities, it is no longer required that the impugned statement be partof the transaction itself, it is nevertheless clear that approximate contemporaneity is not sufficient. Whether the additional requirement be described as 'spontaneity', a statement of an 'instinctive character' or by some other means, it is clear that, in order for the statement to be admissible at common law as part of the res gestae exception to the hearsay, the possibility of concoction or distortion must be excluded. As a matter of commonsense and experience, this is less likely where the comment is (a) made by a bystander, (b) contains an express assertion, and (c) that assertion WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) constitutes the expression of an opinion as to the liability of the store for the accident which takes on the colour of a self-serving report favouring the reporter. One of the purposes for which the appellant urged that the woman's reported statement could be used runs counter to the appellant's argument that it is admissible. The appellant stated that the statement indicated that a previous accident had just taken place. But, if this were accepted, it simply demonstrated the obvious interest on the part of the woman in making the assertion attributed to her by the appellant. Lord Wilberforce, delivering the judgment of the Privy Council in Ratten made the following remarks which were cited and approved by Mason CJ in Walton (at 294-5) and part of which was cited and approved by Brennan J in Pollitt (at 580-1): The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which the judges in fact apply. In their Lordships" opinion this should be recognised and applied directly as the relevant test: the test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction .... As regards statements made after the event it must be for the judge, by a preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity orinvolvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. [T]here is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.' (emph added) It follows from this consideration of authority that, whatever the ultimate scope of the res gestae exception to the hearsay rule at common law, there was no error on the part of Lusher AJ in excluding the impugned statement. This is so even if it be the case that subsequent developments in the case law have weakened the authority of one of the decisions relied upon by the respondent: Teper v R [1952] AC 480. Upon that basis, it is not necessary to consider the present status of that case. However, a decision discussed with approval in Teper affords a good example of the difficulty of attempting to bring within the res gestae exception comments reportedly made by a bystander who reportedly witnessed an event which comment was clearly intended to inculpate one of the parties to the transaction. The Judicial Committee summarised that case as follows: In The Queen v Gibson 18 QBD. 537 the prosecutor gave evidence in a criminal trial that, immediately after he was struck by a stone, a woman going past pointing to the prisoner's door said, "the person who threw the stone went in there"." This evidence was not objected to at the trial, but it was admitted by counsel for the prosecution in a case reserved that the evidence was incompetent. The conviction wasquashed, and from their judgments it is clear that the judges who took part in their decision were far from questioning the correctness of counsel's admission. In Gibson's case the words were closely associated in time and place with the event, the assault. But they were not directly connected with that event itself. They were not words spontaneously forced from the woman by the sight of the assault, but were prompted by the sight of a man quitting the scene of the assault and they were spoken for the purpose of helping to bring him to justice'. (emphasis added.) 8 UNREPORTED JUDGMENTS Even if the objection in the closing sentence of the foregoing passage no longer states the common law in Australia, the Judicial Committee's view that such a statement lacked the requisite spontaneity because of the inculpatory purpose for which it was made, remains a valid objection to the admission of evidence as part of the res gestae. The applicability of the reasoning of the Privy Council to the present case is obvious. It is appropriate to deal briefly with the further ground urged by the respondent in support of its submission that the statement was not admissible. It was submitted for Grace Bros that, since the testimony of the appellant concerning the woman's statement was clearly self-interested, it offended the rationale of the res gestae rule which is that such evidence be reliable. This submission erroneously focused upon the reliability of the evidence of the statement, rather than the reliability of the statement itself. However, for the reasons earlier given, evidence of the statement was rightly excluded by Lusher AJ. The statement did not meet the prerequisites of the exception to the hearsay rule allowed by the res gestae principle. If, contrary to what appears from the transcript report given by the appellant e woman herself formed part of her statement, that would constitute a further ground for its exclusion from the available evidence in the case against Grace Bros. The self-interest of the woman, apparent in such a statement, further lessens its reliability. Finally, if contrary to all of the foregoing, the evidence of the statement was wrongly excluded by Lusher AJ, that alone would be insufficient to warrant a retrial. The appellant must show a miscarriage of justice. This the appellant has singularly failed to do because of the many other findings made by the trial judge adverse to the appellant's credit which help to sustain his Honour's orders. It is therefore necessary to consider the challenged factual findings of Lusher AJ in the first appeal in the light of the conclusion that the statement by the woman was inadmissible and was rightly excluded by his Honour from his ultimate conclusion in that case. The challenges to the findings of fact of Lusher AJ in the Grace Bros matter The first complaint of the appellant about Lusher AJ's findings challenges his Honour's conclusion that there was no evidence as to the amount of traffic present or anticipated in the aisle. This complaint is without substance. The appellant is only able to point to the evidence that the woman who was the maker of the impugned statement had, by inference, used the aisle and had fallen shortly before. This could scarcely amount to the requisite evidence as to the extent of user of the trafficway giving rise to a reasonable obligation of intermediate inspection and attention to defects. In any event, because of the rejection of the woman's statement, there is in fact no evidence that the aisle had been used by anyone. For similar reasons, the complaint of the appellant as to the finding by the trial judge concerning the lack of evidence as to how long the alleged material had been on the floor, how it got there, and the reasonable opportunity alleged to remove it, cannot be sustained. After the exclusion of the woman's alleged statement, the trial judge was not obliged to infer that she had slipped on the same or similar pool of liquid as the appellant allegedly did. The fact that the appellant drew this inference is irrelevant. The trial judge correctly so ruled. The appellant is right in his complaint that the trial judge erred in holding that there was no evidence as to the rate of the appellant's movement. As counsel for the appellant submitted, there was evidence that the appellant and Mr Court were WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) walking down the aisle and that the appellant was looking at items on the shelves while doing this. This evidence, not inherently improbable, would at least exclude any inference that the appellant was, for example, hurrying. The appellant also complained of a finding that there was no evidence as to the status or position of the man described as wearing a badge. However, counsel for the appellant did not seek to make any submissions on what that position was. However that may be, once the statement of the woman was excluded from the evidence, the relevance of the attendance of this person is diminished so far as his presence is alleged to impute to Grace Bros knowledge of the danger demonstrated by the woman's alleged earlier fall. The next complaint for the appellant concerns Lusher AJ's judge's statement that Mr Court's evidence added nothing to the appellant'sevidence other than that he could not tell what sort of liquid it was, and the woman whom he saw afterwards had some liquid on her clothing. It is appropriate set out the evidence of Mr Court concerning the circumstances of the accident: Q. What happened? A. We walked down the hall and Mr Hammoud was pushing a shopping trolley and he fell on his bottom and I helped him stand up and there was some liquid on the floor on which he slipped. Q. Do you know what sort of liquid it was? A. Iam not sure what sort of liquid it was. I couldn't really tell. There was also a lady there sitting on a chair and after I helped Mr Hammoud stand up, the lady came and spoke to Mr Hammoud and then Mr Hammoud took her name and address? Q. Did you notice anything about her attire, her clothing? A. Yes, it was soiled by some of the liquid and so she would have fallen backwards. Q. She was sitting there. When did you first notice her? A. After Mr Hammoud had fallen down. Q. Prior to the accident what were you doing? A. We were just walking down the aisle looking for some items. Q. Looking for items? A. Yes. It is true, as counsel for the appellant points out, that Mr Court was not directly challenged on this evidence in cross-examination. However, thecross-examination reveals that he had no clear memory of surrounding circumstances of the accident. He was unable to remember what sort of party was to be held that day. He could not recall whether or not he had in fact been invited, or, for that matter, how he came to be accompanying Mr Hammoud on his shopping trip. He felt that he may have been visiting him. But he did not know. These concessions weaken somewhat the reliance that could be placed on his evidence about the fall itself. While the evidence of Mr Court, so far as it goes, confirms some parts of the appellant's version of events, it goes no further. In that sense, as the trial judge found, it 'added nothing' to that version other than to confirm that the appellant fell. The two aspects of the appellant's evidence which were rejected by the trial judge were the slipperiness or soapiness of the liquid, and his evidence as to the area. These aspects of the appellant's evidence were not confirmed by Mr Court's evidence nor, as the trial pointed out, by any other witness. It was therefore open to Lusher AJ to reject the evidence of the appellant on the facts crucial to his 10 UNREPORTED JUDGMENTS recovery, notwithstanding the failure of the respondent to attack Mr Court's confirmatory testimony. The material deficiencies in the appellant's case were not remedied by the evidence of Court. The above comments concerning the effect of the exclusion of the woman's statement also answer the next complaint by the appellant concerning the finding of the trial judge that there was no evidence as to where the liquid came from. The fact that Mr Court said that he saw 'the same liquid' on the lady's dress cannot answer the point that there was no evidence as to where the liquid came from. In any event, as the trial judge pointed out, Mr Court was not asked to and did not describe the liquid, the area, or the floor. The appellant's evidence about the liquid being soapy or slippery was thus unconfirmed. The trial judge's rejection of the appellant's evidence was plainly based on his assessment of the appellant's credibility. Therefore, this factual finding could only be sustained if the appellant's general argument that the adverse finding about his credit were successfully shown to be appealably wrong. As the appellant acknowledged, overcoming that finding was always going to be difficult given the repeated High Court authority binding on this Court. The remaining challenges to the factual findings of the trial judge in respect of the action against Grace Bros concern, with one exception, the medical evidence. In brief in deference to the argument of the appellant I will briefly review that evidence. However, it is important to bear in mind the purpose for which the factual findings are sought to be impugned. The issue in the case was not so much whether the appellant had a back condition, or even whether he had fallen in the Grace Bros supermarket, but what had caused it, and whether, if at all, the medical evidence helped to demonstrate that the appellant's version of events was true or otherwise. The appellant referred to the medical evidence for two purposes: (1) To demonstrate that the trial judge's finding that he had a pre-existing back condition, and thus his credibility was weakened, was erroneous; and (2) To demonstrate that the trial judge was wrong in failing to conclude that the medical evidence supported his claim that he had injured his back on the date asserted at Grace Bros, Roselands. Before reviewing this evidence, it is appropriate to remark that it would be quite wrong to assume that the sole or even the main basis of the trial judge's adverse finding about the appellant's credibility derived from his findings concerning the medical evidence. Clearly, in the circumstances of a case such as the present, the trial judge will be presumed by currently applied conventional theory, to have been influenced by the appellant's demeanour: see McHugh J in Abalos, (above). Certainly, the medical evidence was not the sole basis upon which Lusher AJ made express adverse findings concerning the appellant's credibility. Moreover, in respect of both matters (1) and (2), it is clear that the appellant must show that the evidence was clearly and overwhelmingly against the trial judge's conclusion, notwithstanding the advantages he enjoyed as the judge of trial. A review of the evidence leads to no such conclusion. The medical evidence The appellant gave the following evidence at the trial: Q. Prior to the first accident at Grace Bros, what was your physical health? A. Could you repeat that question again? Q. What was your health? Did you have an injured back, did you have an injured neck? WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANGE OFFICE OF NEW SOUTH WALES (Kirby P) Before the first accident? Yes. No. I was very healthy and I never complained to my family doctor about any back illness at all or any other serious illnesses. 'You may have had things like colds and the like? Yes. Anything else that you remember? Other than flu and colds, nothing. Had you had any other accidents before? No. rPOPOPO POP The relevance of this evidence for the appellant's credibility was that the respondent led evidence from Dr Bannerjee the medical records kept by him and his predecessor indicated that the appellant had, on numerous occasions prior to the date of the first accident, complained of back pain and had been prescribed various pharmaceuticals. It was part of the appellant's case at the trial, and in the appeal, that there was a possibility that the medical records of the appellant, and of his stepmother, had been confused. Before considering the detail of that evidence, it is necessary to make a preliminary observation. It is quite clear, as will become apparent, that at least some of the references to complaints of back pain must have been made by the appellant prior to the date of the first accident. Therefore, even allowing for the possibility that an entry for 1978 might have been a mistaken reference, which in fact concerned the appellant's stepmother and not the appellant, the substance of the trial judge's conclusion that the appellant's complete denial of pre-existing back complaints damages his credibility is difficult to fault. Lusher AJ dealt with the medical evidence, as it concerned the first accident, as follows: He had the benefit of an earlier history from that doctor's notes on 7 January 1978 that the plaintiff had "backache, neckache and chest pain". On 9 November 1981 there was a record of back pain and pain killer tables [sic] prescribed by Dr Bannerjee. On 13 December 1982 pain in the back again and he prescribed Indocid and a similar tablet. He wrote "x-ray" but there was no report, ie, that he had this back ache so it had to be investigated further. On 4 January 1983 he had right sided pain along LI and L2 and he gave him a Cortisone injection for relief of pain. I pause here to mention the Grace Bros incident was on 4 June 1983. On 8 June 1983 he received a history of "a fall on the floor' and he had pain in the dermatone of the LS — § | and gave him a three day certificate and later a week certificate. His Honour continued a review of the appellant's medical records. He also said relevantly: It was put to the Doctor by [counsel] in cross-examination that there was some confusion on the plaintiff's records and those of his mother [sic] and she was called without objection and gave evidence of having a needle and other treatment. The doctor did not accept the suggestion and in my opinion his credit was intact and I accept him as a witness of truth. Even so there are the other visits. The appellant seeks first to overcome the trial judge's acceptance of Dr Bannerjee as a witness of truth by contending that the doctor was giving evidence only from his notes and not from his independent recollection. Clearly, it is true that Dr Bannerjee relied on his notes and treatment cards in order to account for detail of the dates of the appellant's treatment and the nature of that treatment. The same was true of the treatment of the appellant and of Mrs Hammoud, the appellant's stepmother. However, Dr Bannerjee gave evidence that it was 'very 12 UNREPORTED JUDGMENTS unlikely' that he could have been handed Mr Hammoud's card in error by his secretary. The purpose of this question was to suggest to the witness,no doubt, that the entry on the card referring to back treatment was in fact a mistaken reference to the treatment of Mrs Hammoud. The trial judge was clearly entitled, accepting Dr Bannerjee generally as a witness of truth, to accept his assertion that such an explanation of the history of back trouble prior to the date of the injury to Mr Hammoud as Grace Bros was very unlikely. It became clear from Dr Bannerjee's evidence that Mrs Hammoud was certainly being treated for back complaints in the lumbar spine, specifically the L1-L2 area. She had in addition, according to Dr Bannerjee, a problem in the L3 area. Mrs Hammoud herself gave evidence to this effect. Counsel for the appellant at the trial, and on appeal, seized on the similarities of the complaints of the appellant and the earlier complaints of his stepmother to support a claim that the medical records concerning him had been confused with those of his stepmother, and that he had made no previous complaint about his back prior to his injury at Grace Bros. Specifically, counsel for the appellant pointed at the trial, and on appeal, to an entry on the treatment card of the appellant of 4 January 1983 which is in almost identical terms to an entry on Mrs Hammoud's treatment card of the same date. At the top of the former card appear the numbers '10.2.56'. This is the date of birth of the appellant. Underneath that are written in capitals "HAMMOUD HANI, 25 Mount Avenue, Punchbowl'. This is the name and address of the appellant. However, as counsel for the appellant points out, after the 'I' in the name "HANT', it appears that an 'E" hasbeen whited out. Underneath that appears the word 'HANIF' and directly under that word appears the word '(MOTHER)'. The highest that counsel for the appellant put the argument in oral submissions was that these two factors meant that there was 'real doubt' as to whether or not the remaining records referred to the appellant and not his stepmother. Yet, even if one were to accept that it was not open to the trial judge to find that the entry for 4 January 1983 referred to the appellant (and not to his stepmother) a more serious difficulty for the appellant remains. There are several other entries pre-dating the Grace Bros accident on the appellant's treatment card which indisputably refer to back problems. Thus, the entry for 7 January 1978 refers, inter alia, to 'backache' and 'neckache'. The entry for 14 October 1981 records 'pain in back'. An entry for 8 June 1982 refers to 'pain' in 'L1 and L3' (ie of the spine]. There is little doubt that the card referring to these latter entries must have been that of the appellant. Almost immediately below these entries appears the entry for 8 June 1983 referring to a fall on the floor at Grace Bros. The case for the appellant is therefore that, while undoubtedly this was the appellant's treatment card, the fact that there may have been some confusion concerning the entry for 4 January 1983 means that one cannot exclude the possibility that other entries were also mistakenly referring to the appellant and not to the appellant's stepmother. Having regard to the totality of the evidence, it was open to Lusher AJ to reject the appellant's arguments. Counsel for the appellant never put the case higher than one of 'real doubt'. It was well open to the trial judge to resolve that doubt and to find that the appellant had suffered a pre-existing back condition. The attempt by the appellant to impugn exhibitstendered in his own case at the trial fails. Lusher AJ made no error, susceptible to th is Court's correction, in so finding. It was therefore open to him to reinforce his adverse finding concerning WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANGBS OFFICE OF NEW SOUTH WALES (Kirby P) the appellant's credibility by reference to the unconvincing denials about a pre-existing back disability of some kind preceding the fall at Grace Bros.. Another ground of appeal, and other challenges to factual findings, relate to a contention by the appellant that Lusher AJ had failed to have sufficient or proper 5 regard to the other medical evidence. That evidence could only be relevant to the anterior question of liability with respect to the action against Grace Bros if it were to show that the appellant did not have a pre-existing back condition, and that his back condition was caused solely by the trauma of the slip at Grace Bros. If the trial judge could be shown to have been in error in failing to draw this 10 conclusion, his finding concerning the appellant's credibility might require reconsideration. But the medical evidence, viewed as a whole, reveals no such thing. Although counsel for the appellant complained of the lack of reference to the 'other evidence', counsel himself only referred in any detail to the evidence of one Dr Conrad. A review of that evidence, bearing in mind its limited 15 relevance, reveals no grounds for complaint. Counsel for the appellant correctly pointed out that Dr Conrad who described himself as a 'general surgeon with orthopaedic interests' and whose expertise was not challenged, gave evidence that an X-ray showed that the appellant was suffering from a spondolysthesis in relation to the area L5/S1. However, for the purposes of determining whether or not the appellant had a pre-existing back condition, the burden of Dr Conrad's evidence, as it emerged in cross-examination, was that it was equally likely that the appellant's spondolysthesis was congenital in origin as thatit was traumatic. This opinion may be demonstrated by the following exchange: Q. A. Q. A. What was his condition before he fell over at Roselands as best you can determine from your two examinations of him? Well, he did not have any symptoms prior to his fall and in the absence of any x-rays prior to this fall, one is not in a position to determine whether his spondolysthesis was congenital or traumatic. I suppose the probabilities are equally in favour of either alternative, are they? Yes, it could be either one. Dr Conrad further conceded that any attempt to link the appellant's condition with the fall at Grace Bros would be dependent upon an acceptance of the truthfulness of his complaints. Otherwise it would be a matter for speculation. This is borne out by the following evidence during the cross-examination. Q. Op OPOrPor Would you assume please the following historical facts: In November 1981 this man is prescribed Brufen for serious back pain. In December 1982 he is prescribed Indocid for a similar condition, that is for serious back pain. That he has a fall in June 1983 of some kind. Yes. Assuming further on the radiological picture you have from the studies to which you are privy in this case, and disregard any history that you would have received from the subject. In those circumstances would it be reasonable to suggest that when this spondolysthesis became symptomatic, if indeed it is truly symptomatic, is a matter of speculation, that is as to when it occurred if at all during that entire period down to the present day? Yes. On those facts only? Yes, I understand that. And nothing else? Yes. It would be a matter of complete speculation? 14 UNREPORTED JUDGMENTS A. Yes. So far from confuting the remarks of Lusher AJ, as the counsel for the appellant submitted, the evidence of Dr Conrad vindicates those remarks to the effect that the medical evidence was to be treated as largely dependent upon the veracity of the patient's reporting of his history and symptoms. Upon that basis the medical evidence was unhelpful unless it could amount to proof of the likelihood that the subject injury was the cause or at least had been aggravated by the accident in question. Cf Schembri v Government Insurance Office of New South Wales (Unreported, NSW Court of Appeal, 16 April 1995) per Handley JA (Meagher and Powell JJA concurring), at 4-6. The mere fact that Dr Conrad was unshaken about his diagnosis of a spondolysthesis as a result of his examination of the appellant's X-ray does not therefore carry further the appellant's case on impugning the adverse finding of credibility by the trial judge. Indeed, it appears that it was common ground between the expert medical witnesses for the appellant and the respondents that the appellant was suffering from a spondolysthesis. The evidence of Dr Edwards, an expert for the respondent, was also to that effect. The issue in contention was not thediagnosis of the condition but the link, if any, of the accident at Grace Bros with it. None of the other medical evidence assists the appellant as to the first accident nor, indeed, as to the second. Indeed, the medical evidence called on behalf of the respondent clearly provided, if anything, further material upon which to base an adverse finding concerning the appellant's credibility. Thus, a report of a Dr Kim Edwards, a relevantly qualified surgeon, dated 4 December 1986 concludes as follows: Iam unable to find any objective clinical evidence of any disability on examination of this man. He complains of pain in his neck and lower back. In my opinion his complaints do not have an organic basis, and cannot be attributed to his alleged fall in June 1983, nor to his motor vehicle accident in 1984. He does have a degenerative lumbo-sacral disc, which could cause discomfort on occasions. A written report of Dr Silver, dated 6 April 1987, makes the following conclusions, inter alia: I do not think that this man has any cervical or lumbar radiculopathy. There was a noticeable attempt at restraining especially neck movements and restraining leg raising. I think there is evidence to suggest that he is feigning continuing orthopaedic illness. He does not require surgery, further injections, or physiotherapy.' (emphasis added) The conclusion in the first appeal The appellant has therefore failed to demonstrate that the trial judge's use of the medical evidence in reinforcing his adverse conclusion as to his credibility was misplaced. There is nothing in the balance of the evidence which requires a contrary conclusion. In this case, the demeanour of the appellant as a witness must be taken to have contributed to his Honour'sadverse finding as to the appellant's credibility. In any event, there were at least some objective indicia of the appellant's lack of complete credibility in the evidence. For instance, as the trial judge found, the appellant's employment records appear to show that, after the incident, he did not (as he claimed) take a few days off work. The appeal against the judgment in favour of Grace Bros fails. The conclusion in the second appeal WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANGB OFFICE OF NEW SOUTH WALES (Kirby P) It will not be necessary to consider the second appeal at any length. Counsel for the appellant in this matter rightly conceded that a primary issue in that case was whether or not the appellant was in the car at the relevant time. Mr Chiami, whom the trial judge accepted as a witness of truth, gave evidence that the appellant was not in the car. His Honour reached conclusions adverse to the appellant's credit. There is nothing in the other evidence to suggest that the trial judge's conclusion was not one which was open to him. It was the appellant's case at the trial that the driver of the other car, Mr Chiami, had struck the appellant's vehicle while the appellant was attempting to park his car on the left hand side of the road. According to the appellant's version of events, his car was at an angle to the footpath of approximately 30-35 degrees when Mr Chiami's car, which was allegedly travelling on the wrong side of the road at the time, struck the appellant's car on its right hand rear side while the appellant was attempting to park it. Mr Chiami admitted responsibility for the accident. He signed a statement to that effect, which was exhibit B in the proceedings at trial. In that statement, Mr Chiami admitted that he 'hit Mr Hani Hammoud's car before and created a damage to the rear car part of the car. It is my fault and I will be responsible for all damages incured (sic)'. The claim by the appellant that he was parking the car when the accident happened is important. On appeal, counsel for the appellant has sought to draw attention to the concessions in Mr Chiami's evidence that he was not specifically looking at the appellant's car until after the impact. I cannot accept that it follows from this that Mr Chiami would therefore not have noticed the appellant in the car, or that he would not have noticed that the car was some 30-35 degrees out from the kerb and in the process of parking. Even if these obstacles could be overcome, it does not assist counsel for the appellant's apparent attempt to suggest an intermediate version of events which does not require the overturning of the trial judge's acceptance of Mr Chiami as a witness of truth, and the trial judge's rejection of the appellant's credibility. Mr Chiami gave the following evidence about the events after the accident: Q. At the time your car hit that parked car, was there any person in that parked car? A. Definitely not. Q. Did your car come to stop after colliding with a parked car? ... A. Yes, smashed the car, my car. Q. What did you then do? A. I went out of the car to have a look at the damage on my car and the other car and just my car was on the wrong way. I lock up the traffic, you know what I mean. Q. You were on the wrong side of the road?A. Yes, exactly. Q. So what did you do? A. I just did have a look and this was my first accident and I got a shock. There was another passenger with me, he was over in New Zealand. We used to work together and I gave him a lift. Where is he now? I don't know, so he is the one moving the car when Mr Hammoud came out of the shop and went to get, like to bring paper and sold to him or whatever. 'You say Mr Hammoud came out of the shop? Yes. rO PA UNREPORTED JUDGMENTS Q. Did he say anything to you or you to him after he came out of the shop and you were near his car? A. Actually, I said, I explain what happened and I said, "it's my fault and I am ro > 2 responsible and I", you know. He said, "okay, okay. Come with me inside. I want to do everything the proper way". And he asked a girl there, there like in his agency, tax agency or something, to print, to take my licence and everything and she prints and I did read it what she has done, like all my responsibility and this and that. And he said "sign here" and that's it. [This was exhibit B.] How long after your car hit the parked car did Mr Hammoud come out of the shop? How long did he come out of the shop? You think it was about a minute? Exactly'. (emphasis added) This may be contrasted with the appellant's version of the events which occurred directly after the accident which included the following: rOPOPO POPOPOPOPOPO PO What did you do? I got up out of the car and waited for Mr Chiami to come in his — he pulled over and came to see if I was alright. Were you in or out of the car at that stage? I was in the car. At the time he struck you, where were you? I was in the car. What were you doing? Driving. Did you get out of the car? Yes. At any stage? Yes. When? Immediately after the accident took place and I got out of the car and waited for him at the footpath. He was coming. As he was coming to see how I felt, I got out and we both stood at the footpath on the same side as the accident had taken place. Stood where? At the footpath. On the footpath? On the footpath, yes. Did you have a conversation with him? Yes.' (emphasis added.) These conflicting versions of events required the trial judge to find between the witnesses on the basis of their credibility. As there was no objective means of choosing between them, the judge had to do so. Lusher AJ said concerning Mr Chiami: At this point I should state my finding that I accept Chiami completely as a truthful witness not only from his demeanour and frankness but also for his remoteness from the context. He personally had nothing to lose from this case. No demand was made on him for further payment of the car damage. I accept his version of the incident and find that as the plaintiff was not in the car at the time of the collision and suffered no injury or damage therefrom and reject the plaintiff's contention that the collision occurred as he alleged. WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANGE OFFICE OF NEW SOUTH WALES (Kirby P) As to the appellant's credibility, many of the matters going to the legitimacy of the adverse conclusion concerning the appellant's credibility have been set out above. But, in addition, Lusher AJ made the following observations which pertain particularly to the second action: For the present purposes, ie of credit, (there were visits in between) the next relevant visit was 1 November 1984, the first visit after the car incident on 3 August 1984 and he complained of backache but there was no mention of a motorcar accident. There were no visits from 1 November 1984 until 3 April 1989. The doctor's note then is "Attended after six years still has pain in L5-S1 region'. And he noted that he had seen orthopaedic specialists and others. He elaborated this later by reference to the plaintiff making "a workers" compensation case" and he wrote "attended today after six years as he has a case going". The doctor thought there must be something very relevant so he has come to see him after six years because somebody who is a lot of pain or distress should consult the original doctor and not just stay put for six years. None of these observations was the subject of specific challenge in the second appeal. The attempts to use the medical evidence in the appellant's favour have been discussed above in relation to the first appeal. The trial judge concluded that the 'above matters present a formidable challenge to the plaintiff's credit'. There were yet more grounds in the view of the trial judge for making an adverse finding concerning the appellant's credibility which were not even dependent upon an acceptance of Mr Chiami. Another passage in the judgment which was not the subject of challenge in the second appeal was the following: There is one remaining matter in relation to the car incident. To some doctors who examined the plaintiff, the history given respectively was that his car was hit from behind, hit from the rear with a fair degree of force, that a smaller car had run into the back of his car, and that a car collided with the back of his car while reversing. These were put to the plaintiff by Mr Williams. His original answer was that he didn't recall giving such descriptions, later he denied them and said he would not have so told them. These submission of Mr Williams was that these histories were consistent with the view that the plaintiff did not really see or know what happened because he was in the shop. Clearly the trial judge accepted this submission. The other important passage in terms of medical evidence and the appellant's credibility with respect to the second accident has not been successfully challenged either. That passage in the judgment below reads as follows: He next saw the doctor on 1 November 1984 three months after the alleged motor car accident for backache but made no mention of any motor vehicle accident. In addition to all of the above matters going to the appellant's credibility, there is the matter of the further evidence given by Mr Chiami. According to Mr Chiami, the matter was settled a few days later by the payment of $150 to the appellant. Mr Chiami then gave evidence that the appellant visited him again at his business five years later, in late 1989. After they had exchanged certain introductory remarks, they had, according to Mr Chiami, the following conversation in Arabic: Q. Then did he say anything after that? A. He asked me for a favour. Q. What did he say? 18 UNREPORTED JUDGMENTS > He said, "Mr Mohammed Amin, can you do me a favour"? I said, "what sort of favour"? He said, "If my solicitor contacts you about that accident will you talk to him"? I said, "About what? Do you need any money from me or something"? Q. What did he say? A. He said, "Not about a car, the car, I sold it and nothing is to do with you but Iclaim for a working compensation and he need to contact you, my solicitor". Q. What did you say? A. I said to him, "What about working (sic) compensation? It is your car was parked and I hit your car and I did pay you. I didn't heard from you and it is all over so what do you want from me"?Q. What did he say? A. He said, "Look, there is nothing to do with you. I have accident with Grace Bros." Q. "Thad an accident with Grace Bros?" A. But I claimed that accident which had happened with me because it is helping. Q. What did you say? A. I said, "How come it is going to help you if your car was parked and you didn't hurt at all? You are not even in the car". Q. What did he say? A. He said, "Look, why don't you help me? I can't understand that but why don't you help me? You are not going to lose anything out of your pocket just talk to my solicitor and see what he wants". Q. What did you say? A. Isaid, "You are crazy". I told him a couple of tough words just "Go out of the factory, I don't want to see you around here". Things like that. Q. What did he say? A. He said, "Sorry, sorry, Mr Mohammed Amin Chiami. I apologise" and he walk out. Standing on the front of the factory before he get into the car he said, "Just, please, if my solicitor contact you talk to him nicely". Q. Did he make any mention to you of the Lebanese people? A. He does, yes, mention, like. Q. What did he say? A. He said, "You talk to my solicitor" and I told him "You are not even in the car and you are crazy and I can't help you and I want for you to tell the truth." He said, "Well don't you think you got to help me because we are Lebanese and you are losing nothing out of your pocket and I want from you just talk to my solicitor". Q. Was [there] any discussion about money? A. Without mentioning any number of money but he said he is willing to pay all the costs for me and for all the trouble it will cost me. As the trial judge observed, the appellant in cross-examination denied this version of the conversation. However, he admitted that he did visit Mr Chiami. He claimed that he did this because the certificate his solicitorshad obtained of the registration number of the car did not show Mr Chiami as the owner. Concerning this evidence the trial judge, having accepted Mr Chiami as a witness of truth, found: I find the later conversations were as Chiami testified. On these findings together with the other challenges to the plaintiff's credit all of which I find established without question, the plaintiff's credit is left in tatters. The accumulation of all of these matters makes it unnecessary to pursue the evidence concerning the appellant's other work history, his financial records, and other matters going to his credit. It is quite clear that the trial judge's findings in respect of this second matter, which as both parties acknowledged, turned on the issue of whether or not the appellant was in the car at the relevant time, are quite WRAMMOUD v GRACE BROS PTY LIMITED; HAMMOUD v GOVERNMENT INSURANGB OFFICE OF NEW SOUTH WALES (Powell JA) impervious to appellate alteration. In Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ said (omitting references): If a trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". Lusher AJ's relevant conclusion in the second case was amply justified on the evidence. It was grounded substantially in the judge's credibility finding based on his assessment of the appellant and Mr Chiani. As such the challenge to it does not come close to satisfying the stringent test setout in Devries for the intervention of this Court. The second claim must also be rejected. Conclusion The orders which I favour are: 1. Both appeals dismissed; and 2. The appellant to pay the respondents" costs. Handley JA. I agree with Kirby P. Powell JA. I agree with Kirby P. Appeals dismissed with costs. Counsel for the appellant: J A Crumpton QC and K Andrews Solicitors for the appellant: G H Healey and Co Counsel for the respondents: J W Conomos Solicitors for the respondents: R J Walters: Solicitor for Government Insurance Office of New South Wales