MICHELSON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 27 June 1995, 24 August 1995 [1995] NSWCA 291 NEGLIGENCE — MOTOR VEHICLE ACCIDENT — FINDINGS OF FACT — NO QUESTION OF PRINCIPLE. The plaintiff was injured in a motor accident in 1986. She returned to work within four days, staying at work with some breaks till 1990. As late as 1989 she was playing tennis and squash regularly. In the meantime she married, was expecting a child and had taken seven overseas holidays. Following the accident her general practitioner diagnosed mild concussion, a cervical spinal whiplash and bruised knees. Because of continuing complaints of headaches she was referred to a specialist, who advised physiotherapy and medication, stating that her symptoms should subside with time and that "she should be able to manage her general activities quite well". In 1992 her solicitors listed nine injuries and thirty continuing disabilities. With the exception of her bruxing (teeth grinding) her continuing post accident symptoms lacked objectively demonstrable support. The judge found that she consciously exaggerated much of her evidence, which was inconsistent with the evidence of two teachers at her school, her employment records, and the histories given to doctors. He rejected the bulk of the plaintiff's case. The plaintiff sought a new trial, claiming errors in the judgment and ostensible bias by the judge. Held: There was no substance to the claim of ostensible bias, and any errors in the reasons of the trial judge were immaterial and not such as to cause any substantial wrong or miscarriage within SCR Pt51 R16(1)(d). ORDER Appeal dismissed with costs. Meagher JA I agree with Handley JA. Handley JA This is an appeal by a plaintiff from a judgment of Mahoney DCJ assessing her damages at $24,202.56. The plaintiff while in her stationary vehicle was injured as a result of a rear end collision on 19 October 1986. She was thirty eight at the time, a teacher, and single. She was able to return to work within four days and remained at work with some time lost and with breaks for holidays until taking maternity leave in February 1990. As late as January 1989 she told Dr Frith that she was currently playing squash once a fortnight and tennis weekly (228). In the meantime she had taken seven overseas holidays, including one from 24 December 1986 to 16 April 1987 which included travel to Japan, Africa and the United States, married, had abortions because of suspected genetic problems in the foetus, and was expecting the child that she had in April 1990. Following the accident she consulted Dr Walker, her general practitioner, on 23 October 1986. He diagnosed mild concussion, a cervical spinal whiplash and bruised knees. The plaintiff declined to have a cervical ex-ray at that stage. In November 1986 because of continuing complaints of headaches she was referred to Dr Garrick, a consulting neurologist. In his report he said her continuing symptoms were related to her cervical ligamentous and facet joint disturbance which should gradually subside in time. He thought some further courses of 2 UNREPORTED JUDGMENTS physiotherapy would help and advised appropriate medication. He thought she should avoid aggravating sporting activities but said that "she should be able to manage her general activities quite well". When her amended particulars under DCR Pt12 R4A were filed on 2 June 1992 her solicitors particularised nine injuries and thirty continuing disabilities as a result of her accident. With the exception of her bruxing (teeth grinding) her continuing post accident symptoms were subjective. As the Judge said "Generally speaking the pith and substance of her claims are lacking any objectively demonstrable support." He rejected the bulk of the plaintiff's case. Her allowed $15,000 for general damages on the basis that although she only lost a few days from work she probably worked in some discomfort for some of the early months after the accident and that some small component of her continuing psychological woes may be referable to it. He allowed special damages of $8,901.46, the largest item being $7,800 for fees due to the plaintiff's dentist, Dr Keller who had treated her bruxing. The Judge found that the plaintiff had consciously exaggerated much of her evidence. He also referred to many inconsistencies between her evidence and other evidence especially that of two senior teachers at her school and her employment records. He also referred to inconsistencies between her evidence and histories given to doctors and to her failure to disclose relevant matters in her histories. He said he was only able to place "scant reliance" on the plaintiff as an accurate historian. As a result of these findings he rejected the medical evidence in her case which was not based on completely objective symptoms. There was no dispute that by the time of trial the plaintiff was suffering from significant psychological problems. The Judge said: [1] "One only has to listen to her story and especially the way she unfolds it to realise that the future for her is grim in many respects - for reasons wholly unconnected with the accident." The Judge rejected claims that she had suffered organic brain damage and a personality change as a result of the accident. Indeed, he appears to have rejected evidence that the plaintiff had brain damage. In relation to her bruxing the Judge thought that the most favourable view for her was that she may have sustained an aggravation to a predisposition to bruxism but found that the continuation of bruxism over several years was not a result directly or indirectly of the accident. The Judge was not impressed by the evidence of Mrs West, a teaching colleague of the plaintiff, which he said was not all that convincing and had been significantly eroded by the oral evidence of the plaintiff's two senior colleagues and her employment records. He also discarded the evidence of the husband who, with Mrs West, had supported to the hilt the plaintiff's claims of personality change and work and social impairment. The only medical practitioner to give oral evidence was Dr Keller, the plaintiffs dentist. The Judge thought that his evidence was unsatisfactory in many respects and said this impression was confirmed by the reports of Dr Wilson, another dentist qualified for the plaintiff. The relief sought by the plaintiff in this Court was a new trial. Senior counsel for the plaintiff accepted, as he had to, that this Court could not disturb the Judge's credibility based findings. The claim for a new trial was based on a number of alleged errors in the judgment but principally upon alleged ostensible bias said to have been manifested by the Judge during the hearing, waived at that stage, but revived by his reserved judgment. Compare Vakauta v Kelly (1989) 167 CLR 568. We were referred to a considerable number of passages in the transcript said to demonstrate ostensible bias. I have read all these references WROHELSON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Handley JA) with some care. In my opinion they showed nothing of the kind. A number of the interventions were for the purpose of seeking clarification and a number assisted the plaintiff. The second passage referred to (64G) was as follows: [2] "Q. And I clearly illustrate what I want to ask you some questions about. [3] HIS HONOUR: How about asking questions and leaving your final submissions until later. This lady has Majors in History and English; she has also studied Psychology. If she does not understand your question, she will tell you." This intervention occurred during cross-examination. Another passage referred to (82K-83Q) commenced with the Judge pointing out to counsel for the defendant: [4] "I think it is fair to state this. Mr Sutherland, I do not want you to feel embarrassed about this, but your cross- examination has been very staccato and quite a lot of your questions have been put together with complex syntax which you have then abandoned and withdrawn and come at the witness again with more complex syntax. Any questions, even the complex ones, have been delivered in a staccato fashion all of the time." Another reference (135L) involved the Judge intervening during cross-examination to take a short adjournment because the plaintiff said that she was very tired and had lost concentration. I reject completely the appellant's claim that the Judge's interventions during oral evidence manifested ostensible bias. The appellant also relied upon a number of alleged errors and other matters in the Judge's reasons, either as demonstrating ostensible bias or as independent grounds for ordering a new trial. In my opinion there is no substance in the former contention. The wholesale rejection of a party's case does not establish ostensible bias. This is especially so where this Court is not in a position to review the Judge's credibility based findings. The appellant's case must therefore depend upon alleged errors in the judgment. The first relied on was the Judge's statement that the evidence of the plaintiffs husband and Mrs West could only be of probative value if it supported the plaintiff's evidence but in that event "their level of acceptability is no greater than hers". This was said to involve a misdirection of law by the trial Judge but in context his Honour was making a statement of fact. His remarks were directed to "a case such as this" namely a case where the plaintiffs evidence conflicted with the earlier medical reports, her own conduct and the objective facts over the next four years, and with the evidence of senior colleagues and her own employment records. In my opinion no error was shown. It was submitted that the Judge's rejection of Dr Keller's evidence was perverse and infringed the rule in Brown v Dunn because he relied on reports by Dr David Wilson, another dentist who qualified for the plaintiff which were not put to Dr Keller in cross-examination. There is nothing in these points. The plaintiff's legal advisers were aware of the contents of Dr Wilson's reports which were obtained by her solicitors but tendered by the defendant with other reports at the start of the proceedings before any oral evidence had been called. Dr Wilson's reports were highly critical of some of Dr Keller's opinions and his proposal to undertake dental treatment for the plaintiff's bruxism at a cost of $23,000. There was ample material before the Judge, both in Dr Keller's own evidence and in other material, which entitled him to reject his evidence and there is no substance in the Brown v Dunne point. The appellant also relied upon the inconsistency involved in the Judge's allowance of Dr Keller's account for $7,800 but this related to a closed period to 28 March 1992 and was allowed only with "considerable misgivings". 4 UNREPORTED JUDGMENTS The Judge was criticised for stating that some of the plaintiff's medical experts lacked professional objectivity because this was not raised during the hearing and in particular was not raised with Dr Keller. The only example expressly identified by the Judge was Dr Frith but his reports support the Judge's comments. The Judge may also have intended to refer to the reports of Dr Langeluddecke whose reports he had previously rejected. She did not give oral evidence but her reports have been criticised by Dr Chadwick in her reports and her criticisms were supported by Dr Dent, a psychiatrist qualified for the plaintiff. The appellant also relied upon errors when the Judge said that the only photographs tendered to show the plaintiffs slender body proportions before the accident were taken more than three years before and that no attempt had been made to cut down Mrs Dyer's evidence that on the day of her marriage on 11 December 1988 the plaintiff "looked stunning". It is clear that the Judge did mistake the evidence in relation to the photographs because at least one was taken in 1986, only one year before the accident although other photographs had been taken earlier. However the Judge's statement that no attempt was made to cut down Mrs Dyer's evidence about the appearance of the plaintiff on her wedding day is strictly correct although Mrs Dyer in cross-examination did agree that the plaintiff had put on weight after the accident. However this failed to establish any causal link between the accident and the weight gain when one considers that during this period the plaintiff had three pregnancies, was getting older, and according to Mrs Dyer before the accident was always going on diets. Any errors in the reasons of the trial Judge were immaterial and not such as to occasion any substantial wrong or miscarriage. See RSC Pt51 R16(1)(d). In my opinion the appeal entirely fails and should be dismissed with costs. The appeal had earlier been fixed for 28 April, that date being vacated by the Court on 24 April. Mr Morison SC applied for a certificate under the Suitors Fund in relation to the costs of both parties thrown away by the vacation of the earlier hearing date. However the case does not appear to fall within s6A of the Act. It may be a case in which the Secretary would be prepared to act pursuant to s6C but that is not a matter for the Court. In my opinion the only order that should be made is appeal dismissed with costs. Powell JA I agree with Handley JA. Appeal dismissed with costs. COUNSEL: Appellant: AS MORRISON SC/DJ HOOKE Respondent: V HUGHSTON SOLICITORS: Appellant: STACKS - THE LAW FIRM Respondent: GM MEADOWS