OREC v NEGDET SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, PRIESTLEY JA 5 December 1995, 28 March 1996 [1996] NSWCA 412 Motor vehicle accidents — Negligence admitted Two cases heard together — Small awards of damages — Credibility of witnesses — Review of findings by Appeal Court — Use of collateral evidence of other actions of witnesses APPEAL FROM DISTRICT COURT — Motor vehicle accidents — Negligence admitted — Trial by judge — two cases heard together — Small awards of damages — Appeals against quantum — Credibility of witnesses — Basis of assessment by trial judge. — REVIEW OF FINDINGS BY APPEAL COURT — Inferences to be drawn from medical evidence, from evidence of witnesses, and from collateral evidence. — USE OF COLLATERAL EVIDENCE of other actions of witnesses in assessing witnesses' credit — Error in admitting collateral evidence in the proceeding. — SHOULD A RETRIAL BE ORDERED? — New trial should be ordered. ORDERS 1. Appeal upheld, judgment set aside. 2. New trial, limited to assessment of damages. 3. Respondent to bear appellants' costs of appeal. 4. Costs of first trial to abide result of new trial. Mahoney P On the evening of 16 August 1989 a motor vehicle accident occurred in which Mr Mato Orec and his wife Mrs Bozica Orec were involved. A motor vehicle driven by the defendant Mr Negdet struck the motor vehicle in which they were riding. It is accepted that the defendant was negligent. Mr and Mrs Orec each brought separate proceedings against the defendant. On 31 August 1994, his Honour Judge Mahoney gave judgment for Mrs Orec for $266 and for Mr Orec for $2066.55. Each of them has appealed to this Court against those judgments. At the trial and before this Court, the two proceedings have been dealt with together. No point has been taken in relation to the adrnissibility of the evidence other than that to which I shall refer. The contextual facts by reference to which the appeal is to be determined are not significantly in dispute. Mrs Orec was driving the motor vehicle in which she and her husband were riding. She stopped in obedience to a road traffic control light at an intersection. While the car was stationary the car driven by the defendant "collided with the rear of their car". His Honour said: "There is some evidence to the effect that the car containing the plaintiffs was pushed 50 metres from where it was stopped in obedience to the traffic lights but this is fairly clearly an excessive estimate. There is no dispute about the fact, however, that it was a substantial collision." An ambulance was called. The male plaintiff claimed that he was unconscious for a time "until about the time the ambulance arrived" and he "was suffering from a severe headache and experienced ringing in his ears". Both plaintiffs were 2 UNREPORTED JUDGMENTS taken to Auburn District Hospital. Examination disclosed no fractures. "They were provided with some analgesic tablets and after three or four hours their adult son arrived at the hospital and took them home". There was however considerable dispute as to the effect which the accident had upon each of the plaintiffs. It is not possible adequately to summarise the claims made in this regard by the plaintiffs in their oral evidence. They each - Mr Orec in particular - detailed a wide variety of signs and symptoms. In his written submissions, Mr Poulos QC, for the defendant, said: "Mr Orec described "something like an explosion, something had broken on my neck' and a loss of consciousness which he says he regained when the ambulance arrived at the accident. He said he could not move his head because there was a collar around his neck. He had a severe headache and ringing in his ears. The next day, he was in very bad pain. He could not swallow for three months, he had a very bad noise in his ears (which he still experiences but not to the same extent), a pain in his left shoulder blade and a severe headache which lasted more than a month and a half. Mr Orec says that he gradually experienced more and more pain, such that even if the factory at which he had worked had not closed down he would not be able to work. He had pain in his head, left hand, arm and left leg. In describing his present condition, Mr Orec said that he had some improvement because he had less noise in his head, and his pains from time to time had improved, but other times they are more severe, and now he has more pain in his left leg. He has pain on the left side of the neck and the left shoulder. He still has headaches including big headaches where the pain spreads through his body down to the left leg and numbness in the left leg. He says that he cannot lift more than two or three kilograms with his left hand. Mr Orec said that the pains in his neck and shoulder are still there, only the movement of his neck has improved. His left leg is getting worse. Mr Orec described himself as not capable of working. He says that he limps all the time. He said that the restriction of movement in his neck which he displayed in Court was always the same. Mrs Orec's evidence is that when the accident occurred, she heard some sort of small explosion and felt like she went into a deep hole. She says that after the accident she had a big lump at the top of her spine. She could not walk properly with her left leg and she had very strong pain. Mrs Orec stated that her current problems were with her back, her head and her neck. She said that she had pain in the back of her neck and it feels like someone is punching her in the left eye. Sometimes she cannot get out of bed for eight days. Her neck is painfull but she thinks it is from the lump and the headache. The pain is there constantly. At times she can bear it and at times she cannot. When she gets these pains she feels as though she is 200 kilograms heavy. 'It is like a current going through me, it's like it's taking me apart'. Mrs Orec says that when she gets bad pains she is certain that she will not be able to do much for seven or eight days. She says that the motor vehicle accident left her with very strong pains in her body. She says that normally she is in bad pain." What is there said provides some indication of their claims. However, the nature and extent of them can be appreciated only by a reading of the evidence. The plaintiffs were each examined by or treated by a number of doctors. Evidence from a number of doctors was tendered at the trial. The medical evidence was directed to a number of complaints. It was directed, inter alia, to the URJ OREC v NEGDET (Mahoney P) 3 effect of the accident upon the condition of the spine of each of the plaintiffs: that in the end was one of the main matters involved. The evidence was, to an extent, inconsistent. In relation to Mrs Orec, his Honour concluded that the degenerative state of the spine "is more advanced now and more symptomatic than it would have been but for the accident". But he found that "the extent of so much impairment as she does suffer as a result of the motor vehicle accident has been distorted by the way she has presented to the various doctors and to the court". He held that, for the purposes of s79 of the Motor Accidents Act 1988, she was not "significantly impaired" by the accident. His Honour held also that Mr Orec's evidence had been exaggerated and misleading, that there were gross inconsistencies between his physical demonstrations in court and what was captured on a film placed in evidence and that he had "failed to make out a case of entitlement under s79 of the Act". It is to be recorded that counsel are agreed that the Court need not view the video evidence. Both counsel have invited the Court to adopt and act upon the findings of the trial judge as to the video evidence, as recorded in his judgment and as applied by him. The amounts awarded to Mr and Mrs Orec by the judge represented essentially the relevant portions of the out-of-pocket expenses incurred by them. Mr Andrews, for the plaintiffs, submitted that the learned judge had erred in respect of a number of matters. His submissions may be conveniently dealt with by reference to the following contentions: 1. That his Honour erred in rejecting the plaintiffs as witnesses of credit; 2. That his Honour erred in his assessment of the non-economic loss of the plaintiffs and accordingly in his application of s79; 3. That, in assessing Mr Orec's economic loss, his Honour failed properly to take into account the effect of the injuries he suffered upon his working capacity; and 4. That, in calculating the out-of-pocket expenses to be awarded in respect of treatment by a Dr Bannister, his Honour wrongly disallowed amounts which should have been included in the damages. I shall deal with the submissions made by reference to these contentions. 1. THE CREDIBILITY OF THE PLAINTIFFS AS WITNESSES: Mr Andrews' submissions in this regard were directed mainly to two matters: (a) the findings of the judge as to evidence directly relevant to the issues before him; and (b) his findings in relation to (as they have been described) "the collateral matters". (a) The trial judge made findings against the credibility of the plaintiffs and made those findings in strong terms. Findings of this kind are, of course, important in determining the outcome of the present proceedings. But they may have effects apart from their effects in these proceedings. I have therefore examined the nature of the findings made and the basis on which they were made. It is not necessary to detail all of the relevant matters: I shall confine what I say to the main aspects of the judge's findings in this regard and the bases of them. The judge, early in his judgment, made specific findings as to "the plaintiffs as witnesses". His Honour said: "There is a plethora of evidence against each plaintiff both on matters directly associated with this accident AND ON MATTERS COLLATERAL THERETO, for example concerning the property damage accident earlier in the morning of 4 UNREPORTED JUDGMENTS 16 August 1989, its severity, how long it was before Mrs Bozica Orec spoke to Mr Mato Orec about it, and when he first became aware of it, which leads me to the conclusion that neither plaintiff in this case could be relied upon implicitly as a witness of truth. In my view they ought only be respectively believed when their respective versions of any matter about which they gave evidence is capable of being corroborated by a source other than the other spouse and in any event by a source over which they are not able to exercise any control or influence. There are so many inconsistencies in the evidence of each of them that they must be seen to be most unsatisfactory and unreliable witnesses. In the witness box, they gave answers of convenience on many occasions and the demeanour of neither was such as to inspire confidence or reliance on any evidence they gave. On behalf of Mrs Bozica Orec it was submitted in final address that she had not made any attempt to embellish her complaints or to exaggerate, and that people such as the two plaintiffs sometimes put their best foot forward when seeking to recover damages. In my view she has indeed embellished and exaggerated in her quest to recover damages and has done so knowingly. Allowance is always made for litigants who emphasise symptoms lest the court does not take their complaints seriously enough. That proposition however, is not one which applies to either plaintiff in these two cases. In short, I accept the submission of learned senior counsel for the defendants that the evidence of both plaintiffs is unreliable." (Emphasis added). In addition, during the course of his long and detailed judgment, the judge referred to aspects of the matter which appear to have influenced him in forming such an assessment of them. I shall refer to some of the more important of them. The judge had before him in this regard evidence of various kinds: the evidence provided by medical witnesses; the evidence of the plaintiffs themselves; and the video evidence. I shall refer to each of them in turn. There was, on the evidence of medical witnesses in respect of the respective plaintiffs, evidence which could lead the judges to conclude that what they told various of the doctors was not accurate. The judge could infer that they were each exaggerating and/or misstating the effect of the accident upon them. In considering the effect of the accident upon Mrs Orec, his Honour took into account observations made by some of the medical witnesses, eg, Dr Chan, which suggested that what she had said during examination and what she had done was inaccurate, exaggerated or distorted. For example, one of the main matters complained of by Mrs Orec was that she had developed painful symptoms of a previous asymptomatic condition of her spine. Her complaints were many and varied but it was accepted that she had had an underlying degenerative change in her spine and the judge concluded that the accident had aggravated her pre-accident asymptomatic degenerative condition. His Honour saw the case as involving, in the main, the determination of the extent of that aggravation and the duration of it. He concluded that the solution of that problem "is rendered the more difficult because she is not a reliable medical historian or witness". He accepted that her degenerative state "is more advanced now and more symptomatic than it would have been but for the accident" but held that he could not accept her "subjective complaints" as "a true benchmark of such aggravation". His Honour said: "The extent of so much impairment as she does suffer as a result of the motor vehicle accident has been distorted by the way she has presented to the various doctors and to the court. She is no stranger to litigation processes which produce awards of damages. On URJ OREC v NEGDET (Mahoney P) 5 balance, I am satisfied that she has knowingly distorted her presentations and complaints whenever it occurred to her that she might swell the proceeds she would be receiving from this case." Mr Orec had made a number of complaints to the medical practitioners who had examined him and in his evidence before the court. There was, in the medical evidence that the judge accepted, a substantial basis for not accepting the claims made by Mr Orec as to the effect of the accident upon him. For example, his Honour accepted the conclusions, inter alia, of Dr Chan, a medical consultant who had examined him and who gave oral evidence at the trial. In his report of 2 September 1993, Dr Chan recorded Mr Orec's complaints as: "He has pain in his neck which radiates to the left shoulder, left arm and to the left side of the body and the left side of his leg. He needs to lie down if the plain is severe and may even limp. The pain is constant but there may be times when it is more severe but he does not know what aggravates it. He has no feelings in his legs. Besides the above he is well, there are no bowel or urinary symptoms." On examination he appeared to have "very little movement of the neck". The plaintiff "claimed reduction of sensation to the left side of his body, arm and right leg". The doctor, in his report, said: "Diagnosis: He has some degenerative changes in the joints, which is similar in men of the same age group. I am unable to explain why he complains more than those with similar pathology. He probably had soft tissue injury which would have healed within a few months, around the time he returned to work. Impairment: He may have some impairment because of the degenerative changes in his joints, but as the 1989 car accident did not initiate or aggravate his arthritis I am of the opinion that the accident did not cause any permanent impairment." Dr Johnston, who also gave oral evidence at the trial and whose opinion the judge accepted, in a report of 25 August 1993, said: "On the basis of this my third assessment I cannot find any objective evidence to suggest the presence of a serious defect in this man and although his presentation again suggests that he is exaggerating the restriction of movement that he claims in his neck the general presentation is less florid and would in my opinion suggest an improvement in his general state despite his claim to the contrary. He would in my opinion be fit to return to work to tasks consistent with a man of his years and background." The judge concluded that "there must have been some aggravation of the pre-existing degenerative condition in this man's spine". But he said: "But in the final analysis, the best benchmark of how badly a person is injured must be what the person can do thereafter. It is known that after three weeks this plaintiff was back doing the same work as he had been doing before this accident and since his previous accident. It is also known that, despite what he claimed, he worked on after that initial three weeks absence, for nearly a year with only about at most eight days off from work. His employer then relocated interstate and he lost his job." In my opinion the evidence provided by the medical witnesses was such that the judge could properly conclude that what the plaintiffs said as to their medical condition and the signs and symptoms it produced upon each of them was not credible: he could, on this evidence conclude that they were not credible witnesses. 6 UNREPORTED JUDGMENTS He could come to that conclusion in respect of each of the plaintiffs from the terms of the evidence which they gave at the hearing before him. I shall not extend this judgment by detailing their evidence and their answers in cross-examination. In my opinion the evidence of each of them was, in respects, unlikely in the sense that the signs and symptoms which they claimed flowed from the accident seemed on the face of them unlikely to flow from what had occurred. The Court does not, of course, speculate upon matters requiring medical expertise for their assessment: it must base itself in this regard upon the medical evidence. But in relation to these matters, each of them gave answers which were inconsistent or otherwise suggested that what they said should not be accepted. The trial judge had the advantage of seeing and hearing the witnesses and that factor would provide support for the conclusion to which he came. But that advantage aside, the terms of the evidence that they gave, considered according to what appears in the record, were such that, in my opinion, it was proper to conclude that they were not credible witnesses. The trial judge referred in his judgment to the video material placed before him at the trial. He took that into account. The judge's assessment of that evidence, taken with the answers that the plaintiffs gave in evidence would, in my opinion, be sufficient to warrant his conclusion as to their credibility. If and insofar as it is necessary for this Court to form its own assessment of credibility taking into account the video evidence, it would, of course, be necessary for this Court itself to view that evidence. Counsel did not suggest that the Court view the film and no arrangements were made, during argument, for it to do so. The matter was discussed and, having regard to the way in which the plaintiffs' argument was put to this Court, counsel agreed that this Court need not itself view the video evidence. The judge's conclusion as to the effect of the evidence was not the subject of specific attack. If and insofar as this Court is to form its assessment of the plaintiffs' credibility, I would prefer to put the video evidence aside. If the Court were to take into account the judge's assessment of that evidence, it would weigh against the plaintiffs; it was not suggested that the video evidence, on any view of it by this Court, could weigh positively in their favour. So putting it aside can cause no detriment to them. I shall, if it be necessary, form my assessment upon the evidence other than the video evidence. Therefore, taken separately, the matters to which I have referred would in my opinion provide a proper basis for the judge's conclusion as to the acceptability of the evidence of the respective plaintiffs. Together, they provide, in my opinion, a strong case against the acceptance of their evidence. (b) I come now to "the collateral matters" and the use which was made of them by the judge in his judgment. These matters related to what had happened earlier in the day of the accident. At about 9 o'clock in the morning of that day, the car then being driven by Mrs Orec, came into collision with another vehicle. The car was physically damaged. The defendant contended that the car was not then insured. Subsequently on the same day the NRMA company received a proposal for property damage cover. The form was, the evidence suggested, received somewhat late in the day and the time "1401" was printed on it. This, the evidence suggested, was the date of payment of the premium. Subsequently, the plaintiffs, or at least Mr Orec, the owner of the vehicle, made a claim under that policy in respect of the damage which had occurred early on 16 August 1989. The defendant claimed that the plaintiffs or at least Mr Orec had acted improperly in relation to that matter. URJ OREC v NEGDET (Mahoney P) 7 The plaintiffs denied that there was any impropriety. Notwithstanding their denials, the defendant tendered evidence to prove that, inter alia, what the plaintiff had said in relation to that matter was untrue. Evidence was called from the officer of the NRMA company who was involved. Objection was taken to evidence of this kind being admitted. The objection was, I think, based on two main grounds: that the evidence was irrelevant to any issue in the proceedings; and that, insofar as the questions asked of the plaintiffs went to credit only, the defendant could not call evidence to dispute the answers given by the plaintiffs to those questions. The trial judge admitted the evidence. He did so upon the basis that though such evidence is ordinarily inadmissible: Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; it may be admitted in certain circumstances. The judge said that the rule that a cross-examiner "is bound by answers as to credit" has three exceptions, which he described as bias, prior criminal convictions and financial interest in the litigation. He found the case to fall within the first and third of these and admitted the evidence. In forming his judgment as to the credit of the plaintiffs, the judge, to an extent, relied upon the evidence as to the collateral matters. He indicated so specifically in his judgment in the passage to which I have referred. Accordingly at least two questions arise: whether his Honour was wrong in admitting and relying upon the evidence; and if he was, whether that requires that there be a new trial. The rule of evidence upon which the plaintiffs' objection was based has been applied in several cases in recent years: see Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; Kurgiel v Mitsubishi Motors (Australia) Ltd (1990) 54 SASR 125; Natta v Canham (1991) 104 ALR 143; and Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; and has been discussed in the Australian texts: Cross on Evidence, 4th Australian edition, paral7580 - paral7590; Ligertwood Australian Evidence, 2nd ed, para7.95. It would, I think, be wrong to attempt to state exhaustively and definitively the principles or rules which are involved in cases of this kind. However it is I believe of assistance in understanding those principles or rules and what the cases decide to bear in mind: (i) that at common law the onus is upon the person tendering evidence to indicate the admissibility of the evidence and accordingly to formulate the matter which the evidence seeks to establish; (ii) that the matter to be established must be relevant; (iii) that a matter will be relevant in this sense if it assists in establishing a matter in issue, if it assists in establishing a matter which will assist in establishing a matter in issue in the proceeding, or if it goes to the credit of a witness by whom such evidence is adduced; and (iv) that, if the relevance of the evidence is only that it goes to the credit of such a witness, ordinarily evidence may not be adduced to contradict an answer given by a witness whose credit is attacked in this way. (i) The importance of determining what is the fact or matter the tendered evidence is said to establish is, in my respectful opinion, illustrated by Piddington. In that case, a witness for the plaintiff stated that he was in Phillip Street, Sydney and saw the accident of which the plaintiff had given evidence. The suggestion for the defendant was that the witness was not where he said he was. He was cross-examined as to how he came to be at the scene of the accident and he said that he was there "doing a message for Major Jarvie" in a bank in Hunter Street: he had gone there to deposit or withdraw money. The evidence tendered and to which objection was taken was the evidence of the manager of 8 UNREPORTED JUDGMENTS the branch of the relevant bank who said that there had been no operation on the Jarvie account on that day and accordingly that the plaintiffs witness could not have been there to deposit or withdraw money: at 534. The court: Dixon, Evatt and McTiernan JJ (Latham CJ and Starke J dissenting); held the bank manager's evidence inadmissible. In my opinion, the differing views of the judges of the Court resulted from their differing views as to what the evidence was tendered to establish. Latham CJ: at 544 et seq; said the evidence in question was that of the bank manager that no money had been paid into or drawn out of the relevant account. The Chief Justice saw that evidence as directed to proving that the plaintiffs witness was not in Phillip Street on that day. He saw the question whether the witness was in Phillip Street on that day as a fact relevant to the fact in issue, viz, whether the accident occurred as the witness said. As the Chief Justice said: at 545; a witness who describes what happened must say or be taken to say that he was present at time and place and saw the events. Accordingly, evidence which tends to show that he was not there at the time is relevant because it goes to negative his evidence that he was there and saw what happened. His statement, in cross-examination, as to why he was there was, in the Chief Justice's view, "a fact which had a bearing upon the probability or improbability of the truth of his evidence as to his presence at the place of the accident": at 547. Starke J also dissented. His Honour: at 551-2; saw the evidence in question as evidence that there was no operation on the banking account on the day. His Honour said that it "was not denied that evidence would be admissible to prove as a fact relevant to the facts in issue that Donnellan was not present when the accident happened to the appellant, for that would bring him into special connection with the subject matter of the issue being tried". He thought that the bank manager's evidence to that effect was of little weight (perhaps because the witness could have been at the bank for another purpose). But, going to prove that the witness "was not present when the accident happened", it was admissible. Dixon J: at 553-4; said that evidence that there was no transaction on the account on that day in itself "has no natural tendency to show that Donnellan (the witness) was absence from the scene of the accident". His Honour tested that proposition by pointing that if the witness had not given that as a reason in support of his being there, evidence that the account had not been operated on on that day would not have been admissible: at 554. His Honour thought that evidence of this kind, to be admissible, "must be admissible independently of (the witness's) account of his antecedent movements": at 554. Accordingly, the only purpose of the bank manager's evidence was to discredit the account which the witness had given of why he was there and, he held, it was therefore not admissible. The distinction involved in this reasoning is, in my respectful opinion, a nice one. The central issue of relevance was whether the plaintiff was injured as he said he was. Donnellan's evidence of what happened was relevant as tending to show he was. Presumably, evidence showing that Donnellan's evidence was in fact wrong or right would be evidence relevant to a fact relevant to the central issue. On that basis, evidence to show the evidence should not be accepted because it showed that Donnellan was not where he said he was would appear to go to a matter relevant to a matter in issue. Thus, evidence from a third party that Donnellan was seen to be where he said he was would be of this nature. It is, in my respectful opinion, curious if evidence from Donnellan himself to show this was not relevant went only to credit or a collateral matter. URJ OREC v NEGDET (Mahoney P) 9 Evatt J: at 557-8; thought the evidence inadmissible. His Honour said: "There may be cases where, by reason of some closely related incident of a somewhat special character, the witness of an accident volunteers a positive explanation of his presence at the scene of the accident, and where direct contradiction of such alleged incident and such alleged explanation is permissible notwithstanding the inevitable delay caused by such an extension of the ordinary scope of the investigation. Such evidence may be admissible upon the ground that the fact of the presence of the witness at the scene of the accident is deemed to be a fact relevant to the issue, and that it cannot reasonably be dissociated from the incident, event or circumstance by which he has explained his being an eyewitness. Under special circumstances such as the above, it may possibly be said that the particular witness has 'garnished his account of the relevant facts with associated details designed to give verisimilitude' - to quote from one of the judgments in the Supreme Court. In my opinion this case belongs to no such special category. The witness Donnellan did not explain his presence at the scene of the accident by reference to any special event, incident or circumstance. It was fully established that the place of Donnellan's residence and occupation was close by the scene of the accident. It was almost fanciful to say that the witness attempted to garnish his story by attaching special significance to his message to the bank. On the contrary, his recollection as to the bank visit was obviously not very clear and he never suggested that the visit formed any integral or even relevant portion of his narrative of the accident. We are then left with a chain of reasoning which seeks to infer the fact that A was not present at one place at a certain time by proving that A was not present at a different place at a somewhat earlier point in time. The reasoning is fallacious." His Honour's reasoning is accordingly based upon the conclusion that the reason given by the witness was not given in order to establish that he was there when he said he was. McTiernan J: at 567; said that evidence that there was no operation on the account "could throw no light whatever on the question whether the witness had seen the accident or not. It could discredit the witness but it was incapable of contradicting any fact upon which proof of the opportunity which the witness had of observing the accident depended". As I have said, Piddington illustrates the fact that it is essential to determine to what the tendered evidence goes. The dissenting judges, Latham CJ and Starke J, saw the witness's statement as to why he was where he was as probative of the fact in issue, viz, that he was in the street where he said he was. Dixon J concluded that the reason he gave was not given to establish, nor was it probative of, the fact that he was there. Evatt J appears to have taken a similar view of the reason the witness gave to explain why he was where he was. McTiernan J appears to have assumed that the reason the witness gave was not probative of any such fact. (ii), (iii) Depending upon one's classification of or concepts in the law of evidence, the credibility of a witness who gives evidence of a relevant fact may properly to be seen as itself a relevant fact. I am conscious that to draw inferences as to what the law is or should be from a classification or categorisation is often misleading. Classifications and categorisations in the law are apt to be made according to the mindset of the writer. But if relevance for the purpose of the law of evidence is determined by whether, in the ordinary experience of life, a 10 UNREPORTED JUDGMENTS reasonable person would infer from the fact tendered the existence of another (relevant) fact: see Jones v Sutherland Shire Council (1979) 2 NSWLR 76 and the authorities there referred to; then it is one's ordinary experience that whether one would infer the existence of a fact from the fact that X said he saw it occur is affected by the credibility that one gives to what X says. However, for present purposes it is not necessary to pursue such a matter further. (iv) If evidence going to the character or credibility of a witness is relevant evidence, the principle or rule that a cross-examiner may not call evidence to contradict the answer of a cross-examined witness if the question has gone only to credit is a rule of policy. As was said by Starke J in Piddington: at 551: "When a party cross-examines his opponent's witness as to facts relevant only to the witness's credit., he is not as a general rule entitled to call evidence to contradict him. But as Christian J said in R v Bourke (1858) 8 Cox CC 44 at 53, 54 'the truth is, that the rule of exclusion is a rule of convenience and not a principle'. But it is only in cases which bring 'the witness into special connection with the party, or the subject, that the rule has been broken into'." The nature and binding force of the rule was considered by Clarke JA in Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471. This Court there considered the rule, its rationale, the exceptions to it, and the extent to which, in the interests of justice, it may be put aside. Accordingly, it is necessary to consider whether, in the instant case, one of the exceptions applies or whether the interests of justice require that the rule not be applied. The learned trial judge, in a separate judgment given during the trial, recognised the nature of the rule and referred to exceptions to it. His Honour saw the evidence as to the collateral matters going to establish that "the plaintiff has a financial interest in the outcome of the litigation" and is "biased in the way in which he has handled the questions under cross-examination". I feel a different view should be taken of the two matters to which the learned judge referred. Assuming without deciding that it is proper to call evidence to show that the witness has a financial interest in the litigation, I am not convinced that the collateral matters relating to what happened on the morning of the day in question demonstrate that the plaintiffs had such an interest. It is, of course, apparent that the plaintiffs, as plaintiffs, had such an interest. But the fact that, earlier in the day, they made (as I shall for this purpose assume) a spurious claim for property damage does not, I think, show that they had a financial interest in the present litigation. Nor do I think that what happened earlier in the day shows, in the relevant sense, bias. It may be that, in answering the questions put to them, they demonstrated bias in the sense that they would, or would be inclined to, say what assisted them in this litigation. But that, in my opinion, is not bias within this part of the principle. Ihave considered whether the evidence is otherwise admissible. I shall assume for this purpose that the evidence would ground the inference that the plaintiffs or one of them made a spurious claim for property damage to the vehicle. The context of that claim has no connection with the context of the relevant accident. The only matter at issue in the present proceeding was the assessment of damages. The collateral matters, credit apart, could provide no basis as to whether the plaintiffs suffered the loss that they claimed. URJ OREC v NEGDET (Mahoney P) 11 A finding of a spurious claim for property damage would, of course, affect their credit. That in turn would be relevant in determining whether their claim for the subsequent damages should be accepted. But, as Latham CJ point out in Piddington: at 545; questions which affect only the credit of a witness and are not relevant to the matters actually in issue in the case are subject to the special rule that the witness's answers cannot be contradicted by other evidence "except in certain exceptional cases". It is necessary to determine whether, having regard to this "rule of convenience", the rejected evidence should have been accepted. In considering this aspect of the matter it is necessary to determine what precisely occurred and what is the essence of the objection taken for the plaintiffs. The plaintiffs were cross-examined as to the property damage incident and the claim that was made in respect of it. They gave answers which the judge seeing them before him refused to accept. At least, he could regard the answers as they were given as justifying the inference that they were not frank witnesses, gave inconsistent or unacceptable answers, and were not worthy of credit. To that and to such a finding, there could be no objection in terms of the present principle. The essential objection taken and pressed has been that the defendant gave evidence, from witnesses and documents, to contradict answers given by the plaintiffs. The judge allowed such evidence to be given. The matter to be determined is whether the reception of that evidence can be justified. I do not think it can be justified in terms of the conventionally stated "special circumstances". The collateral matters were separate and distinct from the subsequent accident and the losses which flowed from it. There is in my opinion nothing to connect the two other than the effect which the former had upon the credit of at least one of the plaintiffs. In Nweiser (1992) 28 NSWLR 471 this Court pointed out that, special exceptions apart, the interests of justice may warrant the receptions of evidence of this kind. The conclusion that what was done was spurious or deliberately wrong might, to a lay person, seem important in determining the credibility of their present claim: a person who made such a claim for insurance recovery in the morning would be less likely to be believed in what was said about the evening's events. But that, in my opinion, is not sufficient to constitute in law either special circumstances or otherwise a ground for departing from the general rule. It is, of course, possible that the judge formed his conclusion as to credibility not as the result of this additional evidence but as the result merely of what was said by the plaintiffs or either of them during the cross-examination as to their credit. I have considered whether, in the light of his judgment, that is the inference to be drawn. In the end, I am not satisfied that that is the correct inference; my conclusion is that the judge was influenced to an extent by the evidence which the defendant adduced. Accordingly, I accept Mr Andrews' submission that the evidence adduced by the defendant was inadmissible and that it influenced the trial judge in forming the conclusion he did as to the credibility of the plaintiffs. I come now to consider whether upon the above findings, the court should order a retrial. Ordinarily a new trial would be appropriate. The judge formed his conclusion as to the credibility of the plaintiffs by reference to evidence which was, to the extent to which I have referred, inadmissible. That assessment of credibility was taken into account in determining the extent to which he accepted what the plaintiffs said as to, for example, their medical condition. There was, in my opinion, substantial evidence upon which - putting aside the effect of the 12 UNREPORTED JUDGMENTS objectionable evidence - the judge could and should have formed the conclusion he did as to the credibility of the plaintiffs. Ordinarily the fact that his assessment has been formed by reference to, inter alia, inadmissible evidence will require that a new trial be ordered. But Mr Poulos QC, for the defendant, submitted that that should not follow in the present case. He argued that this Court, on appeal, undertakes a rehearing of the proceedings: Supreme Court Act s75A; of the nature established by the High Court in Warren v Coombes (1979) 142 CLR 531. He submits that on such a rehearing, were the matter to be judged purely upon the evidence before this Court, this Court would not accept as credible witnesses either of the plaintiffs. He further submits that this Court would find the evidence of each of them unconvincing and displaying inconsistencies which, considering the evidence according to its terms, would lead to the conclusion that relevant portions could not be accepted. The Court should therefore conclude either or both that (1) deciding the matter for itself as on a rehearing the Court would arrive at the same conclusion as the trial judge; (2) if a new trial were to be ordered, a result would be reached substantially similar to that at the first trial, so that the appeal should be dismissed because a new trial would therefore be pointless. This aspect of the appeal has raised issues of complexity and importance. I have considered whether, within the scope allowed by the existing authorities, this Court can make orders that will avoid the "evil" of a further trial. As Mr Poulos's submissions suggest, there is practical utility in this Court bringing the litigation to finality. There is a substantial likelihood that, on the available evidence, the result of a retrial will be very similar to the result of the instant trial. However, although I think there is considerable force in this submission, on balance I do not think it overcomes the considerations underlying what I have referred to as the ordinary course. As to the first, rehearing, approach, although I have earlier indicated my reactions to the plaintiffs' cases upon simply reading the relevant record, in the absence of having seen the plaintiffs, and remembering that the trial judge's views of their credibility were affected by inadmissible material, I am reluctant to act on those reactions. To this there is to be added the desirability of the plaintiffs' case being decided, on the relevant evidence, by a judge who sees the witnesses and is not affected by irrelevant evidence. As to the new trial inutility submissions, although my own view is that a new trial is likely to produce a result very similar to the first, it is not so clear to me that such a result is so inevitably likely as to justify the refusal of a new trial. In my opinion, therefore, the appeal should be upheld, judgment below set aside and a new trial ordered on the issue of damages. The respondent should bear the plaintiffs' costs of the appeal. The costs of the first trial should abide the result of the new trial. Priestly JA I agree with Mahoney P. Appeal upheld, judgment set aside. New trial, limited to assessment of damages. Respondent to bear appellants' costs of appeal. Costs of first trial to abide result of new trial. RYNS Counsel for the Appellant: DE Andrews Solicitors for the Appellant: Peter Bouzanis and Associates URJ OREC v NEGDET (Priestly JA) Counsel for the Respondent: J Poulos QC, JS Gleeson Solicitors for the Respondent: Abbott Tout