JOSEVSKA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, SHELLER JA and POWELL JA 26 March 1996 [1996] NSWCA 282 Handley JA. This is an appeal by the plaintiff from judgment for the defendant entered by his Honour Judge Walsh on 11 September 1991 in a motor vehicle accident case. The question in dispute at the trial was whether the plaintiff had suffered appreciable damage as a result of the accident. She was a back seat passenger in a motor vehicle being driven by her husband on 26 October 1984 when proceeding south along Brook Street, Naremburn, it collided with the rear of the vehicle in front. His Honour found that the vehicle in front was struck with considerable force and this caused the plaintiff to clench her arms and hold them out against the seat of the driver. She must have also put her feet forward to cushion the blow and her feet went through the cloth covering of the seat in front of her. She was wearing a seat belt at the time andundoubtedly this cushioned the effect of the impact on her. The trial judge noted that there was appreciable damage to both vehicles. As it happens the plaintiff at the time was on her way to see Dr Evans for medico legal purposes in connection with a worker's compensation claim that she had arising out of an injury at work, an injury to her right arm. Dr Evans had been retained on behalf of the worker's compensation insurer. Not long after the accident the plaintiff presented for the consultation with Dr Evans and did not mention to him that she had been involved shortly before in the accident. Her first complaint attributable to the motor vehicle accident disclosed in the evidence was to Dr Verma three days later. Dr Verma's report of 14 April 1987 is in evidence and she noted that the plaintiff presented complaining of pain in the upper abdomen, headache and dizziness following the accident. The doctor said that she could not find any external injuries or any other abnormalities and she prescribed sedative and pain killing tablets. Dr Verma's clinical notes are in evidence and they disclose a further consultation on 4 December 1984 in which she noted 'anxiety state, cannot sleep' and prescribed Serepax. The next recorded visit to that doctor was on 19 November the following year when she recorded 'insomnia and nervousness after the road traffic accident' the previous year and that she had anxiety and was nervous. The rest of the notes appear to be indecipherable. Dr Verma's report indicates that the plaintiff was having insomnia on later visits. On 29 April 1986 she referred her to Dr Novotny because there had been no improvement in her condition. She was last seen by Dr Verma on 22 May 1986 when all the complaints were there and she was also having pain in both feet and was very shaky. Further medication was prescribed. The trial judge noted that the plaintiff had been referred to Dr Novotny by Dr Verma but that no report from Dr Novotny had been tendered in the plaintiff's case. 2 UNREPORTED JUDGMENTS During these years the plaintiff had also been seeing one or other of the Drs Marinkovich. It seems that one or other or both of these doctors were being consulted in connection with symptoms the plaintiff was experiencing in her right arm due to her industrial accident but despite some frequency of visits to these doctors, there was no complaint to either of them about the motor vehicle accident until 5 November 1986. The trial judge held that all the plaintiff's complaints were subjective and that there were no objective signs available to any of the medical practitioners who gave evidence which would enable them to confirm the plaintiff's history and complaints of symptoms. That finding was not challenged by the appellant. This means, of course, that the doctors who gave evidence and reported on her condition, whose evidence was tendered on behalf of the plaintiff, were totally dependent on the plaintiffs history and complaints of pain and other symptoms as the basis for their opinions and findings. Unfortunately for the plaintiff the trial judge rejected her evidence. He said 'The Court has to look at what the plaintiff has said herself and has to assess the plaintiff. I cannot accept her evidence as a person of truth. I cannot accept that she did in any way suffer damage flowing from the accident, that there was any damage to her in the accident, damage to her as a plaintiff entitled to any damages'. He had earlier referred to the fact that she had not mentioned her car accident to any of the worker's compensation doctors, either those retained on her behalf or those retained on behalf of the worker's compensation insurer. She was cross-examined about this evidence and his Honour said 'I found her evasive not only in her answers to theemployment but the way that she answered, that she did not tell the worker's compensation doctors about it because that was one thing and this accident was another'. The defendant also had film evidence of the plaintiffs activities while working as a domestic employee at a motel, the film being taken late in 1990, approximately one year before the trial. As the judge noted, the film evidence was not startling but 'it is certainly not in accordance with the tenor of the evidence that the plaintiff has given about herself'. He continued 'I noticed when the plaintiff was giving her evidence at various times that she was not willing to answer the questions as they were fairly put to her'. It is clear therefore that the judge did not accept the plaintiff's evidence and that his findings in that regard were confirmed by his opinion of the film evidence. This Court has also had an opportunity of seeing the film and there is no reason, speaking for myself, to disagree with the finding which the judge made in relation to the film. The case then is one in which the credibility of the plaintiff was critical and she was rejected as a witness of truth by the trial judge. Mr Stewart who said everything that could possibly have been said on behalf of the appellant criticised some of his Honour's reasoning in relation to her failure to report the existence of the motor vehicle accident to the doctors who were examining her for medico legal purposes in connection with her worker's compensation claim. There is some substance in those submissions but they are not sufficiently powerful in my view to overcome his Honour's credibility based findings and his assessment of the plaintiff in the witness box, particularly in the light of the film evidence. Mr Stewart also submitted correctly that his Honour at one point misunderstood the evidence because he referred to the fact that Dr Davies had said that the only objective evidence in support of his opinion that she wassuffering from an anxiety state was his observations of her and her nervous UBSEVSKA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handle9 JA) behaviour while she was in the waiting room and during the consultation. The trial judge twice referred to the fact that Dr Davies said that he had observed the plaintiff in the waiting room. It is conceded by Mr Laughton that there is no evidence that Dr Davies saw the plaintiff in the waiting room or based any of his conclusions upon any such observations. However, he did say that he based his conclusions in part on his observations of the plaintiff during the consultation. The appellant to this extent has established a factual error by the learned trial judge but in my opinion it is not of such a serious nature as to vitiate his Honour's findings or entitle this Court to interfere. This Court has been reminded continuously in recent years by the High Court that it is not entitled to interfere with credibility based findings, even where the trial judge does not place a heavy emphasis on his assessment of the witnesses in the witness box and even where he does not mention this factor at all, because the subtle influence of demeanour may still have made an important contribution to the trial judge's ultimate conclusions. In my opinion this Court is not entitled to interfere with his Honour's credibility based findings and in those circumstances it is inevitable that the appeal must fail. I would propose that the appeal be dismissed with costs. Sheller JA. I agree. Powell JA. I also agree. Handley JA. The order of the Court will be appeal dismissed with costs. It will be noted that the video is handed out to counsel for the Government Insurance Office. Orders accordingly.