GHALEB v LEE [1996] NSWCA 208

GHALEB v LEE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and BEAZLEY JJA 15 May 1996, 6 June 1996

[1996] NSWCA 208

APPEAL — EVIDENCE — Oral evidence at trial — admissibility of evidence — credibility of witness — findings of fact by trial judge based on demeanour of witnesses — failure by trial judge to refer to evidence — power of appellate court to set aside findings

The appellant was involved in a motor vehicle accident on 16 October 1989, sustaining injuries to his head, neck and lower back. The appellant also complained of psychiatric symptoms caused by the accident which have affected his ability to lead a normal life and to earn an income. At the date of trial, the appellant had not worked since July 1991. The appellant appealed against the judgment of Pain J in the District Court on three bases. Firstly, the appellant submitted that the trial judge had erred in making findings of credit in respect of the appellant and the appellant's medical witnesses. Secondly, the appellant submitted that the trial judge failed to consider the appellant's injuries relating to his head and neck, and the evidence relating to his psychiatric condition in making an assessment of the appellant's non-economic and economic loss. The third ground of appeal was whether the trial judge erred in admitting evidence of Dr Smith which was critical of the reputation of Dr Teychenne.

HELD:

1. (per curiam) The trial judge, having formed a view as to the credit of the appellant on certain major issues, was entitled to make an adverse finding as to the whole of his evidence, even though there was not a detailed challenge to each and every part of the evidence.

2. There were appropriate bases upon which the trial judge could reject the appellant's medical evidence.

3. As the trial judge primarily accepted the evidence of Professor Gye, which dealt with the appellant's head and neck conditions, it was incorrect to say that the trial judge failed to consider these injuries in making his assessment of damages.