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. 4. There is an obligation on a judge to give adequate reasons for a decision: Pettitt v Dunkley [1971] 1 NSWLR 376. Notwithstanding the trial judge's absence of reasons in respect of the appellant's psychiatric condition, as an appeal to the Court of Appeal is by way of rehearing pursuant to s75A(5) Supreme Court Act 1970, review of the psychiatric evidence did not support an entitlement to damages for non-economic or economic loss. 5. The evidence of Dr Smith which related to Dr Teychenne's apparent falsification of clinical research was admissible, as it was relevant to a fact in issue. 6. The other evidence of Dr Smith relating solely to Dr Teychenne's credit was inadmissible. However, even if the entire evidence relating to Dr Teychenne was inadmissible, as the trial judge's assessment of the appellant's entitlement to damages was based primarily on the evidence of Professor Gye, which had no connection to the evidence of Dr Smith, it cannot be assumed or inferred that the impugned evidence "entered in any substantial degree into the conclusion which the trial judge has formed": Vocisano v Vocisano (1974) 130 CLR 267, per Barwick CJ at 274-275. ORDERS 1. Appeal be dismissed with costs. Priestley J 2 UNREPORTED JUDGMENTS I agree with Beazley JA. Handley JA I agree with Beazley JA. Beazley JA This is a plaintiff's appeal from a decision of Pain J in the District Court of New South Wales dated 15 August 1995. The appeal is in respect of his Honour's assessment of damages. Three principal issues arose on the appeal. First, whether his Honour erred in the findings of credit he made in respect of the appellant and the appellant's medical witnesses. Secondly, whether his Honour failed to take into account, in assessing both non-economic and economic loss, the appellant's injuries relating to his head and neck and his psychiatric condition. Thirdly, whether his Honour erred in admitting evidence by Dr Sydney Smith relating to the reputation of Dr Teychenne. The appellant's personal details, the circumstances of the accident and the post accident history are contained in the Summary of Facts filed in accordance with Practice Note No 65 which should be read in conjunction with these reasons. APPELLANT'S CREDIT The trial judge found that the appellant was an "unreliable historian" with a "propensity to exaggerate". Such a finding as to a witness's credit is usually immune to appellate intervention: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472. As Brennan, Gaudron and McHugh JJ stated in Devries at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (see Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989), 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990), 171 CLR 167). If the 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" (SS Hontestroom v SS Sagaporack [1927] AC 37, at 47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was glaringly improbable" (Brunskill (1985), 59 ALJR at 844; 62 ALR at 57)." However, counsel for the appellant submitted that his Honour's finding involved appealable error. First, he submitted, the finding as to credit was limited to the appellant's evidence in relation to his back condition. On the contrary, his Honour, in part at least, used that finding to reject all the appellant's medical evidence, including the evidence which related to the appellant's head, neck and psychiatric conditions. Secondly, it was submitted the finding was flawed as it included a finding which was clearly contrary to the evidence. Thirdly, the appellant was not challenged in cross examination to the effect that he was exaggerating his symptoms in relation to his head, neck and psychiatric conditions. It was submitted that these errors then vitiated his Honour's findings as to the extent of the appellant's disabilities and economic loss. With one qualification, I do not agree with these submissions. His Honour's finding as to the appellant's credit was not confined to a finding in relation to the appellant's evidence of his back condition. The finding was made in general terms. It followed passages in the judgment when his Honour referred to the appellant's "symptoms" and "complaints". It also followed his Honour's URJ GHALEB v LEE (Beazley JA) 3 acceptance of Professor Gye's evidence as to the appellant's medical condition. Professor Gye's evidence related not only to the appellant's back condition, but also to his head and neck condition. There was nothing in the language or context of the finding which requires it to be construed in the limited way submitted by the appellant. Nor is it correct to say that the appellant was not cross examined to the effect that his evidence relating to his head and neck and psychiatric conditions was exaggerated or embellished. The appellant's credit was clearly in issue. His Honour was not satisfied as to the appellant's credit on certain major issues. Having formed a view as to credit on those issues, his Honour 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. The one qualification which I have is in respect of his Honour's finding that the appellant did not give evidence as to his pre-existing back condition. This was not correct. The appellant was asked, in examination in chief, whether he had pain in his back before the accident, to which he responded: "Well, yes, I do. I did have strained muscle or something but normal; you do something little and you get over it." Notwithstanding that his Honour apparently overlooked this evidence, I do not consider that this affects his Honour's overall finding as to the appellant's credit. His Honour's comment that no evidence was called as to the appellant's previous history of back pain was made "in passing". His Honour's error involved overlooking one question and answer in a reasonably lengthy cross examination. There was other evidence relating to matters seriously in issue upon which his Honour's finding as to credit was based. Accordingly the submission as a whole, should be rejected. REJECTION OF APPELLANT'S MEDICAL EVIDENCE His Honour rejected the appellant's medical evidence on two bases. First, he made adverse findings as to the credit of both Dr Assaad, the appellant's general practitioner, and Dr Giurgis, the appellant's orthopaedic surgeon. Those findings should not be disturbed by this Court: Abalos; Devries. Secondly, having found that the appellant was a poor historian and prone to exaggeration, the validity of the appellant's medical evidence, which in large measure was dependant upon the appellant's subjective complaints, was impugned. More specifically, in relation to the appellant's back condition, none of the doctors (save for Dr Assaad) were given a history of the appellant's prior back condition. Dr Giurgis conceded that that was a relevant matter to take into account in assessing the appellant's condition as caused by the accident. Accordingly, there were appropriate bases upon which his Honour could reject the appellant's medical evidence and his findings in this regard should not be disturbed. FAILURE TO TAKE INTO ACCOUNT THE APPELLANT'S HEAD, NECK AND PSYCHIATRIC CONDITIONS IN ASSESSING DAMAGES His Honour, after referring to the fact that the appellant: "in his consultations with his medical advisers and...specialists...described a continuance at various times and at various levels of intensity of the symptoms which he suffered from the accident", and after rejecting the appellant's medical evidence for the reasons to which I have referred, stated that he preferred "with some qualifications" the evidence of Professor Gye. Professor Gye's evidence dealt with the appellant's back, head 4 UNREPORTED JUDGMENTS and neck conditions. Accordingly, it is not correct to say that his Honour failed to take into account the appellant's head and neck injuries when assessing damages. However, his Honour made no specific reference to the appellant's psychiatric condition. Professor Gye did not deal with it. Psychiatry was not, of course, his specialty. Later in his judgment, when determining the extent to which the appellant's income earing capacity had been impaired, his Honour dealt with the appellant's medical condition in global terms. He stated: "\.. itis my view that the symptoms and sequela of this accident did disable the plaintiff significantly for a period of two to three years and to a decreasing or attenuating degree thereafter... " In the absence of any reference to the psychiatric evidence of either the appellant or the medical witnesses, it is difficult to know whether his Honour gave any consideration to it. There is, of course, an obligation on a judge to given adequate reasons for decision. See Pettitt v Dunkley [1971] 1 NSWLR 376 at 381 ff; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Southgate v Waterford (1990) 21 NSWLR 427 at 441-442. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd Mahoney JA stated at 385: "There is in my opinion an established course of decision in this State that in certain circumstances it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law.... However such a duty does not exist in respect of every matter of fact or of law which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or as Lord Scarman said merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 350. A judge will of course appreciate the possibility of points being taken or decided on appeal which were not taken or decided below or for this reason he may decide and give reasons for his decision on matters which in strictness he need not decide." Evidence was given by three psychiatrists, Dr Younan and Dr Greenberg on behalf of the appellant, and Dr Sydney Smith on behalf of the respondent. Dr Greenberg's opinion was: "From the history available [the appellant] was concussed in the accident and it would appear that he sustained a labyrinthine concussion causing a rotatory vertigo which persists in slight degree on sudden head movements. The impaired recent memory function of which he complains is consistent with its being the result of a Post-Concussive Syndrome involving mild brain damage. Secondarily to the persistent pain discomfort and disability he suffers from a mild Anxiety State with depressive symptoms which exacerbates all his disabilities proceeding from organic damage. In view of the time which has elapsed since injury the prognosis must be guarded. Following conclusion of litigation if he can find occupation within his physical capacity this should significantly diminish the emotional disturbance present but the memory dysfunction is likely to persist indefinitely." Dr Greenberg's report was the subject of comment by Professor Gye, who stated: URJ GHALEB v LEE (Beazley JA) 5 "3,...there is no clinical evidence that Mr Ghaleb suffered anything more serious than a slight or moderate degree of cerebral concussion... 4. There is no evidence to indicate that he suffered "mild brain damage" as suggested by Dr Greenberg. 5. There is no new clinical evidence provided by Dr Greenberg that would lead me to alter my opinions expressed in my reports following my examination of Mr Ghaleb on 7.11.90, 26.5.92 and 16.8.93." As his Honour accepted Professor Gye's evidence, it follows that his Honour rejected that part of Dr Greenberg's evidence upon which Professor Gye made comment. That left only Dr Greenberg's view that the appellant was suffering from a mild anxiety state with depressive symptoms. Dr Younan diagnosed a post-concussive state, anxiety and depression. Professor Gye's evidence referred to the appellant's post-concussive state and to that extent, Dr Younan's evidence must be taken to have been rejected by the trial judge. In his second report of 17 October 1994, Dr Younan recorded that the appellant continued to suffer from "headache dizziness and anxiety in relation to motor vehicles". He noted that the appellant "was extremely worried about his brain function". Professor Gye had found that by August 1993, there was no evidence of any abnormality of the Hallpike test for positional vertigo. He found that there was no evidence of any neurological abnormality related to his complaint of post traumatic headache. As Dr Younan had found that the headache was a symptom of the appellant's post concussive state and also related to tension and neck injury, matters with which Professor Gye dealt (except for tension), his Honour, by inference, must also have rejected that aspect of Dr Younan's evidence. He must also have dismissed the appellant's concern about brain damage as a relevant factor in the assessment of damages in view of Professor's Gye's finding that there was no brain damage. Dr Sydney Smith observed that the appellant: "does not present as someone who is significantly distressed emotionally and given his probable propensity to exaggerate or fabricate any physical and cognitive impairments it is quite possible that he has also exaggerated or fabricated his complaints of emotional distress. He does not have any cognitive disturbance that would prevent him from working. Even if he does have the emotional symptoms claimed they do not appear to be of a degree that would impair his working capacity." When the totality of the psychiatric evidence is considered, (to the extent that it was not inferentially rejected by the trial judge), there was no evidence to support a finding that the appellant's anxiety and depressive condition was such that the appellant's "ability to lead a normal life is significantly impaired" within the meaning of s79(1) of the Motor Accidents Act 1988 (NSW). Nor was the evidence sufficient to support a finding that there had been an impairment of the appellant's earning capacity. It is unlikely therefore that the appellant's psychiatric condition played any part in his Honour's assessment of damages, in which case there was no obligation upon him to give reasons in relation to this issue. Accordingly, I do not consider that the appellant has demonstrated any appealable error on this issue. However, if his Honour was bound to give reasons on this issue, it does not mean that the decision of the trial judge must be set aside. An appeal to this Court is by way of rehearing: s75A(5), Supreme Court Act 1970. The Court has the powers and duties of the court from which the appeal is brought, including powers and duties concerning the drawing of inferences and the making of 6 UNREPORTED JUDGMENTS findings of fact: s75A(6)(b), Supreme Court Act. I have already referred to the psychiatric evidence. As I have said, it does not support an entitlement to non-economic or economic damages. Accordingly, notwithstanding the absence of reasons, I would not interfere with the trial judge's verdict. ADMISSION OF DR SYDNEY SMITH'S EVIDENCE Dr Sydney Smith provided two medico-legal reports to the respondent, both of which were adduced in evidence. In both of those reports, he commented upon the reports of Dr Teychenne, neurologist. Dr Teychenne had performed nerve conduction studies and other tests upon the appellant. In his first report, dated 18 December 1990, Dr Sydney Smith stated: "T would not accept the results of the neurophysiological testing unless they were confirmed by an independent assessment." In his second report, dated 27 May 1994, Dr Sydney Smith stated: "Dr Teychenne has claimed that electrophysiological testing shows evidence of nerve root compromise in the upper and lower limbs but I would not accept this finding unless it was verified on testing by an independent neurophysiologist. Failing this it would be of value to have a neurophysiologist report on Dr Teychenne 's interpretation of his results." It appears that the respondent acted upon Dr Sydney Smith's suggestion as, on 28 February, 1994, Dr Yiannikis, consultant neurologist, commented upon Dr Teychenne's neurophysiological investigations and conclusions as follows: "...1 find it difficult to relate these standard wave forms that are obtained from tibial nerve stimulation at the ankle with those described in the report of Dr Teychenne. As such I am unable to comment on this interpretation of his report as he clearly has normal values which are not familiar to me or typical of those published elsewhere." Dr Yiannikis concluded: "\..L..have some difficulty in interpreting the values as presented." Dr Yiannikis's report was referred to Professor Gye, who commented, in his report of 8 August 1995: "1. Dr Yiannikas has provided a detailed analysis of the studies performed by Dr Teychenne on 23.7.90 and raised a number of issues that question the validity of the reported findings. 3. Dr Yiannikas' studies performed on 23.6.95 revealed that the nerve conduction studies of the lower limbs are normal and there are some minor changes only in the EMG recordings. 4. Conclusion: Neurophysiological studies are special investigations used to support the clinical diagnosis. There is no information forthcoming from these tests which would lead me to alter my clinical opinion contained in my medical reports on Mr Ghaleb." There is no evidence that Dr Sydney Smith's reports were referred to Professor Gye. Indeed, having regard to the format of Professor Gye's reports, I infer that they were not. That was the state of the evidence at the point when Dr Sydney Smith was called to give oral evidence. The trial judge disallowed the appellant counsel's objection to the following evidence of Dr Sydney Smith: "Q. Are you acquainted with a Dr Teychenne? A. Yes I am. Q. When did you first become acquainted with Dr Teychenne? URJ GHALEB v LEE (Beazley JA) 7 A. It was approximately 1980 that I appointed him as neurologist at the Neuro-psychiatric Institute. .. After he arrived there was concern expressed by some of the other specialists in the unit about the practice of Dr Teychenne. T enquired into the prospect that he was over-servicing patients and that he was billing Medicare for services he did not render. Q. What did he say if anything? A. He said he had to pay his mortgage somehow. Q. Was there anything in respect of the treatment of Parkinson's affected patients that came to your notice? A. He was doing research on a particular drug. He had done research in America. His research papers indicated that good control of Parkinson's could be obtained by using mild very slight doses of drug instead of the usual therapeutic dose. He continued that research at the institute. Q. Did he continue it on patients with Parkinson's Disease or not? A. He continued it on patients within the ward but we knew that at least some of the patients on whom he was - that he put on the drug did not have Parkinson's Disease to start with and that I think there was an independent review subsequently of the events of the drug and of course people did not find Parkinson's and he attributed that to the effect of the drug whereas we attributed it to the fact the person did not have Parkinson's Disease to start with. Q. Did matters over a period of time come to a head? A. They came to a head when I confronted him on that day and I asked for his resignation and he gave it to me." The first question is whether this evidence was admissible. The general rule is that evidence which affects only the credit of a witness, not relevant to an issue in the case, cannot be contradicted, except in certain exceptional cases: see Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 545. One exception is that evidence may be given to show the witness is a notorious liar. In this case, at the stage that Dr Sydney Smith gave his evidence, Dr Teychenne's medical reports had been tendered but rejected as he was not available for cross examination. Dr Teychenne had not been called to give evidence when Dr Sydney Smith gave his evidence and was not going to be called. However, it appears to have been overlooked by the trial judge, and also, it would seem by counsel, that Dr Teychenne's reports were already in evidence as part of the medical records of Dr Assaad. It was clear from the medical evidence and in particular, from the medical reports of Dr Sydney Smith, Professor Gye and Dr Yiannikis, that the validity of Dr Teychenne's neurophysiological testing was in issue. Dr Sydney Smith's evidence in relation to the apparent falsification of the clinical research was relevant to that issue, and therefore, was admissible, even though Dr Teychenne had not been cross examined on it. However, Dr Sydney Smith's other evidence went to credit only and was thereby inadmissible. That does not mean, however, that his Honour's judgment should be disturbed. Indeed, even if I am wrong and the whole of the evidence was inadmissible, the question arises whether the wrongful admission of the evidence warrants appellate interference. In Vocisano v Vocisano (1974) 130 CLR 267, Barwick CJ stated at 274-275: 8 UNREPORTED JUDGMENTS "\..in the case of a trial by a judge we have the reasons he has expressed for giving his verdict on the facts. Consequently it is necessary to scan those reasons carefully to ensure that the inadmissible material has not entered in any substantial degree into the conclusion which the trial judge has formed. In my opinion before a new trial is ordered in a case where the verdict is in accordance with the evidence it should be seen that the inadmissible matter has been used by the judge in reaching his verdict." The trial judge made no reference to Dr Sydney Smith's evidence in his judgment. Counsel for the appellant submitted however that the evidence was so inflammatory that his Honour must have been affected by it. This submission must be rejected. If his Honour made no reference to the evidence, it cannot be assumed or inferred it affected his decision. More importantly, in this case, his Honour's assessment of the appellant's entitlement to damages was based on Professor Gye's evidence, subject to certain undefined qualifications which favoured the appellant. Professor Gye was not privy to any of Dr Sydney Smith's views and thus could not be affected by them. In these circumstances, the only possible inference is that his Honour was not affected by them. In my opinion, the appeal should be dismissed with costs. Appeal be dismissed with costs. Counsel for the Appellant: HJ Marshall Solicitors for the Appellant: RF Buckley, Messrs McLaughlin and Riordan Counsel for the Respondent: A Renshaw Solicitors for the Respondent: B Ramrakha, GIO Australia