SHARON COBB v TROY LEE COBB SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, COLE JA and BEAZLEY JA 13 May 1996 [1996] NSWCA 108 MOTOR VEHICLE ACCIDENTS — assessment of injury — weight of evidence — bias. The plaintiff was injured in a motor vehicle accident on 17 February 1993. The trial judge held that her case did not pass the threshold in s 79(1) of the Motor Accidents Act 1988. The plaintiff alleged that inadequate weight was given to the documentary medical evidence in her case and her evidence and that excessive weight was given to the oral evidence of the respondent's medical specialist whose evidence was coloured by bias. HELD: dismissing the appeal: (1) In accordance with Abalos v Australian Postal Commission (1990) 171 CLR 167, there were no glaringly improbable findings or established incontrovertible facts that were inconsistent with the judge's findings; (2) The alleged bias was a question of fact for the trial judge in the light of the cross-examination and there was no basis on which the Court could interfere. Handley JA. This is an appeal by the plaintiff, Sharon Cobb, now an adult, against the assessment of her damages by Philip Bell DCJ in the District Court at Parkes on 1 September 1995. The appellant was injured when a motor vehicle in which she was travelling as a passenger in the back seat was involved in a rear end collision on 17 February 1993. The judge held that the plaintiff had not established that her case passed the threshold in s 79 (1) of the Motor Accidents Act and he entered a verdict for the defendant. The only witnesses called in the case were the plaintiff, and Dr Meachin, an orthopaedic specialist, called for the defendant. Other medical evidence was given in report form. There were, in particular, reports from the plaintiffs general practitioner who saw her on 6 April 1993, some two months after the accident, and then on a number of occasions up to 23 January 1995. The plaintiff's complaints to Dr Stanley related essentially to her neck, but there were some complaints at a later stage of difficulties in her back. Dr Stanley reported that at the first consultation there had been no complaints and no observations on examination relating to the plaintiffs back, but that complaints about her back were made at the follow-up consultation on 2 June 1993. The matter unfortunately is complicated by what her general practitioner regarded as the plaintiff's faulty posture, lack of fitness and excessive weight. There have certainly been complaints of lumbo sacral pain in later consultations with her general practitioner. The judge noted that the plaintiff's complaints had not been consistent, and there is support for this view in Dr Stanley's reports and other reports as well. He was also troubled by his assessment of this young lady as he saw her in the witness box. He said: 2 UNREPORTED JUDGMENTS She had difficulties, I thought, in communicating her thoughts and bearing these matters in mind I still come to the assessment of this young lady as one who is not suffering to the extent to which Dr Burgess is prepared to make a diagnosis. One of the matters that the trial judge relied upon was the fact that the plaintiff had been able to continue to play her pre-accident sport of hockey, which he thought was inconsistent with the view that she was suffering a disc injury. His Honour also drew conclusions about the plaintiff's motivation for work. He said: This young lady does not seem to be particularly well-motivated as I have assessed her in the witness box. It was put to her by Mr McIlwaine that she did not genuinely wish to work and she agreed with that proposition. She was giving her father some assistance in looking after some ponies. That came to an end some twelve months ago. It didnot seem to be particularly stressful work although it was non-remunerative and she offered no explanation for why she stopped doing that other than that she did not want to do it anymore. This young lady, I feel, would be able to engage in all her activities were she so minded. The grounds of appeal pressed by Mr Rickard on behalf of the appellant were grounds 1 and 5 which alleged that the trial judge failed to give adequate weight to the documentary medical evidence tendered in the appellant's case, and gave excessive weight to the medical evidence in the respondent's case. There are obvious difficulties with these grounds. The trial occupied parts of 31 August and 1 September 1995. Only two witnesses were called and the judge reached his conclusions as a result of accepting the evidence of Dr Meachin, rejecting some of the documentary medical evidence for the plaintiff and to some extent discounting her oral evidence. The appellant is therefore confronted with the familiar restraints on appellant intervention established in Abalos v Australian Postal Commission and other cases. In attempting to displace the findings challenged in these grounds of appeal, the appellant is unable to point to any facts incontrovertibly established with which those findings are inconsistent, or to assert that the findings were glaringly improbable. In these circumstances the failure of these grounds of appeal, in my judgment, is inevitable. The next ground of appeal is in no better position. It asserts that the trial judge failed to give any or adequate weight to the evidence of the appellant. The appellant, however, as I have said, gave oral evidence at the trial. The judge was able to assess her in the witness box, an advantage not available to this Court. He noted matters such as inconsistent complaints to medical practitioners, but also drew attentionto her lack of motivation, congenital conditions not associated with the injury, and her ability to engage in hockey after the accident. The appellant has again been unable to demonstrate that the judge's findings with regard to the appellant's evidence are either glaringly improbable or inconsistent with facts incontrovertibly established. There remains ground 4 in which the appellant challenges the opinion, documentary and oral, given by Dr Meachin in the defendant's case. Dr Meachin, in his report of 7 October 1994, mentions that the plaintiff presented for examination on that day with twenty earrings, ten in each ear. He concluded his report by indicating that he was not convinced that she was as seriously incapacitated as she made out and suggested that she might be discreetly observed by someone on behalf of the third party insurer. URJ SHARON COBB v TROY LEE COBB (Handley JA) 3 Dr Meachin gave oral evidence at the trial and was cross-examined. The appellant submitted that the trial judge should have concluded that his oral and written evidence was biased and not based on appropriate expert reasoning. These challenges raised matters of fact for consideration by the trial judge, and presumably were the subject of submissions by counsel for the plaintiff at the trial. His Honour, who heard and saw Dr Meachin give evidence, was satisfied with his opinions and accepted them in preference to the documentary evidence tendered for the plaintiff. It is impossible for this Court to interfere with those findings. In the circumstances all grounds of appeal, clearly and ably urged by Mr Rickard on behalf of the appellant, fail and in my judgment it follows that the appeal should be dismissed with costs. Cole JA. I agree. Beazley JA. I agree. Handley JA. The order of the Court therefore is appeal dismissed with costs. Orders accordingly. Counsel for the appellant: D Rickard Solicitors for the appellant: McIntosh Emerton and Thomas/Turner Whelan Counsel for the respondent: M Williams Solicitors for the respondent: Abbott Tout