NSW INSURANCE MINISTERIAL CORPORATION v BICANIN; NSW INSURANCE MINISTERIAL CORPORATION v BINOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA, HODGSON and STUDDERT AJJA 5 March 1997 [1997] NSWCA 233 Hodgson AJA This is an appeal by the defendant from the decision of Garling DCJ, given on the 19th December 1994 in two personal injury cases brought in respect of the same motor vehicle accident, in which his Honour found verdicts for both plaintiffs, who are the respondents to the appeal. It is convenient to outline briefly the background circumstances in respect of which there was little, if any, dispute, in order to clarify the issues in respect of which there was some dispute. Prior to the accident both respondents, Mr Binovski and Mr Bicanin, were employed by the State Rail Authority at Tempe and worked in the same gang of about 30 or 40 men, Mr Binovski as a time-keeper and Mr Bicanin as a labourer. Mr Binovski lived at 6 Richmond Close, St Johns Park and Mr Bicanin at flat 34/65 McBurney Road, Cabramatta. According to the respondents, the accident occurred on 4th June 1985 in Vale Street, Canley Vale, when a motor vehicle driven by one Wendy Markham was struck from the rear by another motor vehicle driven by one Osman Suhovic. According to Mr Binovski's statement of claim, he was a passenger in the car driven by Ms Markham; and according to Mr Bicanin's statement of claim, he was a passenger in the car driven by Mr Suhovic. Both alleged negligence by Mr Suhovic and claimed damages for personal injuries. The police were not called to any such accident. However, there is in evidence a document in Ms Markham's handwriting, signed by Mr Suhovic and witnessed by Mr Binovski and Mr Bicanin, in the following terms.: I Osman Suhovic reg No NDC 606 Toyota my lic no 9542JD. Take responsibility for this accident on 4.6.85 cnr Vale & Chancery St's Canley Vale. And agree to repair damage to KDI 193 owned by Wendy Markham. According to the respondents, Ms Markham, and Mr Suhovic, this document was written out and signed at the scene of the accident, which was said to have occurred at about 6.30am on the day in question. Both respondents, prior to the accident, had as their general practitioner, a Dr Strinich of Cabramatta. However, on 4 June 1985 both of them went to see Dr Pukanic at Burwood, a doctor to whom neither had been before. Mr Bicanin apparently went fairly early in the morning; Mr Binovski, apparently later on in the day. Mr Bicanin reported to Dr Pukanic that he had been the front seat passenger in car which hit another car in front of it, and complained of pain in his neck and also a headache and dizziness. Mr Binovski reported that he had been a front seat passenger in car hit from behind, and complained of severe pain in his neck and of headache. Both were sent on that day for x-rays and both saw Dr Pukanic again on Sth June 1985. 2 UNREPORTED JUDGMENTS It appears that both respondents also saw Dr Pukanic on a number of other days, that is, they both saw him on the same day on each occasion, these other days being 17th June 1985, 21st June 1985, 27th June 1985, 23rd July 1985, 31st July 1985, 29th August 1985, 4th September 1985, 23rd October 1985, 28th October 1985, and 28th January 1986. Neither respondent thereafter returned to work for the State Rail Authority. Mr Binovski resigned from the State Rail Authority on 24th January 1986, and remained unemployed until early 1988. Mr Bicanin resigned on 17th February 1986, and remained unemployed to 7th June 1987. Both respondents were referred by Dr Pukanic to Dr Mahoney, and were examined by him on 22nd July 1985. It appears that both of them were in Greenoaks Private Hospital on 2nd August 1985, for manipulation by Dr Mahoney; and that both were in the New South Wales Masonic Hospital between 19th and 26th August 1985, for further manipulation by Dr Mahoney. Both were subsequently referred to Dr Bannister. In 1986 both respondents were referred by Dr Strinich to a psychiatrist, Dr Samad, who diagnosed depressive reaction in each of them. Neither respondent told either Dr Strinich or Dr Samad about the accident, or about problems allegedly arising from it. On 17th June 1985, that is less than a fortnight after the alleged accident, Mr Suhovic, who lived at flat 32/65 McBurney Road, Cabramatta, a flat adjoining or close to that of Mr Bicanin, signed a statement on a Public Transport Commission of New South Wales form, to the effect that Mr Bicanin was injured as a passenger in a car driven by Mr Suhovic when that car hit another car. However, on 11th March 1987, Mr Suhovic made a statement to an investigator, Mr Giles, in which he said he had lent his car to Mr Bicanin to use on 4th June 1985; that he knew that Mr Binovski was to go to work with Mr Bicanin; that Mr Binovski was a friend of both of them; and that he had given the keys to them the night before. On 12th August 1988, Ms Markham signed a statement to the effect that she had left Mr Binovski's residence in St.Johns Park at about 6.15am on 4th June 1985 to drive Mr Binovski to work at Tempe, and then to go on to her residence in Sydenham; that her car was struck in the rear in Vale Street, Canley Vale; that she spoke to the other driver and passenger; and that she exchanged details with the other driver, Mr Suhovic, who signed the document to which I have referred to earlier. In that statement, Ms Markham said her car was undrivable after the accident, and that Mr Binovski's father arrived to drive them to Dr Pukanic at Burwood. It appears that Ms Markham made a claim for personal injuries arising out of this accident, which was settled in 1988 or thereabouts. On 21st January 1990, Ms Markham made a further statement, giving a similar account of the accident; but in that statement she said she drove her vehicle from the scene of the accident. She also said that she did not know the other driver or passenger, and that to her knowledge Mr Binovski did not know them either. At the hearing, both respondents gave evidence of an accident occurring as pleaded in their statements of claim. They said they knew each other from work, but were not friends; and that they did not speak to each other at the scene of the accident, and did not discuss the accident on any occasion during the times when they saw each other either at the premises of doctors or at the hospital. Ms Markham gave evidence at the hearing that an accident occurred as in the statements of claim. She said she was now the de facto wife of Mr Binovski, had been his girlfriend at the time of the accident, and had stayed with him at St Johns WARW INSURANCE MINISTERIAL CORPORATION v BICANIN; NSW INSURANCE MINISTERIAL CORPORATION v BINOVSKI (Hodgson AJA) Park the night before the accident. She also gave evidence that she had driven Mr Binovski to Dr Pukanic and that her statement made in 1988 that her car was undrivable and that Mr Binovski's father had driven them there was incorrect. Mr Bicanin gave evidence that Mr Suhovic had told him that he had an appointment with a specialist in Marrickville at 8 am on the day of the accident. Mr Suhovic gave evidence that he was going to see Dr Bannister at Marrickville on that day, and was giving Mr Bicanin a lift to work when the accident happened. He said that the statement that he had given to Mr Giles was not true; that he had given it so that Mr Bicanin would lose his court case; and that he did this because of a fight he had with Mr Bicanin, who was his brother-in-law. At the time that statement was made, a neighbour, Mrs Mazur, had acted as interpreter, and she gave evidence at the hearing that she was aware of an argument between Mr Suhovic and his brother-in-law, and that Mr Suhovic was very upset during the interview. Mr Suhovic also said in evidence that he had been seeing Dr Bannister each month prior to the accident: however, a statement was produced at the hearing which suggested that Mr Suhovic first saw Dr Bannister on 24th June 1985 and Mr Suhovic then changed his evidence to say that he was looking for an interpreter that morning to help him make an appointment with Dr Bannister. Mrs Bicanin gave evidence that on 4th June 1985, Mr Bicanin came home, and said he had been in an accident together with Mr Suhovic; and that she drove him to Dr Pukanic at 9.00 or 9.30 that morning. She also gave evidence that she knew about the subsequent argument between her husband and Mr Suhovic. Mrs Suhovic gave evidence that her husband had left home at about 6 am on the day of the accident, and had come back about 8 am saying he had an accident. She also gave evidence that she knew about the argument with Mr Bicanin, and that she had heard her husband telling Mrs Mazur to pass onto Mr Giles the material contained in the later statement; that she had advised her husband to tell the truth; and that he had said to her that he was going to "talk untrue to see him losing his claim". At the hearing, it was submitted on behalf of the appellant that the extraordinary coincidences to which I have referred meant that the respondents could not be believed; that they were setting up a fraudulent claim; and that both respondents had been in the same car which collided with Ms Markham's car. At the hearing of this appeal another possibility was pointed to, namely that the whole accident was prearranged. This was not put as a positive case, but merely as one possibility that had to be taken into account in considering the overall probabilities in the case. Garling DCJ held that he could not accept the evidence of either of the respondents, or of Mr Suhovic, unless that evidence was corroborated; but he considered Ms Markham and the three other ladies to be acceptable witnesses, and accordingly he was satisfied on the balance of probabilities that the accident did occur substantially as Ms Markham described. This appeal is brought on the following grounds, which are the same for both cases. 1 His Honour erred in finding that the motor vehicle accident happened in the way put forward by the Plaintiff at the trial. 2 His Honour failed to use, or misused, his advantage in seeing the witnesses at the trial. 3 His Honour failed to draw the conclusion that the Plaintiff's claim was not genuine, from the following matters: 4 UNREPORTED JUDGMENTS (i) Mr Binovski and Mr Bicanin were two work mates said to be in different cars, which were involved in a motor vehicle accident on the way to work; (ii) Mr Binovski and Mr Bicanin at the scene of the accident did not speak to each other, yet they both were out of the car and they both signed a piece of paper to signify that they were witnesses; (iii) Mr Binovski and Mr Bicanin both went to see Dr Pukanic at his surgery for treatment when neither had seem that doctor before. (iv) Mr Binovski and Mr Bicanin attended Dr Pukanic's surgery on the same day on at least eleven occasions; (v) Mr Binovski and Mr Bicanin were referred to the same specialist, Dr Mahony, and both attended there on the same day. (vi) Mr Binovski and Mr Bicanin were both in hospital together and both had manipulations; (vii) Neither Mr Binovski nor Mr Bicanin discussed the accident at either time, although they were in the doctor's surgery together and they were in hospital together; (viii) Mr Binovski and Mr Bicanin were both referred to Dr Bannister; (ix) Mr Binovski and Mr Bicanin both went to the same solicitor; (x) Mr Binovski and Mr Bicanin were both at the surgery of Dr Strinich on the same day; (xi) Neither Mr Binovski nor Mr Bicanin told Dr Strinich about the accident or about their musculo-ligamentous problems; (xii) Mr Binovski and Mr Bicanin were in the Masonic Hospital for one week, at the same time, yet they denied speaking to each other; (xiii) Mr Binovski and Mr Bicanin both saw Dr Samad; (xiv) Mr Binovski and Mr Bicanin retired from the State Rail Authority within two weeks of each other; (xv) Both vehicles were taken to the same repairer; (xvi) Mr Sehovic had an argument with Mr Bicanin by chance the day before an investigator came to take a statement from Mr Sehovic; (xvii) Mr Suhovic said he had an appointment with Dr Bannister who he saw regularly, but later changed his evidence to say he was looking for an interpreter to help him make an appointment with Dr Bannister; (xviii) The police were not called to the accident; (xix) There was a conflict on the evidence between Ms Markham and Mr Suhovic as to whether Mr Sehovic had his licence with him; (xx) Mr Binovski and Mr Bicanin both suffered soft tissue injuries which are difficult to confirm or deny. 4 His Honour erred in accepting the evidence of: (a) Ms Markham; (b) Mrs Suhovic; (c) Mrs Bicanin. 5 Having made the finding that neither Mr Binovski nor Mr Bicanin could be accepted, unless their evidence was corroborated, his Honour should have found that there was no corroboration for their evidence, in the evidence of Ms Markham, Mrs Suhovic and Mrs Bicanin. 6 Having found that neither Mr Binovski nor Mr Bicanin could be accepted, unless their evidence was corroborated, his Honour should have found that in any event there was the corroboration for their complaints of injuries. 7 His Honour erred in failing to find that the Plaintiff was not injured in the alleged motor vehicle accident. WABW INSURANCE MINISTERIAL CORPORATION v BICANIN; NSW INSURANCE MINISTERIAL CORPORATION v BINOVSKI (Hodgson AJA) 8 His Honour erred in his assessment of damages. The parties have provided written submissions which will be left with the papers. In oral submissions, Mr McDonald for the appellant submitted primarily that the trial judge had been in error in relying on the evidence of Ms Markham, and that for a number of reasons her evidence should not have been accepted. He submitted that the trial judge had found to be unacceptable the respondents' evidence that they did not speak to each other at the scene of the accident; and he submitted that this reflected also on Ms Markham's evidence, in that she also said that to her observation they did not speak on that occasion. He pointed to inconsistencies in her accounts concerning the speed of her vehicle at the time of the accident. He pointed to the material in her 1988 statement, to the effect that Mr Binovski's father had driven them to the doctor because her car was undrivable, that material now being admitted to be untrue by Ms Markham. He pointed to what he said were inconsistencies between material in her 1988 statement, to the effect that she had purchased the car in question, whereas at the hearing she said that the car had been initially purchased by Mr Binovski. He pointed to material in the 1988 statement to the effect that Ms Markham did not believe as at 1988 that Mr Binovski knew Mr Bicanin, this being contrary to Mr Binovski's evidence and also to the objective probabilities. He pointed to Ms Markham's evidence that she did not see Mr Suhovic produce his licence in circumstances where the other witnesses said that he did; and submitted that the objective probability was that Mr Suhovic would not have remembered his licence number to put into the written statement, if he had not had his licence with him. Mr McDonald also submitted that the falsity of Mr Suhovic's evidence of the reason why he was driving in Vale Street on that morning, namely the false evidence that he was going to see Dr Bannister, supported an inference that he was not there, and that this also reflected on Ms Markham. In all those circumstances, he submitted that the decision of the trial judge was glaringly improbable, that it did not have the support from the evidence of Ms Markham that his Honour believed it to have, and that this Court should reverse his decision on liability. Dealing first with the particular criticisms of Ms Markham's evidence, it seems to me that a number of them are very minor, and others really depend upon accepting the evidence of witnesses who the trial judge treated as unreliable. It seems to me that the criticisms concerning Ms Markham not observing the respondents speaking at the scene of the accident, and not observing Mr Suhovic's licence, can carry little weight, having regard to the time lapse, and having regard to the exigencies of a situation immediately after a road accident. The criticisms concerning the inconsistencies about speed at most, in my view, suggest insignificant problems of recollection. Rejection of Ms Markham's evidence to the effect that she did not know that the respondents knew each other depends substantially on accepting Mr Binovski's evidence, which the judge did not accept. The rejection of Mr Suhovic's evidence does not, in my opinion, support any positive inference unfavourable to Ms Markham. The conflict concerning the purchase of the motor vehicle, again, seems to be a minor matter, in circumstances where it is clear that the car was purchased at a time when Mr Binovski and Ms Markham had a close relationship which ultimately became a de facto relationship. 6 UNREPORTED JUDGMENTS The criticism concerning the statement to the effect that the car was undrivable after the accident, and that Ms Markham's father drove them to the doctor, seems to me to be a more serious matter. However, although the matter is not specifically adverted to in his Honour's judgment, I do not infer that his Honour did not advert to this matter, and take it into his account in his ultimate decision that Ms Markham's evidence could be relied on. In all the circumstances, it seems to me that the attack which has been made on Ms Markham's evidence, and on the view which the trial judge took of it, is not sufficient for this Court to say that the trial judge was wrong in accepting and acting upon her evidence. Once that position is reached, it seems clear that the attack on the trial judge's finding on the question of liability has to fail. The grounds of appeal referred to the series of extraordinary coincidences referred by the judge in relation to the matter. It seems to me that his Honour took those matters fully into account, particularly in reaching the view which he did on the credibility of the evidence of the respondents and of Mr Suhovic. It does not seem to me that those matters can take the attack on Ms Markham's evidence any further. Turning to the question of damages, it was submitted by Mr McDonald that, since the trial judge had found that the respondents' evidence could not be accepted unless corroborated, his Honour was in error in finding any significant damages in favour of the respondents. The injuries alleged were soft tissue injuries, and there just was no substantial corroboration, beyond the complaints which they made about the injuries, which confirmed that they did indeed have such injuries. In my opinion the evidence from Dr Pukanic and Dr Mahoney of their observations of the respondents, immediately after the accident in the case of Dr Pukanic, and shortly after the accident in the case of Dr Mahoney, does amount to some corroboration of their evidence of injury. Although to a considerable extent the doctors were relying on reports and complaints of the respondents, in my opinion their observation of the behaviour of the respondents at the time, and the view which they reached that the complaints were genuine and consistent with the observed behaviour, does amount to some small corroboration of the respondent's evidence. In my opinion the trial judge made no error in coming to the view that there was injury suffered, and in my opinion he took a balanced approach to the quantification of that injury and of the damages. For those reasons, in my opinion, the appeal should be dismissed. Handley JA I agree. Studdert AJA I also agree. HANDLEY JA: The orders of the Court then is that both appeals are dismissed with costs.