CACU v RAHMATI SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL MASON P and PRIESTLEY JA 12 May 1997 [1997] NSWCA 57 Damages — personal injury — MVA — challenge to finding by trial judge that appellant did not satisfy statutory threshold — assessment of credibility by trial judge — Motor Accidents Act 1988 Mason P. The appellant sued for damages arising out of a motor vehicle accident that occurred on 4 June 1993. She was a passenger in a car that was hit from behind and she suffered a whiplash type injury. Liability was not in issue. What was in issue primarily was whether the level of injury suffered by the appellant was sufficient to overcome the threshold for damages for non-economic loss imposed by s 79(1B) of the Motor Accidents Act 1988, that being the numbering of the section at that stage. The appellant had worked as a process worker and suffered a work related injury in the nature of a repetitive strain injury in 1986. This resulted in a compensation claim which was resolved in 1989. That claim was based upon what was accepted to be some level of continuing disability and it was this fact that added a complicating factor to the factual and medical assessment relating to the appellant's injury suffered in June of 1993. Craigie DCJ decided that the appellant did not satisfy the threshold required by s 79(1B). He had no difficulty with the six month continuous period but held in the ultimate that the appellant's ability to lead a normal life had not been significantly impaired for the relevant period. The case as presented by the appellant at trial relied primarily upon the appellant's evidence and in particular her description of the pain following the accident and in the years between the accident and the trial; and secondly, evidence of the extent of the impairment of her capacity to conduct domestic work, by that I mean non paid work at her own home; and thirdly, upon the extent and level of medication that the appellant was taking, and on her evidence taking in an endeavour to treat continuing pain flowing from the accident. As I said the matter had the complication of the pre-existing injury. The judgment indicates that his Honour's assessment of the appellant's credibility was critical to his understanding of the fact upon which he formed the determination that there was significant impairment. His Honour was not impressed by the appellant's credibility. He found that, in his view, she had exaggerated her symptoms. He was not satisfied that the continuing symptoms of injury flowed from the accident as distinct from pre-existing work related injury. An appellate court must always be careful when reviewing credibility based findings and care must also be exercised when addressing an extempore judgment lest a slip in expression or even a reason which is not sustainable is sufficient todestroy the validity of a judgment that is otherwise well within the limits of that which should not be overturned. I am conscious of these restraints. Nevertheless, it is my view that this is a case where the appellant has made out a case for a re-trial because the appellant is able to demonstrate a number of 2 UNREPORTED JUDGMENTS errors in the way the trial judge assessed credibility, and because it is just not possible to segregate those errors or to isolate them from the overall conclusion negative to credibility. I refer to six matters which move me to the conclusion I have already indicated. The first is the matter at AB 60 N-S in which, in the very first matter that the trial judge refers to as going to credit, he finds as a matter adverse to the appellant's credit the fact that she had been adamant that one of her treating specialist doctors, Dr Guirgis, was (in the judge's words) Viewed by her as wanting to perform an operation on her, something I gather she did not really want to have. But she left it quite clear that Dr Guirgis had wanted her to have the operation. His Honour said that this view which the appellant gave in her evidence was contradicted by the medical report from Dr Guirgis that had been put into evidence. I do not think that his Honour was entitled on the evidence to make this adverse finding. The plaintiff's evidence on the point is at page 26 of the appeal book. She had been giving evidence about medication and injections received from her own general practitioner, Dr Borton. Then her counsel examining her in-chief moved to say: 'And any of the occasions that Dr Guirgis had been seeing you, has he doneanything for you?' The answer she gave, 'he suggests operation, nothing else'. (I should add at this stage the appellant gave evidence through an interpreter.) I do not think that this answer was a basis upon which her credit could be attacked, particularly since what is at the highest an ambiguity in the answer was not resolved by further examination or cross-examination. Dr Guirgis was a Specialist. His opinion had said: "This injury complex was treated conservatively. Surgical treatment is not indicated at the present but should be considered if the clinical condition deteriorated'. It seems to me that the appellant's answer was a view that she was entitled to form in relation to Dr Guirgis" opinion as represented to her and recorded in the report. The second matter deals with his Honour's assessment at 61, J to N of the Appeal Book in relation to the negative credibility finding based upon the appellant not having told the Income Tax Department about some income she had received. The appellant had given evidence that she had worked for a number of weeks during the 1995-96 tax year and received some cash income. The trial judge said that he did not accept the appellant when she said 'she did not realise that it had to be returned to the Income Tax Department until just recently because, as I understand the position of income tax in this country, the accounting period for returning of income is 30 June, and this year that [sic] has not yet been reached'. I think his Honour has misunderstood the appellant's evidence given at 31 S, which was to theeffect, not that she had just learnt about the tax position, but rather that the amount of income that she had received in the relevant period was not of a level as to trigger off an obligation to return it by way of income tax return. Once again I think that if a negative credibility finding was to be based on this, the matter should have been clarified. Although it is clear that in his Honour's words a great deal did not turn on that, nevertheless it seems that something did. A third matter of concern relates to the finding at 74, Q to T where his Honour noted that the plaintiff was not sufficiently traumatised by the event of her accident to require her to go the doctor of her choice or his locum but she was, in his words 'inexplicably prepared to go to some other doctor for precisely what treatment I have no idea'. The appellant had given evidence, and she had not been URJ CACU v RAHMATI (Mason P) 3 challenged on this, that on the day of the injury she had gone to a medical centre for immediate treatment. She had gone to her GP, Dr Borton a couple of days later but finding that he was away she declined to see his locum. It seems to me that that evidence which is inherently rational does not sustain the adverse finding embodied in the passage I have just quoted. Fourthly, the way in which the trial judge dealt with the evidence about the level of medication the appellant was receiving. The appellant gave evidence (Appeal Book 28) as to the numbers and types of pain killers, anti-inflammatory tablets and sedatives she was taking under medical advice over a prolonged period of time in an endeavour to relieve what she was asserting to be regular pain. In a criticalfinding at 65 Q, the judge concluded on the evidence before him that the appellant was only spasmodically taking forms of medication. That finding was based upon reasoning his Honour engaged in a page or two earlier in the judgment when he inferred that, since one of the drugs she was taking was Brufen and since the last time she had seen her doctor was 11 May 1995 and since the trial was on 14 June 1996 and since the health scheme required more regular prescriptions to be given, therefore she must have been taking this drug only sporadically. His Honour appears to have misunderstood what I take to be a fair reading of the appellant's evidence, which was that her last visit to Doctor Borton was 11 May 1996 and not 1995. It is possible that she was referring to 1995, although I think not. Certainly if there was an ambiguity that was going to be exploited this way, it should have been clarified. The fifth matter deals with a finding at AB72 where his Honour regarded the fact that the appellant travelled to Turkey in the month after the injury, as one of the facts indicating that the injury is not of a major kind. The appellant had given unchallenged evidence that she went on a pre-booked trip to Turkey and that the cause of the trip was because her mother was ill. The appellant was 48 at the age of trial and I do not see how the fact that she went on that trip is in itself indicative of the use that his Honour made of it. The final matter relates to the way his Honour appears to have treated the appellant's evidence about housework that she did. The appellant gave evidencebe a new trial as to damages. The respondent is to pay the costs of the appeal and to have a certificate under the Suitors Fund. The costs of the first trial are to abide the event of the second trial. Orders accordingly. Counsel for the appellant: M J CRANITCH SC with R F WILKINS Solicitors for the appellant: BRUCE VERNON DENNIS Counsel for the respondent: W REYNOLDS Solicitors for the respondent: CONNERY and PARTNERS