New South Wales Court of Appeal CITATION: George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136 HEARING DATE(S): 10/02/05 JUDGMENT DATE: 5 May 2005 JUDGMENT OF: Handley JA at 1; McColl JA at 2; Brownie AJA at 3 DECISION: 1. Appeal allowed. 2.Judgment of the District Court set aside. 3. Order that there be a new trial, before a different judge, limited to damages. 4.Order that the respondent pay the appellant's costs of the appeal, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 5.The costs of the first trial to be in the discretion of the judge conducting the second trial. CATCHWORDS: Evidence - Browne v Dunn - No sufficient challenge to evidence eventually not accepted Damages (Infants and Persons of Unsound Mind) Act 1929 LEGISLATION CITED: Motor Accidents Act 1988 s79A Suitors' Fund Act 1951 Browne v Dunn (1894) 6 R 67 CASES CITED: Digi-Tech (Australia) v Brand [2004] NSWCA 58 APPELLANT George Mkari by his Next Friend Youssef Mkari PARTIES: DEFENDANT Daniel Meza FILE NUMBER(S): CA 40824/03 Mr D Kennedy SC with Mr P Frame - Appellant COUNSEL: Mr I Harrison SC with Mr W Fitzsimmons - Respondent APPELLANT Keddies SOLICITORS: RESPONDENT Moray & Agnew LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 989/02 LOWER COURT JUDICIAL OFFICER: Gibb DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40824/03 DC 989/02 HANDLEY JA McCOLL JA BROWNIE AJA Thursday 5 May 2005 GEORGE MKARI by his Next Friend YOUSSEF MKARI v DANIEL MEZA JUDGMENT 1 HANDLEY JA: I agree with Brownie AJA. 2 McCOLL JA: I agree with Brownie AJA. 3 BROWNIE AJA: The appellant sued the respondent for damages for personal injuries sustained in a motor accident that occurred on 27 October 1998. The parties agreed that the respondent had been negligent, that the appellant had been contributorily negligent, and that it was appropriate that his damages be reduced by 25 percent, and in due course that settlement was approved, pursuant to the provisions of the Damages (Infants and Persons of Unsound Mind) Act 1929 (the appellant being a minor). However, the parties litigated the question of the measure of damages. The learned trial judge, Gibb DCJ, assessed those damages at $113,117.45, and gave judgment for the appellant for 75 percent of that sum, $84,838.09. The appellant challenges some of her Honour's findings, and generally asserts that the damages awarded were inadequate. 4 The appellant was a pedestrian, who came into collision with the respondent's car. The appellant was thrown onto the bonnet of the car, and his head struck and broke the windscreen. He was thrown to the road and came into collision with a parked car. It was not in dispute that he fractured his right humerus, suffered some head injury, and various soft tissue injuries, nor that there was some continuing disability as at the time of the trial. The main issue, both at trial and on appeal, was whether, as the appellant's case asserted, he suffered from some mild organic brain damage, or whether, as the respondent's case asserted, he was suffering only from some psychological symptoms; and this issue overlapped with questions about the extent and severity of his disabilities. There was also a dispute as to whether the appellant had injured his low back in the accident. 5 The Judge found that the appellant suffered no brain damage and no low back injury. She proceeded to assess damages on the basis that the appellant's orthopaedic injuries had resolved, with some lingering residual effect (Red 165 H), and that although he had suffered no organic brain damage, he did suffer, as a result of the accident, from a mixed anxiety depressive disorder the anxiety element of which that was moderately severe, and post-concussive symptoms which included headaches, dizziness and forgetfulness (Red 125 O-U), with the result that he needed counselling (Red 126 L). 6 The respondent conceded (Red 27 H), and her Honour found (Red 164 M) that as a result of the dizziness from which he suffered, the appellant had fallen during 2002, and injured his left elbow, leaving him with a small keloid scar there. In addition, he has scars to his head and his right elbow, direct results of the motor accident; and he is sensitive about his scars (Red 165 H). 7 The Judge found, for the purposes of s 79A of the Motor Accidents Act 1988 (the Act), that damages should be assessed on the basis that the severity of the non-economic loss of the appellant was 27 percent of a most extreme case, and awarded $31,000 under this head. She made an allowance for past economic loss, and allowed $5,061 for future out-of-pocket expenses, representing the cost of medication for headaches and dizziness, together with the cost of counselling. For the purposes of s 70A of the Act, her Honour found that there was at least a 25 percent likelihood of future economic loss, and awarded $58,240 under this head. As a matter of arithmetic this represented a 50 percent likelihood of loss of income for three years, calculated at the rate of average weekly earnings, and the Judge noted that one might arrive at almost the same figure by awarding 10 percent of average weekly earning rates throughout the appellant's working life, viewing this as a "cushion". An allowance was then made for lost superannuation benefits, calculated by reference to the figure of $58,240; and a finding was made (Red 176 T) that it was not appropriate to award any sum in respect of domestic assistance, either past or future. 8 When the accident happened, the appellant was 12 years old, and in Year 7 at school. At the time of trial, in 2003, he was 17, and in Year 12. 9 There were four lay witnesses who gave evidence at the trial: the appellant, his father Youssef Mkari, his mother Norma Mkari, and his sister Jessica Mkari. Many medical reports were tendered. For the appellant, there were reports from Dr Abdalla, treating general practitioner; Dr Younan, treating psychiatrist; Dr Guirgis, treating orthopaedist; Dr Mahony, medico-legal orthopaedist; Dr Clark, medico-legal psychiatrist; Dr Bleasel, medico-legal neurosurgeon; Dr Yiannikis, consultant neurosurgeon; Dr Jungfer, medico-legal psychiatrist; Dr Davis, medico-legal specialist in occupational medicine; and Dr Banks, medico-legal neuropsychologist. There were also tendered various hospital and ambulance records. For the respondent, there were reports from Dr Mellick, neurologist; Associate Professor Oakeshott, medico-legal specialist; Dr Harvey, orthopaedist; Dr Carroll, ENT specialist; and Dr Bogan, neuropsychologist. The evidence also included reports from others concerning the results of various tests performed. Only Drs Clark, Jungfer and Mellick gave oral evidence. 10 The learned trial judge rejected large parts of the evidence of the four lay witnesses, and then rejected large parts of the medical reports that favoured the appellant's case on the basis that the authors of those reports had been given unreliable histories, upon the basis of which they had expressed opinions. That is, her Honour found that the lay witnesses gave unreliable evidence, and in addition had made unreliable statements outside the court. 11 On appeal, the critical issue appeared to become whether these findings were justified, given the way that the trial had proceeded. In particular, the appellant complained that in relation to several of her Honour's findings, reflecting adversely upon the credit of the appellant, his father, his mother and his sister, there had been no cross-examination of these witnesses, sufficient to justify the attacks made upon them by the respondent, or the findings of the Judge. 12 In summary, it was the appellant's case that he had been rendered unconscious in the accident, and that he had suffered some mild organic brain injury. Strands in that case, of organic brain damage, included the proposition that he had suffered from post traumatic amnesia, that he had been unable to recognise people for some days after the accident, that in the succeeding years he had not performed as well at school as he had before the accident, that his efforts to perform better left him tired, that the results of some of the tests carried out by the neuropsychologists (Drs Banks and Bogan) pointed towards the existence of organic brain damage, and that the complaints of continuing headaches and dizziness, as well as of altered conduct, pointed in the same direction. The respondent's case may be summarised by saying that he suffered only from a psychological condition and/or that his headaches were of vascular origin and/or that some at least of his complaints were related to his being a 17 year old boy and/or affected by cultural matters and/or by his mother's psychological reaction to his injuries and disabilities. 13 Her Honour found that the appellant was rendered unconscious in the accident, but only for at most 1-2 minutes. No witness deposed to either of these times, but no medical witness seemed to think that the precise period of unconsciousness was significant, for the purpose of diagnosis as to whether or not there was organic brain damage, so that there is little or no point in examining the question of the duration of the appellant's unconsciousness. 14 An ambulance record showed that the ambulance had been "booked" at 1548 hours, apparently very shortly after the accident occurred. The report showed Glasgow Coma Scale recordings of 15 at 1600 and again at 1630 hours, that the appellant did not remember the accident, and that he was slightly disoriented. He was taken to the Royal Alexandra Hospital for Children, arriving at 1634 hours. It was noted upon admission that he had been confused and drowsy since the time of the accident, that he responded "to voice", and was "disoriented in time". A head CT Scan was ordered due to a "high impact injury", and it was noted that he was drowsy and slightly confused. Glasgow Coma Scale tests were carried out on nine occasions between 1641 and 1830 hours. On five of those occasions the reading was 15, on one occasion 14, and on three occasions 13. There was evidence, accepted by the Judge, that the fluctuating results recorded may have reflected the fact that the appellant had been treated with morphine. 15 The note of the surgical registrar recorded that the appellant was oriented as to the year and month, but not the day, that he did not remember the accident, that he followed commands, that he perseverated as wanting water, that he recognised a "friend", and that he "asked if the accident was today". A CAT scan showed no abnormality. Neurological observations were requested, and it may be that nothing was done, other than to make the observations reflected in the Glasgow Coma Scale readings. Perhaps this was all that was intended. The note of a nurse records that at 2225 hours he was oriented as to the year and day, and that he did not remember the accident. 16 The appellant was discharged from hospital after five days, and had returned to school by 25 November 1998 (Blue 143 B). Apart perhaps from complaints to members of his family, about which there is dispute, he is not shown to have made many complaints until the year 2000, about the time at which, apparently, he (or his parents) consulted solicitors. However, he did attend again at the hospital on 25 November 1998 saying that he had been having dizzy spells "most days". He saw his general practitioner, Dr Abdalla, on 8 January 1999, complaining amongst other things of headaches and dizziness, for which the doctor prescribed analgesics. The next (relevant) visit to Dr Abdalla was on 26 May 2000, when he complained of lumbar pain, for which analgesics were prescribed, followed by further visits on 31 May and 26 June 2000, when he complained amongst other things of headaches, dizziness and back pain. He was then referred to Dr Guirgis, orthopaedist and Dr Younan, psychiatrist. Thereafter he saw Dr Abdalla from time to time, was referred to a plastic surgeon, and prescribed analgesics. The appellant first saw Dr Guirgis on 20 June 2000, and Dr Younan on 7 July 2000. Dr Younan referred the appellant to Dr Yiannikis, neurologist, who first saw the appellant on 31 August 2000. The first of the medico-legal consultations was in 2002. 17 In this context the evidence of the appellant, and of his parents and his sister, was of some importance. They gave quite extensive evidence, and were extensively disbelieved. The appellant says now that, given the way in which they were cross-examined, and the limitations upon that cross-examination, it was impermissible for the Judge to have rejected significant parts of their evidence. 18 Generally speaking, at the trial, the respondent's then junior counsel cross-examined the appellant, and when he received unfavourable responses, challenged them, but there were some topics, upon which there was no cross-examination, where the evidence of the appellant was rejected. However, in relation to the appellant's father, mother and sister, the respondent's then senior counsel cross-examined them, generally probing, but tacitly accepting much of their evidence, without challenging unfavourable responses. I will need to spell out the detail of this, but it is this set of circumstances, which largely speaking gives rise to the present complaints of the appellant. 19 At trial, the respondent submitted that the appellant and his family were "in many respects hard to believe and should not be easily accepted", that that appellant's complaints on a Rey Memory Test indicated "a deliberate lack of effort, probably consistent with exaggeration", and it was submitted that the evidence of the four lay witnesses was unreliable (Black 374 M-Q, 376 S-X, 377 O-U and 378 W-Y), that the appellant did not genuinely believe some of the things he said (Black 376 H-K), and that Norma Mkari was either exaggerating or over-reacting (Black 375 V-X). 20 Her Honour said (at Red 68 H-J): The family portrayal of the plaintiff is grossly exaggerated and unreliable. I find that Ms Norma Mkari was an unreliable witness, whose evidence I do not accept. I make the same [finding] about Ms Jessica Mkari. I note that the evidence by Mr Youssef Mkari, the tutor, was equally tainted by exaggeration and error; but in certain [respects] I prefer his evidence to that of George, whose evidence I also found to be greatly affected by exaggeration and misconception. 21 At other points her Honour criticised the evidence of each of the lay witnesses, as being exaggerated and unreliable. Cross-Examination based upon the Appellant's School Reports 22 It was the appellant's case that he did not perform as well at school after the accident as he had performed before the accident. At Red 41 R-U her Honour said: In many respects, the family reports of both George's pre-accident and post-accident performance are very unreliable and unhelpful. Some part of the contradictions stem from the testimony of the members of the plaintiff's family that George was a clever student, the "brightest" child in the family, who passed his childhood milestones before any of the other children in the family, encountered no difficulty at school before the accident; and was in the top class. George's progress may have compared favourably with that of his sisters, although his treating psychiatrist (Dr Younan) was told George "grew up normally, manifesting normal milestone development." But George was not at the top of his class before the accident. 23 There are many school reports in evidence, and the Judge analysed them in great detail. Unfortunately, there is ample room to take more than one view about their contents: they were compiled by several different authors over a period of years, they use different formats, and some things are not explained, or not clearly explained. 24 One difficulty for present purposes lies in the last sentence of the part of her Honour's reasons for judgment, just quoted. Broadly speaking, the reports in evidence covered two periods: the years 1996 and 1997, the appellant's last two years in primary school, and the years 1998 and following, when he was in high school. The accident happened towards the end of his first year in high school. 25 Her Honour found that the appellant "was not at the top of his class before the accident". If one focuses initially upon the primary school reports, this is not established. It is not established, either, that he was at the top of his class, but the words quoted are unqualified. The primary school reports do not tell a reader where the appellant was in his class: they are not expressed in terms permitting such a judgment to be formed, but they do record what appears to have been a student who, if not at the top of his class, ranked somewhere towards the top of his class. 26 The Judge went on to note (Red 42 D-E) that at primary school the appellant's performance showed great promise, but that that promise was not realised as he made the transition to high school, and perhaps what her Honour said at Red 41 R-U, quoted above, should be read as referring to his performance in 1998, before the accident. Even so, this is troublesome, when viewed in the context of the other criticisms made by the Judge of the credit of the appellant and of his family. If one focuses on the high school reports in 1998, and for the first semester of 1999, so as to be able to try to form a judgment as to what the appellant's progress was in his first year at high school, before the accident, the position is not as clear as her Honour appears to have found it. The appellant said in evidence that during that year he came "around about the top ten of the form", or year. In English (but not perhaps in other subjects) he was in the "A" stream, the top of four streams or classes, each of about 25 students (Black 9 G-Y). Her Honour rejected this evidence (Red 44 T). 27 The reports for the first semester of 1998 (supplementary Blue 1-7) contain reports for various subjects (English, mathematics, religious studies, visual arts, personal development/health, history, design technology/built environment, music, Arabic, French and science), and a "summary report". These are all marked "year 7", except the last-mentioned report, which is marked "year 7B". Her Honour appears to have found that this meant that the appellant had been demoted from the "A" stream in primary school to the "B" stream generally at the commencement of his high schooling, and she regarded the failure of the appellant and of Jessica Mkari to say so as reflecting adversely upon their credit (Red 45 F and N-O), and to find (Red 152 G-Y) that their evidence about the content of the school reports had been driven by a desire by the several authors of the school reports generally to encourage, rather than to assess the progress of the appellant. 28 There is a great deal of other material in evidence, some of it pointing towards the view that the appellant was not at the top of his class during 1998, before the accident, but the criticism made now is that her Honour's categorical finding that he was not at the top of his class appears to be an over-simplification, and perhaps inaccurate. 29 Whilst I do not think it can properly be put higher than this (from the perspective of the appellant), and whilst I do not think it is profitable now to attempt to make a finding as to what the facts were, an important part of the thrust on this part of the appellant's case is that the evidence of the appellant and of his family was not properly challenged in cross-examination. 30 The appellant was not cross-examined about his progress at school during 1998, except as regards his course in mathematics. He said that there were three levels available for study, and that he had chosen to study at the middle of the three levels (Black 96 G-J), and said that, whilst he had had different teachers for different subjects, there was one "home room teacher", or class teacher, where he started each day at school (Black 87 P-U). 31 Nor was the appellant cross-examined about his evidence that before the accident he had been in the top ten in the form in English, or in the "A" stream in English. (There was, of course, documentary evidence that threw this into some question, in the form of the school reports.) 32 He was cross-examined about some topics, going to the proposition that the authors of the reports intended to encourage students, rather than assess them, and I proceed on the basis that there was a sufficient cross-examination, from the perspective of the respondent, for this purpose (Black 84 K - 85 L, 88 E ff). 33 Quite understandably, given that she was two years older than the appellant, and moved in different circles to him whilst they were at school, Jessica Mkari did not give any precise evidence-in-chief about the appellant's progress at school before the accident. At Black 152 K-V she said that before the accident he had been the bright child in the family, and confident, but that after the accident he had lost confidence, and was slower, and she described these changes by reference to his conduct at home, and whilst working at a Pizza Hut outlet on Friday nights, under her supervision, in the year or so before she gave evidence. 34 In cross-examination this overall picture was, I think, challenged generally, including by reference to the school reports after the accident, but it was not suggested to her that the appellant had been demoted from the "A" stream to the "B" stream before the accident, or to the "C" stream after the accident, or that he had not been at or close to the top of his class before the accident: she was not cross-examined about these topics; and I do not see any record of any question asked of her where she might have been expected to volunteer anything of this nature, or in respect of which she can properly be criticised for not volunteering information. 35 Nevertheless, her Honour said (Red 45 F-G and N-P) that Jessica Mkari's omission to mention this was a factor she had considered, in forming an adverse opinion as to the reliability of the evidence of this witness. 36 I accept that Jessica Mkari was cross-examined in respect of her evidence that the authors of the school reports tended to encourage rather than discourage students, but the cross-examiner in substance accepted that evidence (Black 165 L - 166 O). 37 Youssef Mkari did not give evidence about the appellant's performance scholastically. Norma Mkari spoke in chief about his scholastic performance at primary school, and this evidence was not challenged. She was not asked about his performance at high school. This was understandable, and perhaps sensible, given that both of them gave evidence through an interpreter, and the reports are in English, but the point remains that the trial judge took an adverse view about their credit, in part because of a perceived inconsistency between the evidence of the family generally and the contents of the school reports, and in part, it seems, because of a rejection or at least a distrust of the evidence of the family that the appellant was the brightest child in the family. 38 Earlier, I quoted from what her Honour said at Red 41 R-U, about the family evidence of the appellant being the brightest in the family. This evidence was given by Norma and Jessica Mkari. It was not the subject of cross-examination, but her Honour compared the evidence with a history given to Dr Younan (Blue 8 S-U). It seems that the history given to the doctor was given by Norma Mkari. It was not suggested to her (or to anyone else) in cross-examination that the history given was inaccurate, or that the evidence given in chief was inaccurate, or that there was any discrepancy between the two. For that matter, it is not clear whether Dr Younan spoke Arabic (Norma Mkari's first language), or whether there was any interpreter present when he saw her, if he did not speak Arabic. 39 There was a great deal of other contention about the school reports generally, and whether they were inconsistent with other parts of the evidence. I have not dealt with these matters, because I have been focusing upon the submissions under consideration now. The Appellant's Work at the Pizza Hut Outlet 40 From about the middle of 2002 the appellant worked on Friday and Saturday nights at a Pizza Hut outlet as a "cutter", meaning that as a conveyor belt brought pizzas out of an oven, he had to take the pizzas, cut them into portions, pack them into boxes, and match each box up against the appropriate order. On Friday nights he worked under the supervision of his sister Jessica, and on Saturday nights he also worked there part-time. Youssef Mkari described him as generally working two or three hours at a time (Black 207 N-W). 41 The appellant gave evidence that he occasionally could not cope with the flow of pizzas coming out of the oven, so that they banked up and were burnt (Black 38 Y- 39 G), and he was not challenged about this, or about any other aspect of his working at the Pizza Hut. Jessica Mkari gave evidence to much the same effect (Black 153 J-N). In cross-examination, it was suggested to her that if what the appellant did caused the Pizza Hut to lose money, she would be concerned. She agreed, but said that her brother came before the Pizza Hut (Black 183 L- 184 C). The cross-examination then proceeded to suggest that the work of a cutter was relatively menial, and that the appellant might have been employed as a waiter. She replied that the appellant could not interact properly with customers, and that he might react badly to them, and she agreed that this presented a different picture painted by the school reports; and she said that she could not explain this (Black 184 V – 185 K). 42 The Judge quoted this evidence (Red 68) and criticised Jessica Mkari as "adamant" that the appellant could not work as a waiter, because he was "irascible or temperamental", and compared this picture with the picture the Judge had observed of the appellant in the witness box. 43 It is not to the point now to attempt to judge whether or not this finding should stand, and on conventional principles, the Judge enjoyed the enormous advantage of seeing the appellant in the witness box. What is important now is the Judge's criticism of Jessica Mkari: her Honour said that the witness exaggerated in her description of the appellant's behaviour, and was an unreliable witness. 44 Her Honour quoted the evidence of Jessica Mkari on this point. The cross-examiner having raised for the first time the question whether the appellant might have worked as a waiter asked why he could not do this work, and the witness replied (Red 68 P-U): Q. What does the waiter do besides take orders, give the order to whoever does the cooking and then take the orders to the table and wipe then down? Do they do anything else? A. Okay, they wipe that down, they clear and empty the stuff, put them in the bin, send them out to wash-up. They also take out drink. Nothing else. They serve customers in a friendly manner. Q. That's a pretty basic job, isn't it? A. Yeah, it is a basic job. Q. Why not George, if he has all these difficulties, one of the more basic jobs? A. Because George can't interact with customers. It's like totally not him. He can't actually sit there – a customer might say something in a nice manner but George will take it in a totally (sic) manner and just react to them. Q. So once again the picture we see of George at school is totally different to the picture of George at the Pizza Hut. Is that what you're saying? A. Yes. 45 What the cross-examiner meant by "all these difficulties" is not clear. He had earlier announced the end of his cross-examination, but then asked a series of questions about work at the Pizza Hut. The witness had spoken of the way in which the appellant did not efficiently remove pizzas from the conveyor belt, but this was irrelevant to the work of a waiter. Up until that time, nothing had been said about possible work as a waiter. The evidence does not establish whether a cutter is paid more or less than a waiter. 46 It cannot be said that the evidence of Jessica Mkari, quoted by her Honour, as to how the appellant might have interacted with the customers at Pizza Hut was challenged, except by the last question and answer quoted, comparing the picture of him at the Pizza Hut painted by her, with the picture of him at school, painted by the school reports. On balance, I think that the challenge is (just) sufficient, for the purposes of the respondent on the question now under consideration. That is, it cannot be said that her evidence on this point was not challenged. Jessica Mkari's Evidence about the Appellant's Sporting Activities 47 It was part of the appellant's case that, in consequence of the brain damage he had suffered, he had difficulty keeping up with his schoolwork, in consequence of which he was tired when he came home from school, and rested. The respondent attacked that case, amongst other ways, by pointing to his having engaged in various sporting activities, thereby indicating that he was not as tired as the appellant and his family suggested. 48 At Red 54 I-J, after referring to the evidence of Norma Mkari and criticising that evidence, the trial judge said: ….nor do I accept the evidence of Ms Jessica Mkari to the same effect, which was equally lacking in frankness by its omission of any reference to the sport which he has played over the years. The appellant submits that there was no question asked of Jessica Mkari that might properly have elicited an answer speaking of the appellant playing sport. At the conclusion of the oral argument, the Court asked for written submissions on this topic. Nothing was pointed to in this regard, and I do not see anything in the transcript that justifies the finding made, of a lack of frankness in this connection. She was not confronted with the apparent contradiction. Cross-examination about the Appellant's Altered Functioning 49 It was the appellant's case, in part, that in consequence of the brain damage sustained in the accident, he had altered in various ways. The learned trial judge said that she preferred what had been shown in the contemporaneous records to the evidence of the appellant and his family (Red 71 L-M and V-W). The appellant now submits these sweeping statements overlook or ignore a great deal of evidence by the appellant, his father, his mother and his sister, and that it was not put to them in cross-examination that they had lied when describing the appellant's symptoms, either in court, or in histories given to various doctors. 50 It was not put to any of the four witnesses on any occasion that he or she had lied. Rather, the respondent now points to a series of more or less glancing attacks. I refer below to the suggestion made to the appellant that his evidence was generally exaggerated, which suggestion he rejected. However, for present purposes I proceed on the basis that the cross-examiner did effectively enough challenge the appellant's evidence on most points – that is, except to the extent that I have referred to particular points elsewhere, the appeal should not succeed on the ground that there was a general lack of challenge made to the appellant's own evidence, but I consider that the position is different so far as concerns his father, his mother and his sister. 51 I do not think it can fairly be said that it was suggested to Youssef Mkari at any stage in his cross-examination that anything he said was untrue, or exaggerated. Rather, the cross-examination was of a gentle probing nature. All that counsel for the respondent pointed to was a passage at Black 210 Q-X. At that point Mr Mkari spoke of how he assisted the appellant to dress in the mornings. A reader of the transcript might well think that the evidence and/or earlier statement of Mr Mkari was unpersuasive, but it was not put to the witness that anything he said on that subject was inaccurate. 52 The position of Norma Mkari is different. I consider that (Black 324 G) it was put to her sufficiently that the appellant was able to recognise people, when in hospital on the day of the accident, contrary to her evidence-in-chief. Then the cross-examiner moved to the subject of the appellant's school reports. The witness agreed that the appellant had good school reports before the accident, but did not agree that he had good school reports after the accident, and all that was said then was that the reports would speak for themselves. In my view, this was not an adequate challenge, particularly as the witness gave the bulk of her evidence through an interpreter, and the reports were written in English. I accept that, to the lawyers in the courtroom, it was apparent that the respondent was contending that the reports showed, at least arguably, what the respondent contended for, but the witness herself was given no opportunity, or no realistic opportunity, to meet the criticism of her and of her evidence. She was not given a proper opportunity to respond to the criticism now made of her. 53 On the other hand, I accept that there was sufficient challenge made to her evidence that there had been no improvement on the condition of the appellant, after the time he was discharged from hospital (Black 325 M – 326 I). 54 As to the evidence of Jessica Mkari, the position is different again. It may be that insufficient attention was paid to the circumstance that she was about two years older than the appellant, fourteen years old at the time of the accident, and that he and she moved in different circles at school. 55 I consider that it is generally correct to say that a good deal of her evidence-in-chief was challenged, in the sense that she was asked to compare what she had said with the contents of the school reports, but she said, without challenge, that as she perceived the matter, his conduct at home, where she observed him, was different to the conduct noted in the school reports (Black 185 H-J); and in substance she deferred to the medical practitioners for an explanation as to this. (There was evidence from Dr Jungfer explaining this discrepancy: the appellant behaved in one way in a structured environment, for example at school, and differently elsewhere.) That is, whilst there was a challenge to the objective accuracy of what the witness said, it was not suggested to her that her evidence was exaggerated or untrue. If this circumstance stood alone, I would not regard it as important, but it is one of the elements to be considered in the overall picture. 56 There was a further question about the evidence of the witness concerning the appellant's conduct at the Pizza Hut, dealt with above. 57 Viewing the matter overall, it cannot be said that the veracity of the evidence of Jessica Mkari was challenged, or that she was challenged on the basis that she was exaggerating her evidence. Rey Tests 58 At trial the respondent submitted that the completion by the appellant of a Rey 15 Item Memory Test, administered by Dr Jungfer, indicated "a deliberate lack of effort, probably consistent with exaggeration" (written submissions, not included in the Appeal Books, but later provided to the Court). Dr Jungfer had administered this test twice, and recorded a score of 9 out of 15 on the first occasion and 15 out of 15 on the second occasion. The Judge said (Red 111 W - 112 M): The exaggeration and lack of frankness in the information provided to Dr Jungfer was not limited to that provided by his mother and sister. Dr Jungfer very reluctantly conceded that George's result in the Rey 15 item test were consistent with George not having sought to present himself in his best light for the purposes of her assessment. Dr Jungfer conceded this in cross-examination: Q. Perhaps, doctor, you're not prepared to make the concession that because this boy got nine out of 15 on his first attempt, he was either severely brain damaged or not putting in the effort. A. I'm happy to say that with a score of nine out of 15, he didn't apply full effort. … Q. Doctor, I would suggest to you that this test, as you I think conceded earlier, is a test designed to see if someone is malingering and – do you agree with that? A. It's a test of effort, yes. … Q. …It's a trick to see if they are putting in effort or not, by telling them they're doing a memory test; but really you want to check if they are putting in the effort or not. Isn't that correct? A. Yes. Q. What I suggest to you, doctor, is that when this young man gave you a score of nine out of 15, he was either not putting in effort – which may be consistent with faking or whatever – or he had a degree of brain damage which would be quite inconsistent with all the other indices about the level of any brain damage he might have. Do you agree with that? A. It told me nothing about whether or not he had brain damage. It was only a test of effort. Q. Doctor, would you at least make this concession: that a score of nine out of 15 indicates that on that test, on that go, he was not putting in full effort? A. Yes. Q. Would you agree with this: that not putting in full effort is consistent with malingering? A. It can be. I am conscious that Dr Jungfer provided a very detailed report and was, on any analysis, a very impressive witness, who testified directly and brought to bear a disinterested and analytical mind both in the writing of her report and in her testimony under a lengthy and detailed cross-examination. I do not fail to accept her opinion lightly. 59 The extracts come from the transcript of the cross-examination of the witness, but it seems appropriate to set out the passage in full, commencing after an identification of Addenbrooke and Rey tests, and then referring to the latter test (Black 230-233): Q. And although you describe it there as a test to look at effort, it is classically administered as a test to look for malingering, isn't it? A. Yes. Q. Because in reality, it's a very, very, easy test, and if someone doesn't do very well, they're either grossly brain damaged or they're faking it. Isn't that the real essence of that test? It's very easy. If you don't do very well, you've either got a lot wrong with you or you're bunging it on. A. It isn't that reductionistic. It really is testing effort rather than how much a person is or is not bunging it on. It's a test of effort, and almost certainly, people who malinger will not put in as much effort. Q. Without more, a score of nine out of 15 would indicate either a lack of effort or a severe brain damage. Would you agree? Just without more, doctor. A. No. Q. You don't. A. It's a borderline score. Q. It's borderline between lack of effort and brain damage, severe brain damage, is it? A. Sorry, no. HER HONOUR: Q. Borderline between what? A. It's borderline in terms of making no effort and good effort or little – you know, not making as much effort, and making a good effort at testing. But that was only his first score. ELKAIM: Q. Yes, we'll come to that, doctor. I'm just talking about the test and a theoretical patient. A. Yes. Q. What I'm suggesting to you is that if you administered the test and the patient gave you a score of nine out of 15, you'd be saying to yourself straightaway, "I wonder what's going on here?" A. Yes. Q. And you'd say, "I wonder if he's putting in the effort? I wonder if he's faking? I wonder if he's that brain damaged that he had brain damage consistent with a score of nine out of 15?" That would be your – in rough terms – your thought process, wouldn't it? A. The Rey 15 item looks at effort. It's not an assessment of brain damage. Q. No, but if, to take an example, someone got a score of three out of 15, okay? A. Yes. Q. That person would either be faking it or putting in absolutely no effort, or deliberately going out of their way to get a bad score. A. Yes. Q. But if they were doing their very best – okay? Doing their absolute best to answer or to memorise the 15 little things that they have to write down, and they got a score of three out of 15, you'd be saying to yourself, "Goodness me, there must be something desperately wrong with this person", wouldn't you? A. The Rey 15 item, you don't make an assessment of brain damage on their test results. That's not what you're looking for and so -- Q. So you'd go and do something else to check? A. You're doing the Rey for a very different reason; you're looking to see how much effort they're making. You're not using the Rey for an assessment of the severity of their brain damage, so you're not going to take the Rey 15 item score into account for interpreting the rest of their test results. Q. Doctor, if we just go back to the example, if you don't mind. A. Yes. Q. If a person scored three out of 15, and they were doing their very best – right? If you were satisfied that they weren't faking, deliberately not remembering, and you were satisfied that they were trying, then you would be wondering, wouldn't you, what was wrong with this person that they only scored three out of 15? You may go on to other tests and you may look at other things, but a score of three out of 15 from a person who is not malingering, is indicative of something wrong, isn't it, doctor? A. The problem is that the reason you do a Rey 15 item is to find an objective assessment of effort, because people, when they are testing people clinically, can think the person is making their best effort, and they're not. It's an objective measure of effort it's not an assessment of brain damage. So if I had someone who got three out of 15, and I thought they were making their best effort, I would do another test of effort. That's all I'd do. Q. Doctor, if the other test of effort came out at 100 per cent – in other words, they're putting on their effort – then a score of three out of 15 would be consistent with significant brain damage, wouldn't it? A. I'm not going to apply an answer to a test that's not meant to be looking for that. Q. Perhaps, doctor, you're not prepared to make the concession that because this boy got nine out of 15 on his first attempt, he was either severely brain damaged or not putting in the effort. A. I'm happy to say that with a score of nine out of 15, he didn't apply full effort. Q. Why then did you let him do it again? So he could, what, prove you wrong and allow you to say, "He's putting in all his effort and he's not faking it"? You have been -- HER HONOUR: Mr Elkaim, one question at a time. ELKAIM: Yes, your Honour. A. The manner in which you do the test is, you actually do present it to a person on more than one occasion. So three tests – some people go up to five – but until they actually score 15 out of 15. So that's a normal test procedure, to give it to a person more than once. Q. Doctor, I would suggest to you that this test, as you I think conceded earlier, is a test designed to see if someone is malingering and – do you agree with that? A. It's a test of effort, yes. Q. And it is a test which can only be indicative of effort if it is done once, because if you ask a person to do it again, saying to them, "I want to see if you can get a better score," then they're obviously – if they happen to be malingering or faking or not putting in an effort – very much alive to what they have to do the second time, aren't they? A. But you don't actually present it to the person in that way. I mean, in the testing of memory you give a person a repeated task. In the Addenbrooke it's a name and address. You don't actually say to them, "I'm looking at your effort." You should be seeing a learning curve, and it's the same thing with the Rey 15 item. You don't just give them to them on one occasion, and you don't say to them, "I'm testing to see whether you're actually cooperating." You give it to them as a memory test in part of the full assessment. Q. You give it to them as a memory test because if you told them that you were giving it to them as a test to see if they were faking, for example, or not putting in any effort, and if they wanted to fake or not put an effort in, they're hardly going to fall for it, are they? A. No. Q. You disguise it as a memory test. A. Yes. Q. But in reality it is a trick. A. It's a test looking at effort. Q. It's a trick, isn't it, to see -- A. Well -- Q. Let me finish, please, doctor. It's a trick to see if they are putting in effort or not, by telling them they're doing a memory test; but really you want to check if they are putting in the effort or not. Isn't that correct? A. Yes. Q. What I suggest to you, doctor, is that when this young man gave you a score of nine out of 15, he was either not putting in effort – which may be consistent with faking or whatever – or he had a degree of brain damage which would be quite inconsistent with all the other indices about the level of any brain damage he might have. Do you agree with that? A. It told me nothing about whether or not he had brain damage. It was only a test of effort. Q. Doctor, would you at least make this concession: that a score of nine out of 15 indicates that on that test, on that go, he was not putting in full effort? A. Yes. Q. Would you agree with this: that not putting in full effort is consistent with malingering? A. It can be. 60 To my mind, the extracts quoted by the learned trial judge carry a different meaning to the full passage. Further, the re-examination of the witness included this (Black 279 Q – 280 C): Q. The ray (sic) 15 -- A. Yes. Q. -- why would that be administered more than once? A. The main reason is that you don't want to jump to a conclusion based on one score, so you repeat it just to make sure that the person has understood the instructions, and you give the instructions exactly the same way each time you administer it. Q. Does that happen in your experience, that there (sic) sometimes a failure to properly instruct and therefore a depressed ray (sic) 15 result? A. People can not listen to the full instructions, so they jump in. If you do it properly you use the exact same words when you administer it. Q. For that very reason, because there might be some lack of attention, that you administer it more than once. A. Yes. Q. In fact if you administer it three times and got a 15 on a third occasion, but something less than that, you wouldn't – what conclusion would you draw from that? A. I mean you'd simply list their scores, and you'd probably favour more that they were making a good effort with the testing. 61 It will be remembered that her Honour said that Dr Jungfer very reluctantly conceded that the appellant's results were consistent with the appellant not having sought to present himself in the best light for the purposes of the doctor's assessment. Given that the appellant obtained a score of 15 out of 15 on the second test, there may be a question to be decided at some stage about the proper finding, but the position now is that the appellant submits that it was not put to him in cross-examination that he had been malingering, or that he had not tried to present himself in the best light. At Black 125, he was asked about Dr Jungfer carrying out tests. He said that the doctor had not told him the names of the tests, and in substance that he could not identify them from counsel's questions. He asked counsel to describe what counsel meant when asking about the Rey tests, and counsel was content to have the appellant say that he could not remember. 62 The vice in this, for present purposes, is that there is a finding that Dr Jungfer conceded that the test results were consistent with the appellant not having sought to present himself in the best light, which might only be spelt out of the last question and answer just quoted from the cross-examination, but not from the totality of the evidence on the point, in circumstances where it was not suggested to the appellant that he had not sought to present himself in the best light on this occasion. I do not overlook that there were various challenges to other parts of the appellant's evidence (some of them recorded at Red 69 – 70), and that at the beginning of the cross-examination, there was a general proposition put to the appellant (Black 47 I-K) in these terms: Q. What I want to suggest to you is this George that really you're here to give evidence about your claim and you're exaggerating, what do you say about that? A. No. Q. Are you sure about that? A. Yes. 63 This was preceded by questions about the appellant's sensitivity to his scarring, and followed by questions about his last memory before and his first memory after the accident, punctuated at Black 49 U by the remark that counsel was not criticising him. 64 An additional small matter is that at Red 39 F–K her Honour referred to the appellant's "very variable ability on straight leg raising tests", and said that the discrepancies that she recorded were "made more significant by the pattern of exaggeration that characterises the evidence" in the case; and she linked that up with the result of the Rey tests. However, the appellant was asked no questions about the straight leg raising tests. The Appellant's Sleep Pattern, and the Household Bedroom Arrangements 65 As already mentioned, one aspect of the appellant's case was that as a result of the brain damage, he had to work harder, and became tired, so that he slept in his bedroom, after coming home from school. An overlapping issue concerned the extent to which he kept his bedroom tidy, and attended to household chores generally. The investigation of these matters eventually elicited a fairly detailed account of the changes in the arrangements made within the household for the allocation of bedrooms, and to her Honour saying (Red 56 F-G) that the appellant might have given a "more frank answer" to the effect that he and his sister Priscilla had shared a bedroom until 2001 or early 2002, but not thereafter, and her quoting part of the evidence of Jessica Mkari. 66 Youssef and Norma Mkari have six children, five daughters and one son. In order of seniority they are Malaky (or Malaki), Damia, Mariette, Jessica, the appellant and Priscilla. At the time of the trial Malaky, her husband, their three children and Malaky's husband's parents lived in a "granny flat" somehow connected to the family home. Damia, her husband and their child occupied one bedroom, and each of Mariette, Jessica, the appellant and Priscilla also lived at home with their parents. 67 Up until 2001/2 the appellant and Priscilla (who was five years old when the accident occurred) shared one bedroom, and that remained the position until Damia fell pregnant. When it was appreciated that the bedroom that she and her husband then occupied would be too small for a cot to be placed in the bedroom, there was a redistribution of bedrooms within the house. In the result, the appellant moved into what had been Damia's bedroom, Mariette and Priscilla then shared another bedroom, and Damia and her husband and later their child shared a third bedroom. 68 None of this is of any significance, except for the Judge's criticism of the appellant's lack of frankness about it. 69 In his evidence-in-chief, the appellant spoke in generalities, amongst other things, about his household chores, and his sleeping pattern, but was not asked about and did not say anything about the bedroom arrangements, and the same is true of his cross-examination. At Black 65 G-T there was some cross-examination about his sleeping pattern, and at Black 134-137 cross-examination about his performance of household chores, but no question was directed to the question whether he shared a bedroom with anyone, or whether or when there was any change in the bedroom arrangements. The topic was not mentioned at all until during the cross-examination of Jessica Mkari, after the appellant had completed his evidence. I do not see any question, recorded in the transcript of his evidence, where he might properly have said anything on this topic, or in respect of which he might properly be criticised for lack of frankness. Travelling To and From School 70 At Red 56 N - 58 W her Honour extracted parts of the transcript of the cross-examination of the appellant, and of Youssef, Jessica and Norma Mkari concerning how the appellant, accompanied by his sister Priscilla, and from about the beginning of 2003 accompanied by a niece (who I take to have been a daughter of Malaky) travelled to and from school: sometimes by a school bus, sometimes being driven by Youssef Mkari, and sometimes being driven by the appellant's brother-in-law (Malaky's husband, I assume). Her Honour criticised Jessica Mkari for failing to mention that the appellant was in charge of Priscilla, and during 2003 of the niece whose name does not appear in the evidence, criticised Norma Mkari for not being frank and said that both Jessica and Norma Mkari had sought to exaggerate the level of the appellant's incapacity in this respect. However, it was not put to either of these witnesses that this was so, and I do not see a record of any question that might properly have elicited an answer, now suggested as being appropriate. Conclusions 71 The decision in Browne v Dunn (1894) 6 R 67 is well known, but, perhaps, not as well known as it should be. At 70-71 Lord Herschell LC said: "Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential for fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted." 72 At 76-77 Lord Halsbury said: "To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to." 73 The circumstances of this case were of course a good deal less stark than the circumstances of that case, but, viewing the matter overall, I think it is impossible to see how it can be said that the four lay witnesses were given a proper opportunity to defend themselves, their character or their evidence, with the regrettable result that there has been a substantial miscarriage of justice, and a new trial is necessary. 74 Given this view, there is no need to examine the other matters advanced by the appellant. 75 In Digi-Tech (Australia) v Brand [2004] NSWCA 58 at 282-291 the Court drew attention to the disadvantages attaching to overly lengthy judgments. There is no need to repeat this detail, but it does seem appropriate to draw attention to what was said then, and to observe that the reasons for judgment under review were overly lengthy. 76 I propose the following orders: 1. Appeal allowed. 2. Judgment of the District Court set aside. 3. Order that there be a new trial, before a different judge, limited to damages. 4. Order that the respondent pay the appellant's costs of the appeal, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 5. The costs of the first trial to be in the discretion of the judge conducting the second trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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