Caruso v Iarossi and SGIC No. Scciv-03-340

CARUSO v IAROSSI and STATE GOVERNMENT INSURANCE COMMISSION
[2003] SASC 177
Magistrates Appeal: Civil

SULAN J The appellant, to whom I shall refer as the plaintiff, brought an action in the Magistrates Court seeking damages for personal injuries arising out of a motor vehicle accident. The respondent, to whom I shall refer as the defendant, admitted that her vehicle made contact with a stationery vehicle in which the plaintiff was seated. The plaintiff alleged that she had suffered injuries to her shoulder and thoracic spine in the accident. The learned Magistrate concluded that the plaintiff had failed to prove that she had suffered injury in the accident and he dismissed her claim.
The agreed facts
It was agreed that on 18 September 1998 in North Street near the Hectorville Primary School, the front number plate of a vehicle driven by the defendant came into contact with the ball of a tow bar fitted to a Mitsubishi Nimbus people mover motor vehicle (“Nimbus”) in which the plaintiff was seated (“the accident”). The plaintiff was seated in the middle seat of the middle row of the vehicle and her brother was seated in the driver’s seat. The plaintiff was sitting forward in about the middle of the seat with her torso in a forward position about 20 degrees from the perpendicular. She was talking to her brother when the defendant’s motor vehicle came into contact with the Nimbus. The plaintiff was not wearing a seat belt.
In about 1978, the plaintiff had sustained an injury in the region of her lower spine as a result of an industrial accident. In 1986 the plaintiff had sustained a whiplash injury. On 1 September 1997, the plaintiff fell in a shopping centre and sustained an injury to the left side of her chest, rib cage and shoulder area. She also bruised a knee and injured her finger. She also had made a claim for negligence in respect of a treatment she had undertaken for varicose veins.
The Evidence before the Magistrate
The plaintiff described the accident in examination in chief. She said:
“A.Suddenly I just felt this bang in the car but I don’t know that the bang was coming from and then I was sitting and I was cross with my brother.
Q.After you felt the bang, what happened after that.
A.I was cross with my brother and I said ‘What are you doing’ I thought he had done something. I said ‘What happened’ because I was jumpy and he said ‘I didn’t do anything, that is the person in the back, she must hit the car in the back’ he said.”[1]
[1] Trial Transcript page 3
She described how she felt something jumping in her spine. She said she felt a little bit of pain. In cross‑examination she was asked:
“Q.Did you feel the car move or did you feel something in your spine.
A.The car must have moved because I felt a big bang -
Q.Please stop. You said the car must have moved, what I am asking you is did you feel the car move.
A.I felt the car was lifting up, it was a bang and then I felt this bang in my back and I didn’t know where this bang was coming from and then I scream to my brother because I was thinking he done something wrong in his seat or something, I don’t know.
Q.You say a bang, did you hear a noise.
A.It wasn’t a noise, no, no noise. It was just my back felt the jolt, it was a very hard - just a movement and that’s what I felt and what happened?. I said ‘What are you doing?’ that was my first expression when I talk to my brother.”[2]
[2] Trial Transcript page 17
The defendant was asked:
“Q.Do you remember an incident when your vehicle came into contact with a Nimbus in front of you outside the primary school.
A.I don’t remember hitting the car, I just pulled over and went to park.
HIS HONOUR
Q.Is it your evidence that you don’t recall that you touched the other car.
A.I didn’t feel the impact, Your Honour, I didn’t feel anything, that’s why I got out and I just went on to pick up my daughter.”[3]
[3] Trial Transcript page 65
In cross-examination it was put to the defendant that she had been aware that she had hit the car and had ignored it, hoping that no-one would have noticed. She denied that proposition and repeated that she did not feel anything and that she only became aware that there was any indication of the two cars making contact when the plaintiff’s brother suggested to her that she had hit his car. She said that she relied on what she had been told. She then went back to her car and reversed it. She said that, together with the plaintiff’s brother, she looked at both cars and as far as she could see there was no damage. The following was put to her in cross-examination:
“Q.I suggest that your car was touching the one in front because you banged into it.
A.But I didn’t feel anything.
Q.Do you deny that you banged into it.
A.When he told me I said ‘Sorry’, yes, but I didn’t feel anything when I parked my car.
HIS HONOUR
Q.Did you hear anything.
A.Nothing, Your Honour. This is the bizarre thing.”[4]
[4] Trial Transcript pages 70-71
On 3 October 1998 the plaintiff attended her general practitioner Dr Crawley about a cough. At that consultation she did not mention that she had been involved in the accident, nor that she had suffered any injury to her shoulder or her spine as a consequence. She saw Dr Crawley again on 14 October 1998 at which time she first mentioned the accident. According to Dr Crawley, the plaintiff said that she had been too embarrassed to mention the accident at the consultation on 3 October because of the previous accident in 1997 and the claim regarding varicose vein treatment. Dr Crawley concluded in her report that it was likely that the accident on 18 September 1998, although probably not involving a great impact, aggravated some underlying trouble with the plaintiff’s spine. She was of the opinion that the plaintiff’s condition would slowly return to her pre-accident condition without residual disability.
The plaintiff was referred to Dr von der Borch. He reported that his physical examination of the plaintiff found no abnormality in the lumbar spine and no neurological abnormalities in the upper or lower limb. CT scans did not reveal any significant abnormality. He was of the opinion that the plaintiff had probably suffered a musculo-ligamentous strain of the mid-thoracic area, from which he anticipated she would make a full recovery. He considered that her spinal condition would eventually resolve to its pre-accident condition. In a later report dated 7 June 2000, he reconfirmed that he had been unable to identify any clear-cut bone or joint injury.
During cross-examination Dr von der Borch was provided with greater detail about the circumstances of the accident. He agreed that the conclusion in his report, that the plaintiff probably suffered a musculo-ligamentous strain of the mid thoracic area, was too strong an expression and that given the circumstances of the accident, that there was minimal contact and no damage to the vehicles, he would have concluded that she possibly suffered a musculo-ligamentous strain of the mid-thoracic area.
Dr Wright, an occupational physician, had treated the plaintiff prior to the accident. He first saw her on 22 June 1998 after she had fallen at a shopping centre in September 1997. She had been referred to Dr Wright by Dr Crawley. Dr Wright saw her on two further occasions prior to the accident. He again saw the plaintiff on 1 December 1998, when she told him of the accident and complained to him about a pain up and down her spine. He concluded that she had suffered no significant injury in the motor accident and that she was misattributing her symptoms to the accident. He also concluded that the plaintiff suffered from marked anxiety, and that emotional distress was inter-acting with her physical symptoms. In his evidence Dr Wright was of the opinion that the circumstances of the accident would not have given rise to a post‑traumatic situation, and that any symptoms or emotional trauma from which she was suffering was therefore unrelated to the accident.
Magistrate’s findings
In assessing the plaintiff’s evidence the Magistrate said[5]:
“I have carefully assessed and reviewed the plaintiff’s evidence. I find that the plaintiff was a direct, helpful and honest witness with most of her evidence.”
He referred to the plaintiff’s evidence about her earlier injuries. The Magistrate described the accident and referred to the defendant’s evidence. He found that the defendant was a frank, direct and honest person. He concluded that the defendant’s version of how the accident had occurred was a better and more accurate version than the plaintiffs. He did not accept the plaintiff’s description that there was a big bang and that the car lifted up on impact.
[5] Para 9 of the judgment of the Magistrate dated 3 March 2000.
The Magistrate referred to the medical evidence and concluded as follows:
“However, now that I have received and assessed the defendant’s evidence and considered the weight of all the medical evidence and the written reports, I am proceeding with caution in my assessment of the reliability of much of the plaintiff’s evidence. I am anxious not to show the plaintiff in a bad light as I find the plaintiff is trying to be helpful to the Court”.[6]
[6] Paragraph 18 of the judgment.
He dealt with the plaintiff’s evidence in some detail and concluded that the explanation about her failure to complain to Dr Crawley at the initial consultation after the accident was not true. The Magistrate reviewed the medical evidence. He concluded that the plaintiff had convinced herself that the accident had caused her additional pain in the region of the thoracic spine and right shoulder area. He found her evidence not to be accurate. He stated that he was reluctant to make adverse findings as he had sympathy for the plaintiff. He also concluded that while the plaintiff is suffering from many medical conditions, including spinal and other injuries, those conditions were not attributable to the accident. He found that the plaintiff had not proved her case, and he dismissed her claim.
Grounds of appeal
The plaintiff complains that the Magistrate having accepted her as a direct, helpful and honest witness erred in failing to find that she had proved her case on the balance of probabilities. The Notice of Appeal sets out a number of grounds which can be summarised as complaints about the failure of the Magistrate to make a number of factual findings which supported the plaintiff’s claim, his failure to give adequate weight to the evidence of Dr Crawley, and to the evidence of the plaintiff as to her injuries and the cause of her injuries.
The role of the Appeal Court
The appeal is by way of re-hearing. The powers and functions of an appeal court have been discussed in a recent decision of the High Court in Fox v Percy[7]. Gleeson CJ, Gummow and Kirby JJ in a joint judgment referred to the High Court’s decision in Warren v Coombes[8] in which the Court stated that in appeals which are by way of rehearing, the appellate court is in as good as a position to draw inferences from facts as is the court at first instance. They said[9]:
“In general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
[7] [2003] HCA 22 Judgment No S88 of 2002
[8] (1979) 142 CLR 531.
[9] [2003] HCA 22 Judgment No S88 of 2002 at 6.
Their Honours observed that appellate courts are required to weigh up the evidence and draw their own conclusions, although the court should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance for that fact. As to reviewing factual findings the majority said[10]:
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect[11]’.”
[10] [2003] HCA 22 Judgment No S88 of 2002 at 6.
[11] See Dearman v Dearman (1908) 7 CLR 549 at 564 citing The Glannibanta 91876) 1 PD 283 at 287
McHugh J reviewed a number of authorities. He referred to the decisions in Abloss v Australian Postal Commission[12] and Devries v Australian National Railways Commission[13] in which the court said that if the trial judge’s findings depend to any substantial degree on the credibility of witnesses the trial judge’s determinations should stand given that he has had the advantage of seeing the witnesses, unless it can be shown that the trial judge has ‘failed to use or has palpably misused his advantage[14]’ or has acted on evidence which was ‘inconsistent with facts and incontrovertibly established by the evidence[15]’ or which was ‘glaringly improbable[16]’.
[12] (1990) 171 CLR 167.
[13] (1993) 177 CLR 472.
[14] SS Hontestroom v SS Sagaporack [1927] AC 37 at 47
[15] Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57
[16] Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57
After reviewing a number of the authorities McHugh J concluded that Warren v Coombes (supra) was concerned with the approach of an appellate court in drawing inferences from facts admitted or found by the trial judge. Abalos and Devries were concerned with the approach of an appellate court in considering factual findings of a trial judge based upon the evidence before that judge and his assessment of the witnesses. McHugh J observed that judges, unlike juries, give reasons and consequently their factual findings can be analysed and evaluated[17]. It follows that an appellate court can more easily set aside a judge’s findings of fact. He concluded that an appellate court is not prevented from reversing a trial judge’s findings on factual matters, but there must be something that points decisively, and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of a witness or witnesses.
[17] [2003] HCA 22 Judgment No S88 of 2002 at 15
Callinan J considered the test in Devries required a glaring improbability, incontrovertible error, or palpable misuse of an advantage, before a factual finding of a trial court can be overturned. He considered that test was too high and he concluded that an appellate court is entitled to review evidence and draw its own conclusions in respect of factual matters. His Honour said[18]:
“A test of ‘glaring improbability’, ‘incontrovertible error’ or ‘palpable misuse of an advantage’ is not what the Act requires or all relevant previous decisions hold. Such a test pays, I am inclined to think, altogether too much deference to a trial judge’s view of the facts and advantages, both actual and supposed. This is not to deny, however, that deference should be paid to first instance findings of credit. It is simply to prefer a test of wrongness, and to be guided by, rather than bound by findings on credit, or on the basis of demeanour.”
[18] [2003] HCA 22 Judgment No S88 of 2002 at 34
In Shorey v PT Limited as trustee for McNamara Australia Property Trust & Ors[19] Kirby J summarized the position[20]:
“An appeal by way of re-hearing must be ‘a reality, not an illusion[21]’. The appellate court must correct decisions of the trial judge found to be wrong. This includes decisions of law; but also decisions of fact. However, in respect of decisions of fact, the appellate court must perform its functions within the limitations inherent in the appellate process and in accordance with rules validly provided by law. This involves a recognition of the significant advantages of the trial judge in fact finding, especially[22] (but not only[23]) in cases in which the credibility of the parties, or of important witnesses, was in issue at the trial.”
[19] [2003] HCA 27 S212/2002.
[20] [2003] HCA 27 S212/2002.at 5.
[21] Warren v Coombes (1979) 142 CLR 531 at 553
[22] See Jones v Hyde (1989) 63 ALJR 349 at 351-351; 85 ALR 23 at 27-28; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483
[23] See State Railways Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; 160 ALR 588
I accept that the duty of the appellate court is to decide the facts as well as the law, for itself. In so doing, I recognise that the Magistrate had the advantage of seeing and assessing the evidence of the witnesses and I therefore have regard to his findings in arriving at my conclusions.
The appeal
Mr Amey for the plaintiff referred to the finding of the Magistrate that the plaintiff was a direct, helpful and honest witness and submitted that the Magistrate’s final conclusion was inconsistent with that finding. The Magistrate had qualified his finding about the plaintiff. In finding her to be direct, helpful and honest he referred to “most of her evidence” (my emphasis). He analysed the evidence of both the plaintiff and the defendant, and made findings that he preferred the evidence of the defendant. He did not accept the plaintiff’s evidence in certain crucial respects, including the extent of the impact between the vehicles. As to his conclusions about the plaintiff’s injuries, the Magistrate accepted Dr Wright’s opinions.
I consider that his general positive conclusion about the plaintiff and her evidence was not supported by his more detailed findings. There is an inconsistency between the finding that the plaintiff was a direct, helpful and honest witness on the one hand, and his conclusion, that he preferred the evidence of the defendant about the circumstances of the accident, and his rejection of the plaintiff’s explanation about her failure to advise Dr Crawley of her injuries when she saw her on 3 October 1998.
It is clear that the Magistrate had considerable sympathy for the plaintiff however, he did not accept her evidence on crucial issues. I consider his finding that she was a direct, helpful and honest witness is unsustainable given his analysis of her evidence.
I have reviewed the evidence. As to the circumstances of the accident I consider that the Magistrate was correct in preferring the evidence of the defendant. The plaintiff’s description of the impact suggests that there was a significant impact between the vehicles. She described the collision as feeling a “bang” in the car. In cross-examination she described the car as lifting up and a bang. It is significant that the plaintiff did not call her brother as a witness. It was her brother who pursued the defendant to inform her that a collision had occurred. It is also significant that there was no damage to the numberplate of the defendant’s car which came into collision with the towbar attached to the Nimbus. If there had been an impact as described by the plaintiff, it might have been expected that there would be some damage to the numberplate.
The defendant was consistent throughout her evidence that she was unaware that the vehicles had come into contact until the plaintiff’s brother had approached her. Her conduct after the two vehicles touched was consistent with her being unaware that there had been any impact. The Magistrate preferred the evidence of the defendant. I agree with his conclusion.

I also consider it as significant that the plaintiff, who had had a number of claims and had been involved in claims for damages for personal injuries prior to this accident, did not make any complaint about her injuries until some weeks after the accident. Dr Crawley agreed that the plaintiff had never been reticent in the past in complaining about injuries. In my view, the medical evidence did not establish that the collision caused the injuries, or in any way exacerbated the plaintiff’s earlier injuries. Insofar as the evidence of Dr Wright is in conflict with the evidence of Dr Crawley, I conclude that Dr Wright’s evidence should be preferred. Although Dr Crawley is the plaintiff’s general practitioner and had seen her on numerous occasions, Dr Wright had also observed her before and after the accident. Dr Crawley and Dr von der Borch were reliant upon the plaintiff’s account of events which I conclude was unreliable. There was nothing in their examinations of the plaintiff or in the CT scans which supported the plaintiff’s description of her injuries.
Dr von der Borch conceded in cross-examination that if the impact between the vehicles was slight, so that minimal, if any, damage was observed to the numberplate of the defendant’s car, that it was only a possibility that she had suffered a musculo ligamentous strain of the medial thoracic area. In his report dated 18 January 2001, he stated that it was only the plaintiff’s description of her pains which connected her present situation with the accident.
Dr Wright is an experienced physician. As I have mentioned he treated the plaintiff before and after the accident. His conclusion that he was unable to diagnose any injury arising from the accident is supported by the fact that there was no discernible damage to the vehicles and the fact the defendant did not feel any impact between the vehicles. In my view his evidence should be preferred to the evidence of Dr Crawley. I do not consider that the plaintiff’s explanation for having failed to complain to Dr Crawley at the first opportunity is credible. In the past she had never been reluctant to complain about injuries sustained in accidents.
I accept counsel for the plaintiff’s submission that the conclusions of the Magistrate as to the plaintiff’s credibility were inconsistent, however I consider that he was correct in his ultimate decision. An analysis of the Magistrate’s reasons demonstrates that he was not prepared to rely upon the plaintiff’s evidence in respect of significant events, including the nature of the accident and the resulting injuries. It is clear that the Magistrate was not prepared to rely on the plaintiff’s evidence on crucial matters. The Magistrate did not conclude that the plaintiff had lied, but he was not prepared to accept her as a reliable witness. Having considered the evidence, I agree with the Magistrate’s conclusion that the plaintiff’s evidence was unreliable. I agree with the Magistrate’s conclusion that the plaintiff failed to prove her case.
The appeal must be dismissed.

[2003] SASC 177

13 June 2003