Higgins v Granger No. Scciv-00-623

HIGGINS v GRANGER
[2001] SASC 86
Full Court: Doyle CJ, Nyland and Gray JJ

DOYLE CJ I would dismiss the appeal. I agree with the reasons given by Gray J.
NYLAND J: I would dismiss the appeal for the reasons given by Gray J.
GRAY J This is an appeal from a decision of a judge of the District Court dismissing a claim for damages.
Background
A motor vehicle collision occurred on 23 July 1995. Negligence was admitted and the trial proceeded on the issue of damages. The respondent denied that the appellant had sustained any injury.
The appellant claimed that she had sustained
-an injury to her lower back including muscular ligamentous damage,
-an injury to her neck including disc prolapse at C6-7 level with muscular ligamentous damage,
-a soft tissue injury to her right shoulder, including tendonitis, damage to the subscapularis and supraspinatus muscles, and a glenoid laberal tear,
- damage to her right eye,
- a panic disorder, anxiety and depression.
Conclusions of the Trial Judge
The trial judge considered that he needed to resolve the following questions:
"Whether the plaintiff is demonstrated to have misrepresented her pre-accident history to the medical practitioners involved in the presentation of her case or, alternatively, failed to disclose matters which were relevant.
Accordingly, what weight can be attached to the opinions expressed by those of her expert witnesses who were called to express opinion evidence.
Whether the plaintiff is demonstrated to be unreliable in her evidence presented to court and further, indeed, whether she has been demonstrated to set out to mislead the court."
The trial judge rejected the appellant as a truthful witness. He said:
"I am forced to the conclusion that not only did the plaintiff set out to mislead the Court but that she set out to mislead all the witnesses whom she called to support her claim."
...
"It suffices to say that I found the plaintiff entirely unreliable."
...
"... I am simply unable to trust the history that the plaintiff gave to the medical practitioners she called in support of her claim."
...
"My resounding conclusion is that the plaintiff is an entirely unreliable witness. I think from the whole of the evidence she has attempted to mislead medical practitioners involved in the case to the extent that I am unable to be satisfied that their opinions are based on a true history. Accordingly those opinions cannot assist the plaintiff."
He then concluded:
"I come to the conclusion that the plaintiff has set out to mislead the Court. I am not satisfied on the balance of probabilities that she sustained the injuries complained of in the subject motor vehicle accident. Indeed I am not satisfied that she has any disability at all which results from that accident."
On appeal counsel challenged the conclusion that the appellant set out to mislead the court and all the witnesses called to support her claim. This challenge was linked with the submission that the trial judge had failed to consider other unchallenged evidence. It was submitted that this evidence supported the appellant's evidence. The trial judge should have placed weight on the evidence and made appropriate findings of fact. It was said that this other evidence was not dependant on the appellant's credit and supported her claim that she had sustained injury.
The Role of the Appellate Court - Findings of Credit
Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[1] said at (479):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbably’.”
[1] (1992-1993) 177 CLR 472
These principles were approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[2]. Kirby J said at (323):
“Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.”
[2] (1999) 73 ALJR 306
Kirby J acknowledged the many advances, both technological and social, that have increased an appellate court’s ability to assess witness credibility. At (330) he stated:
“None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.”
The Reasoning of the Trial Judge on Credit
The trial judge provided detailed reasons for rejecting the evidence of the appellant.
In accordance with District Court Rule 46.15, the appellant provided sworn particulars of injury. She did so on two occasions. On 4 December 1998 she said:
"For approximately four months following the motor vehicle accident I was wholly unable to perform my business as a dog breeder due to the pain, discomfort and restriction of movement I experienced in relation to my groin, lower back, right leg, right arm, right shoulder and headaches and the blackouts I was experiencing."
The alleged total inability continued until late November 1995.
On 19 November 1999 she said:
"In relation to my dog breeding business, I was restricted in my ability to undertake my usual duties including washing, brushing, training, walking and showing my dogs due to the pain and restriction I experienced in relation to my lower back and right leg."
Approximately nine hours of video footage taken on 27, 28 and 29 October 1995 at a Rottweiler Club championship was tendered.
The appellant did not complain about the admissibility of the video footage. However it was submitted that the trial judge should have approached the videos more cautiously given they had been edited. The videos had been taken by the club for its own purposes. They formed part of the club's records. Whilst the tapes had been edited, the editing was performed by an independent club member who had no knowledge of this litigation.
The film recorded a number of competitors, including the appellant. The appellant showed her dogs over the three days on a number of occasions each day. She did not suffer any apparent discomfort or restriction. The appellant moved her neck without any apparent difficulty, bent and moved her back without any apparent restriction. She ran and jogged in a normal manner. She moved freely.
A further video was taken by agents of the defendant's solicitors in September 1998 at a dog exhibition. This video recorded the appellant undertaking similar unrestricted movement with no apparent discomfort.
A fellow South Australian competitor gave evidence of observing the appellant on many occasions both before and after the motor vehicle collision. The witness observed no difference in the appellant's movements or conduct when showing her dogs both prior to and following the collision. The trial judge found this witness to be impressive and credible.
The trial judge concluded that the appellant's evidence contradicted her earlier sworn particulars. He was left with "the conviction" that the appellant had attempted to mislead the court.
The appellant asserted in evidence that she had no recollection of making workers compensation claims prior to the collision. Evidence clearly established that the appellant had claimed workers compensation for an anxiety, stress condition and had needed time away from work. The trial judge considered this to be important evidence in reaching his conclusion that the appellant was without credit and had sought to mislead the court.
At trial a substantial body of evidence was led about the history the appellant gave to a number of medical practitioners. The appellant gave a history of having no health problems prior to the motor vehicle collision to Dr Blakemore, Dr Hamel, and Dr Ford. She claimed to be fit and well. She claimed to have no emotional trouble before the collision. This proved to be incorrect. A report from a treating psychiatrist established that the appellant had ongoing problems. She had received treatment during the four years before the motor vehicle collision. Throughout that period she complained of physical and emotional problems.
The trial judge considered the video films to have further relevance. They recorded the appellant to be free from any apparent disability. He took the view that the appellant's claims in evidence were inconsistent with the general picture disclosed by the films. A review of the films confirms that the appellant had, at those times, free and unrestricted movement. As earlier observed, the films record the appellant engaging in unrestricted movement of her neck and back and running and jogging distances of some 100 metres without apparent difficulty.
The trial judge considered the appellant to be an evasive and unconvincing witness. He said:
"She left me with the distinct impression of a person who was trying to evade the truth in order to mislead the Court."
It has not been shown that the trial judge has misused his advantage, or that he has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence. His reasons identify a substantial body of evidence which supports his conclusions. I do not consider there to be any error in his conclusion that the appellant set out to mislead the examining medical practitioners and the court. In my view, the trial judge's conclusions about the appellant's lack of credit were justified.
Other Evidence
Counsel for the appellant suggested that there was other medical evidence that established that the appellant had suffered some injury. Attention was drawn to the evidence of three general practitioners, an orthopaedic surgeon and a neurosurgeon. The difficulty confronting this submission is that each practitioner relied at least to a significant degree on the accuracy of the history provided. The trial judge concluded that the appellant was a dishonest historian who set out to mislead her medical advisors. As this finding has not shown to be incorrect the conclusion of the trial judge that the medical evidence could not be relied upon was open to him.
Evidence was led by the appellant from her former de facto partner and her present de facto partner. Both witnesses spoke of their observations of the appellant. Generally they presented a picture of the appellant appearing to suffer some disabilities after the collision. It was said that as the evidence was unchallenged in cross-examination the trial judge was bound to accept and act upon it. It was complained by counsel for the appellant that the trial judge failed to specifically address this evidence.
In my view this submission should be rejected. The evidence of the witnesses was not entirely satisfactory. Mr Braun's credit was directly challenged. There were inconsistencies in the evidence of the two witnesses. The respondent had made it plain from the outset of the case that the suggestion that the appellant had suffered any injury was challenged. I consider that the witness's evidence was adequately tested. In any event, their evidence could not act as a "make weight" in circumstances where the appellant was without credit for the reasons mentioned earlier.
The Right Shoulder Injury
It was accepted that the appellant suffered a right shoulder disability. The issue at trial was one of causation. There was a history of earlier injury to the right shoulder. These problems may also have been caused or exacerbated by the appellant's work with dogs. The trial judge concluded that he was not satisfied on the balance of probabilities that any injury to the appellant's shoulder had been caused by the motor vehicle collision. Such a conclusion was open to the trial judge on the evidence. No basis for disturbing his conclusion has been made out on appeal.
The Adverse Witness Ruling
A further issue arose at trial relating to the appellant's credit. This concerned her evidence about the sale of a house property occupied by the appellant and Mr Braun. It came to the defendant's attention that the appellant had, whilst giving evidence, spoken to her former de facto Mr Braun on this issue.
Mr Braun spoke to the defendant's advisors during the trial. He provided a signed statement within four days of the conversation. The appellant was recalled and the conversation put to her. She could not recall the conversation.
The written statement of Mr Braun included the following:
"On Thursday 9 March 2000 in the afternoon, I received a telephone message at work that Mark Dart had telephoned and wanted me to call back.
On Thursday 9 March 2000 when I arrived home at approximately 8.10 pm I received a telephone message from Mark Dart on my answering machine asking me to call him back.
I called him back and Carol Higgins answered the phone.
To the best of my recollection I recall the following:
I asked if Mark was there and she said 'yes, but could I have a word first.'
I said 'I have spoken to my solicitors and they said I don't have to speak to anyone about it.'
Carol said 'I just want to talk to you.'
She then asked whether they (meaning the solicitors acting for SGIC) had spoken to me.
She asked what I had told them and what questions they had asked me.
I said I was not willing to say.
She said 'it seems to be coming down to this house thing, you don't remember much about it do you.'
I said 'I remember what I remember.'
She said 'they are trying to fuck up our lives'
I said 'I have people ringing and bothering me at work as well.'
She kept asking questions, trying to get information about what people were asking me.
She was trying to appeal to me and saying 'trust me'.
Carol said 'I am only calling on a favour, the less you can remember the better.'
She then continued talking about people stuffing up their lives and started crying.
Mark Dart then came to the phone.
I said he had better go to Carol because she was upset.
He then hung up."
The trial judge disbelieved the appellant's claim that she did not recall the conversation.
Mr Braun gave evidence within a few days of making his statement. He recalled the conversation but provided a substantially different account. The trial judge ruled that in the circumstances Mr Braun was an adverse witness. Reference was made to R v Hutchison[3]. The trial judge then said:
"My impression, having heard Mr Braun, is that in view of his previous statement and the evidence he has given before me, he is, for whatever reason, withholding the complete truth about the topic of his conversation with the plaintiff. I don't mean to suggest that he is doing that with some malicious intent, but I am satisfied that the provisions of s.27b are met. Accordingly, I grant the application to have him declared an adverse witness and for him to be cross-examined on the topic of the statement given to and prepared by Ms Birchall and signed by Mr Braun on 13 March in the year 2000."
This ruling is challenged. Counsel for the appellant submitted that the fact of inconsistency between the statement and the evidence was not a sufficient basis to support a finding that Mr Braun was hostile.
[3] (1988-90) 53 SASR 587
Section 27b of the Evidence Act 1929 (SA) provides:
"A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but if the judge is of opinion that the witness is adverse, the party may -
(a) contradict the witness by other evidence; or
(b)by leave of the judge, prove that the witness has made, at any other time, a statement inconsistent with his present testimony: Provided that, before giving such last-mentioned proof, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement."
It is well established that the test is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him or for the advancement of justice. The test does not depend on the motive of the witness in withholding evidence or giving false evidence - R v Hutchison[4].
[4] (1988-90) 53 SASR 587
In McLellan v Bowyer[5], Dixon CJ, Kitto and Taylor JJ said at (104):
"A further subsidiary point is, however, raised by the respondent. In the course of his ruling upon the application his Honour referred in some detail to the observations in R. v. Hayden & Slattery [1959] V.R. 102 and after stating what he considered to be the appropriate test he stated his ultimate conclusion in the following words: 'Having regard to the statement made almost contemporaneously with the accident and its complete divergence from the evidence which has been given by the witness in his evidence in chief, I am not satisfied that the witness has shown himself willing to tell the whole truth for the advancement of justice.' The point made is that his Honour should not have given leave to treat the witness as hostile unless he came affirmatively to the conclusion that the witness was deliberately withholding material evidence. There is no doubt that upon this particular issue the appellant carried the onus but upon consideration of his Honour's ruling as a whole there can be little doubt that he was so affirmatively satisfied."
[5] (1961-62) 106 CLR 95
I reject the appellant's complaint with respect to this ruling.
In my view there was a sufficient basis for the judge's order. The proximity between the telephone call, the statement and Mr Braun's evidence is significant. The nature of the inconsistency is also relevant. Having regard to the contemporaneity of the statement to the conversation and its complete diversion from the evidence of Mr Braun the trial judge was entitled to conclude that Mr Braun was unwilling to tell the whole truth for the advancement of justice.
Conclusion
None of the grounds of appeal advanced have merit. This appeal is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (1992-1993) 177 CLR 472
2 (1999) 73 ALJR 306
3 (1988-90) 53 SASR 587
4 (1988-90) 53 SASR 587
5 (1961-62) 106 CLR 95

[2001] SASC 86

24 April 2001