Higgins v Granger No. Scciv-00-623 - [2001] SASC 86

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SASC 86
Decision Date: 24 April 2001

CaseChat Overview and Summary

In the case of Higgins v Granger, the appellant contested the decision of the trial judge, who dismissed her claim for damages following a motor vehicle accident. The trial judge found that the appellant had attempted to mislead both the court and the medical experts involved in the case, rendering her testimony unreliable. The appellant's claim for damages included injuries to her lower back, neck, right shoulder, right eye, and mental health issues such as panic disorder, anxiety, and depression. The court was tasked with determining whether the trial judge's findings were legally sound and if any errors warranted a reversal of his decision.

The primary legal issues before the court were whether the trial judge had erred in his assessment of the appellant's credibility and whether he had correctly considered other evidence presented during the trial. The appellant argued that the trial judge had failed to adequately consider certain unchallenged evidence that supported her claims of injury. The court needed to assess the trial judge's credibility findings and determine if they were based on substantial evidence and if they could stand despite the appellate court's differing views on the probabilities of the case.

The court examined the trial judge's conclusions and found that they were supported by a substantial body of evidence. The judge had identified numerous instances where the appellant had attempted to mislead medical practitioners and the court, leading to the conclusion that she was unreliable. This finding was deemed justified as the trial judge had adequately tested the credibility of the appellant's evidence and other witnesses. The court also found that the appellant's claim regarding other evidence, such as testimony from her former and current de facto partners, was not sufficient to overturn the trial judge's decision. The evidence presented was not entirely satisfactory and could not compensate for the appellant's lack of credibility.

The court concluded that the trial judge's findings were legally sound and should not be disturbed. The appellant's appeal was dismissed, and the decision of the trial judge was upheld. The court emphasized the importance of the trial judge's role in assessing witness credibility and the appellate court's limited scope in overturning such findings unless there was clear evidence of error or misuse of evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before 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.

Decision

Reasons for decision

DOYLE CJ (dissent) GRAY J (dissent)

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

Ratio Decidendi

Legal Principle Established

Established by:

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