Srecko Biscan v Kryst Lewinski and Douglas Willans No. Scgrg-88-1908, Scgrg-88-1909 Judgment No. 3498 Number of Pages 6 Appeal

[1997] SASC 3498

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, MATHESON AND OLSSON JJ

Appeal - functions of appellate court - findings of credibility of plaintiff - Conflict of evidence - Whether trial judge's decision should be disturbed SS Hontestoom (Owners) V SS Sagaporack (Owners) [1927] AC 37; Brunskill V Sovereign Mayne And General Insurance Co Ltd (1985) 59 ALJR 842, applied.

ADELAIDE, 9 March 1992 (hearing), 3 July 1992 (decision)

#DATE 3:7:1997

#ADD 4:9:1997

Appearances :

Counsel for appellant: Mr T Anderson, QC with Ms A Faulkner

Solicitors for appellant: Johnston Withers

Counsel for respondent: Mr S Walsh, QC

Solicitors for respondent: Finlaysons

Order: appeal dismissed.

DEBELLE J

The appellant was involved in two separate motor vehicle accidents. He instituted two actions claiming damages for injuries alleged to have been suffered in respect of each accident. Liability was admitted by the defendant in each action. By consent the two actions were heard together. The defendants, the respondents in this appeal, agreed also that there was no need to apportion damages between them so that one judgment for the damages as assessed might be given against both. There is one judgment and one appeal from that judgment.

The first accident occurred on 12 December 1985. On that evening the appellant had gone with some friends to the Istrian Club on Grand Junction Road during the evening. At about 1.00 a.m. he left the club and went to his car. He sat in the driver's seat. While his car was still stationary, it was struck forcibly from behind. The force of the impact caused the plaintiff to be thrown about inside the car. As a result of the injuries he sustained, he was off work for some time.

On 9 July 1986 the appellant returned to work on light duties as a courier delivering letters. On 14 November 1986 he was sitting in his vehicle in a stationary position when a heavy truck stopped a few feet behind his vehicle. Both vehicles were on a slight downhill gradient. The respondent in that action failed properly to apply his brakes and his vehicle rolled forward . few feet and bumped the rear Of the appellant's vehicle. Although the respondent's vehicle was a heavy one, its speed and impact was no more than one or two kilometres per hour and the impact was; slight. The trial judge found that the impact was not such an impact that in normal any injury or discomfort circumstances would cause appellant. to a person in the position of the appellant.

There was a dispute as to the extent to which the injuries received by the appellant had incapacitated him. On the night of the first accident the appellant was taken, to the Queen Elizabeth Hospital. He complained of a sore neck which was worse on movement. He had no other injuries. X-rays were taken of his cervical and thoracic spine. He consulted a general practitioner, Dr Rositano, who, in his evidence, said that the appellant complained of back pain. However, Dr Rositano's notes of that consultation have been lost. The most satisfactory evidence of the appellant's condition was given by Mr R. S. Williams, a surgeon, who saw the appellant on 4 March 1986. He diagnosed a severe whiplash injury with some nerve root irritation involving the right arm. The appellant did not complain to Mr Williams of back pain. Through 1986 the appellant continued to complain of neck discomfort and anxiety. After the second accident, he said that his neck was virtually frozen. He complained of paraesthesia radiating down both arms. In April 1987 he complained for the first time of severe back pain and of dizziness.

The trial judge found that the appellant had both `exaggerated and given a false account of his symptoms. He found that the second accident played no part in his complaints. His Honour's conclusions are as follows:

"All told the whole question of damages is obscured by the plaintiff's exaggeration of his symptoms and as I have found the description of false symptoms. He is, however, entitled to damages for his true injuries and symptoms but it becomes a matter of wielding a broad axe in fixing them.

I find that in the first accident the plaintiff suffered a moderately severe whiplash injury to the cervical spine and was disabled from work until certified fit for light duties by Mr Williams from 1 July 1986. From that date such duties were available to him but he chose the course he did and must take the consequences. From that time he should reasonably have been expected to gradually recover over a period of about two years until his condition would be become stable with minimal or no symptoms. As I have already found the second accident played no part in his complaints. So far as economic loss is concerned he was away from work, legitimately from 13 December 1985 until 1 July 1986. During that time he would have earned $9,643.96 gross and $7,355.32 nett after tax. I allow the latter figure. During much of that time he took sick leave and ordinary leave but he is entitled to compensation for that and I allow it.

The future economic loss faced by the plaintiff should have been minimal. However he may have required time off work for physiotherapy and visits to his medical adviser. There may also have been periods during the two years or so before ultimate recovery when there would have been periods of temporary relapse. There would have been expenses and lost wages because of this. Allowance should be made for this but again it is impossible to do otherwise and make an estimate neither generous nor ungenerous. allow $2,500.

All his pain and suffering would have been found to have been suffered before trial if the correct picture had been presented. Nevertheless he had some six months when his neck was undoubtedly painful and at the outset considerably so. Thereafter there is a period of two years, to be generous and taking into account the difficulty of forecasting the final stable state I allow a rather larger overall period. I allow $30,000.

Special damages present a particularly difficult problem. Large amounts have been spent, or mentioned for muscle related treatment and drugs. The amount claimed is $23,762.22 which is agreed by the defendant's counsel as to quantum but not liability. Again a broad axe must be applied and I allow $4,000."

The trial judge therefore made a total award of $43,855.32 being:

TABLE

Past economic loss, actual and potential
$ 9,855.32
Pain and suffering
$30,000.00
Special damages
$ 4,000.00
$43,855.32
Interest was fixed on a lump sum of $6,154.45.

One issue in respect of the injuries suffered by the appellant was the extent to which he had been prevented from playing soccer. In the first action the appellant had pleaded that he was unable to play soccer which he had played prior to the accident. The respondents in both actions had put the extent of the injuries and any resulting incapacity in issue.

The appellant gave evidence that he had not been able to play soccer after the first accident. His club was the Dynamo Club. It had a team in Division 7 in the South Australian Amateur Soccer League. In cross-examination, he was asked whether he played soccer in 1986 and 1987 with the Amateur Soccer League. Counsel for the respondents showed the appellant the Year Books for 1987 and 1988 published by the South Australian Amateur Soccer League. The 1987 Year Book contains information concerning the 1986 season and the 1988 Year Book contains information concerning the 1987 season. The 1987 Year Book shows a person named "S. Biscan" playing for the Dynamo Club in Division 7. That person is listed as receiving votes for the best and fairest player. It also records that person scoring four goals in the season. The 1988 Year Book states that a person named "S. Biscan" had scored one goal in the 1987 season in Division 7. In his evidence, the appellant denied that he had played soccer in 1986 and in 1987. He denied also that he was either the person who scored the goals or the person listed as receiving votes for the best and fairest player. He said that someone else had played under his name in both years. The appellant called no evidence to prove that he had not played soccer for the Dynamo Soccer Club in 1986 and 1987.

The respondent called Mr Gosland, the general secretary of the South Australian Amateur Soccer League in 1986 and 1987. Mr Gosland had held that position for nine years. The League administers amateur soccer within South Australia. Mr Gosland proved that the appellant had been registered as a player in the Amateur Soccer League in 1986 and 1987. Mr Gosland said that, although the League attempts to prevent the practice, there are occasions when a person plays under the name of another. A registered player is issued with a player's registration pass as a means of ensuring that only fully registered players participate in soccer games. The player's registration card bears a photograph of the player as well as his name, address, and registration. The appellant held a player's registration card for 1986 and 1987.

The trial judge dealt with the evidence concerning the question whether the appellant had played soccer in these terms:

"The plaintiff made much of his pre accident sporting activities. Again considerable doubt attends this area of his case. No confirmatory evidence was called and when compared with the documents relating to playing soccer after the accidents the plaintiffs evidence was far from satisfactory. it would have been a simple matter for the plaintiff to call witnesses to explain away the documents which on the face of it showed that he had played soccer during 1986 and 1987. Of course if he did play soccer during those years his complaints to doctors are a charade. This was an important feature of the case and much depended on it from the plaintiffs point of view. He had been faced with documentary evidence that he had played soccer and apart from his denials called no evidence to contradict the prima facie evidence. The defendant did call Mr Gosland the General Secretary of the S.A. Amateur Soccer League. He said that it was possible that the club with which the plaintiff was associated had used the players card signed by the plaintiff before the accident to falsify play other persons using the plaintiffs name and his pre-existing card. In addition to the card there is the matter of the plaintiffs name appearing on the 1987 Soccer Team Board among the "best and fairest" players for "Dinamo S.A." during that season. All things are possible but I do not accept the plaintiffs denial that he did not play soccer during those years."

In concluding that the appellant had exaggerated his symptoms and had misled the doctors who had examined and had treated him, the trial judge said:

"My overall impression of the plaintiff was that he was not being truthful about his symptoms and complaints and in some instances set out to deliberately mislead not only the Court but the specialists who had examined and treated him. This was especially so when he gave evidence concerning his condition following the second accident. I am afraid that this characterisation of the plaintiffs colours not only Mr Tomlian's evidence and his conclusions but also the entire medical picture including the evidence of the psychiatrists who were called. In saying that I am not distracting in any way from the bona fides of any of the witnesses but merely make plain that in my opinion the plaintiff, with some degree of deliberation, set out to magnify and in some cases manufacture symptoms which he thought would advance his cause. In making these findings I have considered very carefully the very thorough and helpful written submissions of both counsel."

It is clear from both of the passages quoted from His Honour's reasons that he had taken a very unfavourable view of the credibility of aspects of the appellant's evidence.

The appellant appealed against the assessment on the ground that it was manifestly inadequate. Although there are a number of grounds of appeal, the appellant presses the appeal only in respect of the finding that the appellant had played soccer in 1986 and in 1987 and as to the credit of the appellant. In the event that the appellant should succeed, it would be necessary for a re-trial.

Where a trial judge has based his conclusions upon a stated assessment of the credibility of a witness, an appellate court is particularly reluctant to interfere with those conclusions: see the speech of Lord Sumner in SS Hontestroom (Owners) v SS Sagaporack (Owners) (1927) AC 37 at 47:

"... not to have seen the witnesses puts appellate judges in a permanent position of disadvantages against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or had been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."

Those observations have been cited with approval on a number of occasions by the High Court: See Patterson v Patterson (1953) 89 CLR 212, 222; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 844. An appellate court will be the more reluctant to interfere with the conclusions of the trial judge where there is, as here, evidence which plainly justifies the view which the trial judge formed as to the credibility of the appellant. The trial judge had the benefit of seeing the appellant give his evidence and forming an impression as to his truthfulness both as to the extent of the injuries he had received and any resulting incapacity and on the question whether he had played soccer.

The inferences drawn by the learned trial judge were fairly open on the documents. The appellant did not deny that he had been registered as a player in 1986 and in 1987. He

disputed only that he had played soccer in those years. The entries in the year books concerning a person named "S. Biscan" under the name of the club in the grade in which it was alleged the appellant played coupled with the admitted fact of registration were, in the absence of any evidence to the contrary, compelling evidence from which the trial judge could infer that the appellant had played soccer in those years. Mr Anderson attempted to suggest that there were features of the registration card and registration pass which could be called into question. However, given the admitted fact that the appellant was registered as a soccer player in those years, the attack upon those documents is irrelevant. One of the purposes of a player's registration pass is apparently to ensure that only registered players participate in soccer matches run by the Amateur Soccer League. A player night be required to produce the pass at a game to establish that he is registered. There was, therefore, a body of objective evidence from which it Could be inferred that the appellant had played soccer in 1986 and in 1987 and which justified the conclusion reached by the trial judge.

True it is that the trial judge, when forming a view of the credibility of the appellant, placed a good deal of weight upon his finding that he did not accept the appellant's assertion that he did not play soccer in 1986 and 1987. But it is plain from the reasons of the trial judge (and, in particular, from the second of the passages quoted above concerning the truthfulness of the appellant) that there were other grounds upon which the trial judge formed his adverse views as to his truthfulness. The trial judge was also unimpressed by the appellant's description of the effects of the second accident. The attack upon the assessment of the trial judge of the credibility of the appellant, therefore, fails.

Mr Anderson also submitted that the respondent called no direct evidence to prove that the appellant (contrary to his denial) had played soccer after the accident. The respondent had no onus to discharge on the question whether the appellant had played soccer. The onus of proving that he did not play soccer in 1986 and in 1987 remained throughout the trial on the appellant. As the trial judge said, it would have been a simple matter for the appellant to have called evidence on that question.

Notwithstanding the evidence that he was registered as a soccer player in 1986 and in 1987 and the entries in the year books under the name `IS. Biscan", the appellant was prepared to rely on his denial that he had played soccer in these years and the evidence that on occasions non-registered persons played under the name of registered players. The appellant always had the burden of proving that he was unable to play soccer in consequence of the injuries he had received in the accident. In the view of the trial judge he did not discharge that burden. On the evidence, that conclusion was plainly open to the learned trial judge.

Mr Anderson also submitted that the soccer documents had been wrongly admitted and, further, that even if they had not been wrongly admitted, the trial judge should not have drawn the inference that the appellant had played soccer in the 1986 and 1987 seasons. The soccer documents had been admitted without objection. The appellant was represented at the trial by experienced counsel. ordinarily speaking, a party to an appeal is bound by the way he has conducted his case in the court below and, on the hearing of an appeal, is precluded from seeking to rely on a point of law not taken in the Court below: Hinton Demolitions Pty Ltd v Young (1973) 6 S.A.S.R. 129, 132; O'Brien v Rosedale Corporation [1969] V.R. 645; O'Brien v Komesaroff (1982) 150 C.L.R. 310, at 318-319. There is nothing in this case which justifies a departure from that rule. Had an objection been taken, counsel for the respondent might have sought to prove the documents in some other way or called other evidence. This court should not, therefore, hold that the documents were wrongly admitted.

For these reasons I would dismiss the appeal. The respondents also cross-appealed but the cross-appeal was dismissed by consent during the hearing.

MATHESON J

I would dismiss the appeal for the reasons given by Debelle J. A cross appeal was dismissed by consent during the course of the hearing.

OLSSON J

I have had the advantage of reading the reasons of Debelle J in this matter in draft.

I agree with his conclusions and that the appeal ought to be dismissed.