The credit of the plaintiff and her witnesses
133The court's approach to the determination of witness credit issues has been the subject of extensive jurisprudence, some of which is summarised in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]. The New South Wales Court of Appeal, in a series of judgments, notably Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently, Azar v Kathirgamalingan [2012] NSWCA 429 at [87] - [90], has carefully explained the role credibility plays in relation to personal injury proceedings.
134The correct approach to the creditworthiness of witnesses has also been the subject of extra-curial writing. I particularly note the contributions of The Honourable Justice McClellan, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655; The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006) http://www.supremecourt.justice.nsw.gov.au/agdbasev7wr/supremecourt/documents/pdf/ipp_speeches.pdf; and Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27)).
135It is well-recognised that the demeanour of a witness in the artificial atmosphere of the witness box is of little assistance. In Hecron v Cousens [1990] NSWCA 93 Kirby P explained:
"Scientific evidence and psychological experimentation has cast serious doubt on the reliability of assessing credibility from the impression made by witnesses in the artificial environment of the courtroom. See, e.g., Australian Law Reform Commission, Evidence (ALRC 26), AGPS, Canberra, 1985, 452ff; L Re, "Oral versus Written Evidence: The Myth of the 'Impressive Witness'" (1983) 57 ALJ 679. Good judges have always been circumspect about their capacity to discern truth-telling from lying by the impression which a witness makes on them in court. Thus, in Société d'Avances Commerciales v Merchants Marine Insurance Co (1924) 20 Ll L Rep 140, 152 (CA) Atkin LJ said: "I think than an ounce of intrinsic merit or demerit in the evidence, that is to say the value of the comparison of evidence with known facts, is worth pounds of demeanour."
136In Lec v Matthews (1926) 25 Ll L Rep 525 at 543, the same distinguished judge declared: "The lynx-eyed Judge who can discern the truth-teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the Bench."
137Findings on credit generally relate to the examination of internal inconsistencies or implausibilities in the evidence of a witness, conflicting testimony between witnesses and/or inconsistent documentation (in particular, contemporary business records or other documents prepared by persons unrelated to the litigation. Care should be taken, however, when considering the contents of busy professionals such as ambulance officers and hospital staff, whose concern is to treat what could be life-threatening injuries rather than to record how the accident occurred: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].
138Where the court finds that a witness has told a lie, either in the proceedings before the court, or in other court proceedings, the correct approach for the tribunal of fact to take is as set out in Malco Engineering Pty Ltd v Ferreira(1994) 10 NSWCCR 117. The court should be slow to make such a finding, and should be comfortably satisfied that such a finding is warranted. The nature of the lie is also important - a witness's lie may be of tangential relevance (for example, lying about one's weight, or medication, or future job aspirations) or it may be central to the issues in the case (such as whether the accident occurred at all, or in the circumstances described).
139The degree of relevance that issues of credit may have to proceedings against the Nominal Defendant, and how to apply any such findings, will depend upon the facts of the case. For example, where a plaintiff has no recollection of events due to the circumstances of the accident and/or injuries received, issues of credit need to be determined with care. This was apparent in both appeals brought in Nominal Defendant v McLennan [2012] NSWCA 148 and McLennan v Nominal Defendant [2014] NSWCA 332.
140The facts in those proceedings were as follows. The plaintiff, who was getting out of his car in a car park at 4.30 am, saw car lights behind him and heard a car motor revving, but thereafter could not recall what happened. The trial judge noted, in relation to inconsistencies in evidence and medical opinions, that he intended to "proceed cautiously on an issue by issue analysis of the matters in dispute, rather than to apply a blanket credit finding against the plaintiff." The Court of Appeal, in setting aside the trial judge's adverse credit findings against the plaintiff, applied the principles set out in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117. At [221] McColl JA explained that this was because of the "uncertainty" of what happened, arising from the plaintiff's inability to remember, as opposed to evidence of lying:
"The uncertainty as to what had happened to the respondent, particularly when seen in the context of the primary judge's adverse credit findings made it essential to assess the rest of his evidence in the manner Handley JA indicated in Malco Engineering v Ferreira. This was not a case, like Malco Engineering v Ferreira, where the primary judge had concluded the respondent had committed perjury in the course of the proceedings"
141McColl JA particularly noted (at [225]) the danger, in such a case, of placing too much weight on earlier, and apparently internally consistent accounts of the accident, which were then in conflict with the plaintiff's later evidence:
"The other evidence the primary judge considered (at [324] ff) supported the respondent's version that there were three "early" consistent accounts that he believed he was struck by a motor vehicle. Each of those documents was prepared by the respondent as part of his claim either for workers compensation benefits or for damages arising from the 5 September 2000 incident. Each was prepared contemporaneously with the respondent's preparation of other documents the primary judge had found contained deliberate lies for the purpose of securing financial advantage. His Honour's reasons did not expose why the accounts in those documents were not tainted by the adverse credit findings. Indeed, his Honour appears to have quarantined those findings from affecting these documents in the manner Handley JA criticised in Malco Engineering v Ferreira. It is not possible to discern from his Honour's reasons the careful assessment called for in the circumstances of a case which depended substantially for its success on acceptance of the respondent's version of events."
142Thirdly, McColl JA warned against too ready an assumption that lies told by a witness meant that the account of the accident was itself a lie:
"Further, in my view, as in Brown v Harding, the primary judge's conclusion that the respondent had, in substance, lied on many occasions over a period which spanned 12 or so years, including the period of the incident, to secure financial advantage, was in conflict with his conclusion (at [324]) that the respondent's "early" consistent accounts of the incident were "credible and supportive of the inference that he was struck by a vehicle". The respondent's propensity to lie about such matters had to be taken into account in determining why the three documents the primary judge relied upon should be accepted. Merely to say the documents were "early" and "consistent" begged the question as to whether they were any more credible than the documents in respect of which the respondent had been found to have engaged in deceptive conduct. In my view the appellant has established that the primary judge failed to use or palpably misused his advantage as a trial judge in finding in the respondent's favour."
143These proceedings were remitted to this court for rehearing and the plaintiff was again unsuccessful: McLennan v Nominal Defendant [2014] NSWCA 332. While the appeal was dismissed because of failure to carry out due search and inquiry (per Basten JA at [20], noting the plaintiff's account of the accident as "on one view...implausible") and the judge did not determine the issue on credit findings (at [60]), the court was not critical of the second trial judge's acceptance of the same inconsistencies in the plaintiff's account of the accident to medical practitioners (at [63] - [64]).
144The issue in these proceedings is, however, not the general issue of credit, but the question of how to deal with two different accounts both of the reporting of the accident to the police and of the circumstances of the accident itself. Counsel for the defendant has drawn my attention to McColl JA's reference in McLennan v Nominal Defendant to Malco Engineering v Ferreira, and submits that the plaintiff has lied in her testimony on issues central to the factual matrix of these proceedings.
145Counsel for the defendant draws to my attention the fact that all police and hospital records contemporaneous with the accident fail to refer to the near-collision with the white Toyota, and asks me to conclude that the plaintiff has lied in her account of the circumstances of the accident, which in fact occurred in the circumstances described by Mr Delalande, namely in circumstances where the defendant is not liable, not only due to lack of negligence but because the plaintiff was not riding on a public road.
146Counsel for the plaintiff submitted that I had "the direct sworn evidence of a 22 year old member of the community" (T 254) whose sworn testimony should not be underestimated. The hospital and police records tendered did not amount to evidence from other witnesses, but to information (or lack of information) provided by the plaintiff, and as such had less weight than the testimony of other witnesses. The court would be unaware of what questions were asked to elicit that information, or even if the information in question was obtained by the plaintiff (T 255 - 6). This information "could have come from a worker at the hospital that had been given to her by someone" (T 257).
147Mr Quickenden pointed out that the Court of Appeal has repeatedly urged judges to regard hospital and police reports with the utmost caution, for the reasons explained by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]:
"[2] First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history.
[3] The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.
[4] Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant's oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts."
148The following may be noted:
(a)The notes of both hospitals, which have been created independently of each other, are consistent over almost a two-week period;
(b)The absence of notation of complaint to the police the day following the accident, a document created independently to the hospital records, is consistent with there having been no reported unidentified vehicle;
(c)The plaintiff's ability to give a coherent account of events appears to be supported by references to her mental and physical state; and
(d)The accuracy of the other information in these documents is not challenged.
149Additionally, there is the evidence of Mr Delalande. Mr Quickenden put it to me that even if the plaintiff was part of what Mr Quickenden called "that ruse", that does not mean that she was not telling the truth about how the accident occurred. There was no evidence to contradict the plaintiff as to where and in what circumstances the accident occurred, and her mother's evidence (and, to a limited degree, that of Mr Delalande) supported that evidence, which was sufficient corroboration (T 259 - 60).
150Ms Allan's submissions were that I would not accept the plaintiff, her mother or Mr Delalande as witnesses of credit, because of the acknowledged inconsistencies in circumstances where the alternate explanation of a "ruse" to avoid prosecution was not adopted by the plaintiff in any event. Additionally, Ms Allan pointed to a series of Court of Appeal decisions explaining the manner in which the court should approach evidence in claims against the Nominal Defendant, where evidence was by definition lacking, in that the vehicle which caused the accident, and its driver, were almost always unknown.