Findings of the primary judge - credit
58The primary judge said that he gave reasons in much shorter form than he would otherwise have done, having been told that Mr Stevens had entered palliative care. Nevertheless, they are lengthy, and engage with the competing testimonial evidence in light of the contemporaneous documents; this is not a case where there was no analysis of the competing evidence such that it may be inferred that the process of fact finding miscarried: cf Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66].
59His Honour rejected an attack on the credit of the plaintiff's daughter, Ms Couper. She said that her father drank no more than eight to ten beers per week, and that the extra consumption was by her, her friends and a neighbour. His Honour said that "I considered that Ms Couper gave her evidence sincerely, truthfully and in a dignified and impressive manner", and found at [33]-[37]:
"I considered that as she was living in her father's home during the relevant time frame, she would have been in a reasonable position to observe and relate such of his patterns of drinking that she would have been able to see. I did not consider her explanations as to the pre-diagnosis alcohol purchasing patterns evident from her father's financial records and the manner in which alcohol was consumed in the house, by her father, a named neighbour, herself and her grandmother, to be implausible, or to have been given in order to deflect from a description suggestive of a much greater level of consumption by her father.
I have allowed for the possibility that as her father, Mr Stevens may not have wanted to place Ms Couper in a position to see any at times greater level of alcohol consumption on his part than that which she had described. As this was not the subject of specific evidence, it is not a matter which was determinative of my conclusions on the issues raised.
Significantly, both from Mr Stevens' evidence and from the evidence of Ms Couper, I considered it objectively compelling that Mr Stevens had managed to maintain responsible employment as a dogman over a considerable period of time with significant accrued sick leave, and that he had been subject to random blood alcohol testing because of the dangerous nature of his work as a dogman, Ms Couper's evidence was consistent with that fact. If Mr Stevens was in fact regularly consuming alcohol to the level suggested by the defendants, it would have been unlikely that he could have maintained his employment as a dogman without significant absences from his work over such a long period.
In arriving at these views, I have not overlooked the content of Mr Stevens' medical records that suggested an, at times, greater level of consumption [than 8-10 beers per week], a matter to which I shall return ...
In particular, those records have to be considered with the cautions identified by Basten JA in Mason v Demasi [2009] NSWCA 227, at [2] because they state conclusions rather than verbatim accounts. Accordingly, on the subject of the credit and reliability of the evidence of Ms Couper, on the subject of her father's pre-diagnosis health and level of alcohol consumption, for the reasons I have outlined above, I reject the suggestion that she gave false evidence."
60That rejection was striking. There was a very significant divergence between the evidence of father and daughter. The father accepted that he had been a heavy drinker, but said he had cut down his weekly intake to eight to ten beers in June or July 2010. The daughter maintained that throughout 2010 he would drink no more than eight to ten beers a week. The reasons of the primary judge do not address this divergence.
61All of the evidence was that the only liquor purchased by Mr Stevens was beer. His daughter said that beer would normally be bought as a "slab", although he also said that that "it doesn't have to be slabs all the time". Yet the man who said that he mostly paid in cash made electronic purchases consistent with two slabs on Monday 16 August, two slabs on Thursday 19 August, another slab on Monday 23 August, another slab on Tuesday 24 August and another slab on Friday 27 August. (The absence in the bank statements of eftpos purchases on weekends suggests that they were recorded as taking place on the immediately following Monday.)
62It is not merely the sheer quantity of alcohol demonstrably purchased, but the manner and timing of the purchases. The purchasing pattern is consistent only with steady, substantial drinking, throughout the week, in the order of ten beers a day. What is the alternative? The steady pattern of purchasing throughout each week is inconsistent with occasional social gatherings where most of the beer was drunk by others, and, aside from the statement given by Mr Stevens in cross-examination reproduced above, there was no evidence of that in any event. Everything that Mr Stevens' daughter said about her and her friends and her neighbour drinking some of the beer could be true, and yet it would still be glaringly improbable that her father drank only eight to ten beers a week. Is it suggested that of the seven "slabs" bought by eftpos in the last fortnight of August, that her neighbour visited for four nights a week and drank five or more beers while her father nursed one? Her evidence did not come close to supporting such a scenario. Mr Stevens' daughter also said that she had used her father's card to buy beer for herself and her friends. But once again, although his Honour considered that Ms Couper's explanation of the alcohol purchased was not implausible, his reasons did not grapple with the fact that her explanation could not plausibly account for the consumption of the overwhelming majority of the "slabs" of beer bought almost every other day.
63Moreover, there is the wealth of medical records. The primary judge discounted them, because "they state conclusions rather than verbatim accounts". There is, as Basten JA observed in Mason v Demasi, very often difficulty where a patient's history is summarised in the notes prepared by a medical practitioner. But that is the opposite of this case in relation to most of the evidence. The statement of "alcoholism", it may be accepted, states a conclusion, but statements such as "8-10 heavy stubbies every night" (27 June 2010) are not a conclusion; they are on their face verbatim (or near verbatim) records of what Mr Stevens said, in his own words. When Mr Stevens made those statements to his doctors, he had no reason to tell anything other than the truth. The reasons of the primary judge do not adequately explain why they are to be wholly discounted.
64The primary judge placed reliance on the consideration that Mr Stevens was able to continue to work, notwithstanding the random breath testing that took place on the job. His Honour found this "objectively compelling". But Mr Stevens told his doctor that he drank after work in the evening ("Drinks eight stubbies (heavy) every night"). There was no evidence that a man who drank each evening at the levels described by Mr Stevens to his doctors would not by the next morning be able to pass a breath test. The consideration is not "objectively compelling" in the slightest; to the contrary, it may reasonably be inferred from all of the evidence that Mr Stevens was able to fulfil his work duties despite his alcohol consumption. In truth, what is "objectively compelling" is the consistent contemporaneous evidence of Mr Stevens' statements to his doctors and purchases of alcohol by eftpos on his CBA account.
65Finally, there is an internal inconsistency in the reasoning process at first instance. The primary judge found at [94] that CommInsure was entitled to avoid the policy (emphasis added):
"because Mr Stevens was consuming more than 3 standard drinks per day as an average over the disclosure period; his medical records showed that he had a relevant history of raised liver function test results; he had a past history of Hepatitis C, and his medical records disclosed an episode of having coughed up blood."
66More than three standard drinks per day is very considerably more than eight to ten drinks per week. It is more than double. The dispositive portion of the reasons whereby the primary judge concluded that CommInsure was entitled to avoid its policy involved a rejection of the "eight to ten drinks per week" evidence of Mr Stevens and his daughter. The primary judge does not reconcile his acceptance of their evidence as to eight to ten drinks per week with his finding that Mr Stevens consumed more than three standard drinks per day.
67The task and duty of this Court is to conduct a "real review" of the evidence, to give respect and weight to the advantages of the primary judge, but not to shrink from giving effect to its own conclusion. This is one of that rare class of case, where even if the facts fall short of being "incontrovertible" it must be concluded that the decision at trial is at least "glaringly improbable" or "contrary to compelling inferences", such that this Court must not shrink from giving effect to its own conclusion, after making all due allowances for the advantages available to the trial judge: Fox v Percy [2003] HCA 22; 214 CLR 118 at [29]. Those terms are convenient descriptive labels or guidelines, but in truth no definitive test is possible to specify those (rare) occasions when appellate review of a credit-based finding of fact is warranted: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15]. All that can be done is to look at all of the evidence, testimonial and documentary, while at the same time being conscious of the advantages of the primary judge, including the necessarily incomplete character of his or her reasons: Biogen Inc v Medeva plc [1997] RPC 1 at 45.
68Something in the order of one hundred and sixty eight cans or bottles of beer were bought by eftpos on Mr Stevens' CBA account in the last fortnight in August 2010. Mr Stevens did not drink light beer. It follows that there were well in excess of 220 standard drinks. The purchasing pattern suggests that all that alcohol was drunk in that period. Mr Stevens probably did not drink every single one of those drinks himself in that two week period, but despite his own evidence and that of his daughter, it is exceedingly improbable (to say the least) that he drank only eight to ten standard drinks in each of those two weeks. Much more persuasive evidence would be required to explain those purchases and to falsify the numerous statements by Mr Stevens to the doctors treating him before the evidence of Mr Stevens and his daughter to the contrary could be accepted. Other periods in the second half of 2010 disclosed similar patterns of purchases. The fact that the primary judge saw, and was impressed by, Mr Stevens' daughter does not immunise his finding from appellate review, in circumstances where, as here, there is no adequate reconciliation of all of the evidence bearing on the point, and where the primary judge himself has made inconsistent findings on the point.
69Lest there be scope for confusion, it should be made clear that that rejection does not amount to a conclusion that either or both were knowingly giving false evidence. When Mr Stevens gave instructions and swore his affidavit and was cross-examined, he was in the terminal stages of pancreatic cancer, and had indeed given up alcohol, and was being cared for by his daughter, in circumstances undoubtedly distressing to both of them.