Daw v Toyworld

Daw v Toyworld - [2001] NSWCA 25 - NSWCA 2001 case summary — Zoe

[25]

Since Dr Pillai referred the plaintiff to Dr Giblin before 11 April 1990, it is probable that the plaintiff made the statements to Dr Pillai which she in turn related to the orthopaedic surgeons before 11 April 1990. 11 The trial judge noted that the plaintiff had failed to call evidence from the St Joseph's Hospital, Lakemba, as to what he said or did on arrival there on 27 March 1990, and did not explain this failure. He inferred that any such evidence would not have strengthened the plaintiff's case (Red 22N-W). 12 The trial judge also said that no evidence had been introduced from "Doctor Kanapathi, who must have been an early - if not the earliest - general practitioner consulted by the plaintiff." He drew a similar inference about that evidence. There was some confusion in the evidence in that on occasion Dr Kanapathi Pillai was referred to as "Dr Kanapathi". Thus Dr Giblin's report of 27 May 1992 referred to Dr T Kanapathi Pillai as "Doctor Kanapathi". Similarly, Dr Matheson's reports record the plaintiff as seeing "his local GP whose name he said was Dr Katypathi, although I am not sure if this is the correct spelling" (Blue 119N-P; see also 122N). The fact is that the trial judge was correct in saying that no testimonial evidence had been introduced from "Dr Kanapathi [Pillai]". His conclusion that if it had been, it would not have strengthened the plaintiff's case is supported by the fact that, as has been seen, Dr Pillai's reports do not support the plaintiff's evidence and indeed tend against it. 13 A video film made of the plaintiff's activities on 19 October 1996 revealed him carrying out vigorous movements which were inconsistent with his complaints to doctors and to the court about pain and restrictions on his capacity to perform physical activities. The filmed movements included digging fence post holes with a crowbar, carrying fence posts, carrying boards, erecting the posts, attaching the boards and stamping the ground at the base of the posts; in all these movements he freely bent, stooped, walked, ducked, crouched, knelt and twisted (Red 26J-27G). The trial judge also said (Red 28C-S): "His explanation for his ability to perform as demonstrated on the video film was that the building of the corral was a matter of necessity because the horses had broken down other fencing and were at risk of straying out onto the highway. He explained that he had been able to work as displayed on the film because he had taken three analgesic tablets before embarking upon that activity. I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience. In fact, it is not entirely certain that he was prepared to admit that he had very much present recollection of the day at all until he had been shown the film. I do not accept his explanation, especially bearing in mind the way in which he answered questions whilst the cross-examiner was, literally building the trap, preparatory to displaying the video film. During those answers, the plaintiff demonstrated an awareness that he was being set up to be attacked some way and the more the trap was being prepared the more guarded he became. He demonstrated an acute awareness that something was being prepared to his disadvantage in the questions." 14 On 20 October 1996 the plaintiff was filmed mowing grass on a gradient of 15 degrees, picking up objects and removing them from the path of the mower, moving the mower around bushes and trees, and controlling the mower one-handed (Red 27H-S). 15 The trial judge said (Red 28U-X): "The plaintiff's wife has given evidence about his health and fitness both before and after 27 March 1990. It accords with the evidence-in-chief of the plaintiff. The evidence-in-chief of the plaintiff is inconsistent with a contemporaneous record of the physiotherapist about his back complaints prior to 27 March 1990."

[27]

The reference to the plaintiff's "reported history to doctors" is a reference to the following evidence. He told Dr Ellis that before 27 March 1990 "he was a healthy active man" (Blue 46U) "with no previous history of back trouble" (Blue 49Q). He told Dr Eggins he had no medical problems before the accident (Blue 94S). He told Dr Matheson he had no prior medical history save for a tonsillectomy (Blue 119T and 122S). The reference to the explanation to one of the doctors appears to be a reference to the following evidence (Black 53P-T): "Q. I suggest to you that you again saw Dr Matheson at Edgecliff on 15 November 1996. He again asked you on that occasion about your medical history and you told him on that occasion that apart from a tonsillectomy you had had no previous illnesses? A. Yeah I think I can recall it because he may have asked me if I had any operations and I said the only was tonsils out and apart from that I've never had another operation, no. Q. I suggest that what in fact you told him was that you had had no previous illnesses? A. Well I can't say on that, I don't know." 17 The trial judge said he did not accept the evidence of the plaintiff and his wife: "that he is as much of an invalid since 27 March 1990 as they each claim. It would be far too much of a coincidence to accept that the only 2 days on which the investigator was able to expose clear film of the plaintiff's activities were each as rare an occurrence as the plaintiff and his wife would have the Court believe, especially in view of his conceded level of involvement in voluntary charitable activities in the Woolgoolga-Coffs Harbour area. It is probably the case that he does have a continuing level of symptoms affecting him, but his handling of the truth on that aspect of the case has seriously damaged his credibility generally. He has not demonstrated to my satisfaction that any such level of continuing symptomatology is, in any way, related, by way of causation or of exacerbation, with the episode with which this case is concerned" (Red 29N-Y). 18 The trial judge made certain general comments on the plaintiff's credibility. He said (Red 25S-Y): "The plaintiff was thoroughly and efficiently cross-examined for a significant period of time. This cross-examination was effective in demonstrating that the plaintiff is clever in his use of language despite having left school at 13 years of age, and careful in how he answers questions. In fact, Doctor Dalton (Exhibit 6A-B) paid tribute to the surprisingly high verbal skills which he demonstrated, despite his modest academic attainments."

[28]

He said (Red 30D-G): "In short, it must be said that the plaintiff emerged from the witness box as a witness whose credit was very much in issue, despite the submission to the contrary by his learned counsel in final address. He failed the credibility test of cross-examination." 19 The trial judge concluded as follows (Red 30J-31G): "Having found the plaintiff to be an unreliable factual and medical historian, I then turn to consider whether or not the plaintiff sustained the injury in the way in which he claims, in his pleading, and in Court, to have done so. His case on liability stands or falls on his evidence. I find that the plaintiff has failed to establish, on the balance of probabilities, that the accident occurred in the way in which he claims that it did. It may be the case that his version of events to the ambulance officer, proved by the defendant with Exhibit 10, and whatever he might have said at the Hospital, suggested in cross-examination but not proved, may have been accompanied by a high level of pain which he was then suffering. But, I am satisfied that, when he came to fill out the Compensation Claim Form (Exhibit 11), what he stated in it was what had occurred on the day in question. Submissions to the effect that he was not required by the form to supply any details relevant to common law liability are, in my view, a complete red herring. In Exhibit 11 he said that he ' … lifted to waist high had pain in the back, dropped the carton and fell …'. I am satisfied that, whatever damage was occasioned to his back on 27 March 1990, was sustained when he was lifting a carton as detailed to the ambulance officer and recorded on Exhibit 10 and, as reiterated to the workers compensation insurer of the defendant on the Compensation Claim Form (Exhibit 11)." 20 Putting aside occasional obscurities and minor slips in this reasoning, and without prejudice to the criticisms advanced by the plaintiff which will be considered in detail below, the conclusions of the trial judge prima facie appear sound. His conclusions on credibility, though courteously expressed, were seriously adverse to the plaintiff's honesty as well as his reliability. They were in part based on the advantage of having observed the plaintiff as he testified. Indeed, those conclusions can be supported by much evidence to which the trial judge did not refer. For example, there is another near-contemporary account of the accident which substantially differs from that which the plaintiff gave at the trial, namely the account given to Dr Bodel on 15 May 1990 six weeks after the accident, which corresponds with that given in Exhibit 10 and Exhibit 11 (Blue 82N). This is to be compared with the account given to Dr Bodel after the plaintiff had instructed solicitors, who referred him to Dr Bodel for examination on 24 November 1994 (Blue 84P-S). This account gave a third version of the incident. Though this corresponds more with the evidence he gave than with Exhibit 10 and Exhibit 11, it does differ from it. As conveyed to Dr Grech on 8 February 1991, it was (Blue 25M-N): "He stated that while unloading the pallets off the truck the back of the pallet was missing and when it tilted towards him he threw away the carton he was carrying and twisted backwards suddenly to get out of the way of the tilting pallet and as he turned around he developed severe back pain across the base of the lumbosacral spine."

[29]

Grounds 1-9 and 12: General 21 Before going to the detail of these grounds, it is necessary to understand their background. They relate to a document which was admitted in evidence by consent and was marked Exhibit 13. It came to be tendered in the following circumstances. Exhibit 4C was a report of Dr Eggins dated 29 January 1996. It was tendered by the defendant and admitted without objection by the plaintiff (Black 74J). Dr Eggins was an assistant in a partnership which described itself as "consulting in occupational medicine and rehabilitation". The plaintiff saw Dr Eggins on 15 May 1991 and on 10 February 1992 at the request of an insurer. Dr Eggins supplied reports on each of those days (Blue 94-106) setting out symptoms which the plaintiff said he had experienced from 27 March 1990, but not before. On 16 January 1996, the defendant's then solicitors sent Dr Eggins a letter. The opening part of his reply on 29 January 1996 was as follows (Blue 107N-Z): "Thank you for your letter of 16/1/96 and the attached photocopies of Mr Daw's clinical records when in the care of Dr Thurai. These relate to consultations between 27/6/84 and 2/11/90. As you point out, Mr Daw is documented as consulting Dr Thurai on 8/1/86, who records that he was then complaining of pain in the left buttock and down the lateral side of the thigh and calf. This entry also refers to muscle spasms and records that Mr Daw's then range of forward flexion from the erect position was to 50% of normal, which presumably means that he was able to get his fingertips to his knees but no further. This entry also contains a warning to Dr Thurai that he was not to reveal this information either to his, Mr Daw's place of work or to an insurance company. In this entry, Mr Daw not only says that the symptoms had been present for more than two years, but that his treating physiotherapist had told him that he has two disc lesions. He describes intermittent pain since 1984. You ask me to comment on this entry. There is no doubt that Mr Daw concealed this history when I examined him on 15/5/91. He then asserted that his current symptoms began on 27/3/90 immediately after he wrenched his back when he jumped to avoid a collapsing pallet stacked high with cartons. In fact, the symptoms described by Mr Daw on 15/5/91 and reiterated on 10/2/92 match those described in Dr Thurai's record of the consultation on 8/1/86. In other words, the symptoms he proffers as arising from the work-related accident on 27/3/90 are now known to have been present since 1984."

[32]

Certain further details were set out. The page concluded with the following words in the last three lines: "N.B. DO NOT DIVULGE INFORMATION TO WORK OR INSURANCE CO. WITHOUT PATIENT'S SPECIFIC PERMISSION." 23 The trial judge then made the following remarks about Exhibit 13 (Red 24L-Z): "Doing as best I can in the matter, I am satisfied on the balance of probabilities that Exhibit 13 is one page of the patient history of Doctor Thurai, that the patient 'Terence Daw' is the same as the plaintiff in the present case, even though the first name is misspelt, and that the associated documentation which otherwise might be able to establish the provenance of Exhibit 13 has innocently gone astray. Referring back to the extract from Exhibit 4C, and in particular to Doctor Eggins' comment: '… also contains a warning to Doctor Thorai that he was not to reveal this information … ", it is as reasonable to conclude that the ' warning ' was wholly the product of Doctor Thorai's volition as it was a record [of] the plaintiff's instructions to Doctor Thorai. I have not in any way relied upon the three line notation in capital printing at the foot of Exhibit 13 in forming any views about the credibility of the plaintiff." 24 The transcript of the trial does not contain transcriptions of most of the addresses of counsel. However, it does contain certain transcriptions of particular points raised by the trial judge and the debates these interventions engendered. At Black 80H-83T the following is recorded: "HIS HONOUR: I must say from my point of view, although it's true the rule in Browne v Dunn is a rule of fairness and requires that the appropriate questions be put before evidence to the contrary be called, nevertheless at the time the report of 29 January - that's exhibit 4C from Dr Eggins was tendered, there was no objection raised that it was inadmissible or that fairness required it not to be tendered. LIDDEN: I take the view your Honour that it goes towards weight rather than admissibility per se. HIS HONOUR: You'll have to live with that I think. I just indicate this to you, it seems to me that not to be able to be brushed aside in the way you're inviting me to do it. COUNSEL FURTHER ADDRESSED HIS HONOUR: You'd appreciate Mr Lidden that there's two ways of being a judge. One is the old fashioned way, sitting up like a sphinx and watching everything that goes past and saying nothing and then bringing in a judgment. The other way is to trail the fact finding coat tails to see whether or not the mind is on the right course or the wrong course. And what I've been doing is providing you with the opportunity of knowing what's going on in my mind and what has been going on in my mind as the evidence is being listened to and digested. That's why I said that I'll leave it entirely up to you and how you deal with the situation. LIDDEN: I realise that. HIS HONOUR: Previously when I mentioned Dr [Beer] you sought leave to re-open and I gave you leave to re-open. You're charged with the conduct of the plaintiff's case and I'll leave it to you to conduct it the way you see fit. LIDDEN: Yes your Honour. HIS HONOUR: It's just on 11.30 now, you might like to think about what I've said at this stage of proceedings and we'll come back at quarter to 12. SHORT ADJOURNMENT HIS HONOUR: Yes Mr Lidden? LIDDEN: Your Honour can I pass for the moment from the report of Dr Eggins and the material that he had and come back to it later, things are happening behind the scenes which may enable some sort of agreed course. HIS HONOUR: Yes. LIDDEN: To other medical material in the case. COUNSEL FURTHER ADDRESSED HIS HONOUR: I'll tell you why it's significant in my view. I've got to look at this from all angles all the way round the full circle, without in any way detracting from the submissions that you are urging upon me, namely 'Well why didn't Mr Bellew cross-examine him with this proposition and the other proposition and so forth. I would have imagined that before the hearing started you would [have] agreed upon what doctors, if any, were required for cross-examination. And that therefore the defendant would have known that Dr Eggins was not required for cross-examination and that therefore his report would go in and that therefore the Court would know about Dr Thurai and there is ample authority for the proposition that although the rule in Browne v Dunn is a rule of fairness and that contrary propositions have to be put in an eyeball to eyeball fashion. I'm thinking in terms of what Justice Mahoney said in Gazarle v GIO. Nevertheless Mr Justice Samuels, some years earlier had said - and I think it's in Ellis v Wallsend Hospital that it is not necessary to go through chapter and verse and put the whole litany of matters, as long as it's made clear that the general thrust of the plaintiff's case on a particular matter is being challenged, that is adequate. If I were to adopt your proposition and say well the plaintiff were not cross-examined on it so therefore I ignore what Dr Eggins put in his report, then enshrined in a judgment of the District Court, and albeit only of the District Court, there is a clear implication that Dr Eggins cooks up false histories and puts them into his medico legal reports so he can get more work from the insurance companies. So being fair all round, that's why I said to you 'look if' - and I didn't actually use these words - but upon the assumption that you had agreed on the fact that Dr Eggins was not required for cross-examination, Mr Bellew was not required to put this as an eyeball confrontation to your client because he knew it was going in any way and the general thrust of his evidence, length of his cross-examination had been made clear. So that's why I said to you it's a decision for you to make. You said you would leave it as a matter of weight and I said 'you'll have to live with that decision'. There are alternative avenues open to you. You are exploring one of them at the moment. LIDDEN: Yes. HIS HONOUR: What I'll do is I'll - unless Mr Bellew is going to ask me to do something else? BELLEW: No certainly not your Honour, I thought you were addressing both of us which is what I -- HIS HONOUR: What I'll do, is I'll adjourn now. I'll reverse the usual way of deciding these things, namely I'll start looking at the question of damages until such time as you send a message to me, I'll come back on the bench and you can then announce whether or not you have reached some accommodation about Dr Eggins' report or whether or not you're going to take some other course, and if so, what Mr Lidden. The fact that I'm going to start working on the quantum aspect of the matter, should not be taken as an indication that come what may I have decided the plaintiff is going to win. At this stage of proceedings, I have not decided one way or the other. BELLEW: Your Honour I should hand up the schedule to which I referred earlier this morning, with the figures that I gave to your Honour I neglected to do it at the conclusion of my address. HIS HONOUR: Thank you. This is what I was hoping you passed it to me to save me writing it out, but anyway I've got it now, thank you. SHORT ADJOURNMENT HIS HONOUR: What's the matter to be announced gentlemen? LIDDEN: Your Honour we think the best way to approach it is this way, that my friend tenders a document - and I won't object to it - I'll consent to him re-opening his case, as being the document which was provided to Dr Eggins. HIS HONOUR: This is the report from Dr Thurai? LIDDEN: No your Honour, your Honour will see what it is when it goes up. HIS HONOUR: I've left the exhibits list up in chambers. Exhibit? BELLEW: 13 your Honour. LIDDEN: And that your Honour takes these matters of announcement into account. I think I'm right in setting them out but that page is thought to come from some notes of a Dr Thurai, but nothing else is available and that the defendant has no access to any other material such as middle name or date of birth or address or matters of that nature. HIS HONOUR: No access to any other material about Dr Thurai or about the patient? LIDDEN: So as to identify the patient as being the plaintiff, such as date of birth, middle name, address and matters of that nature. HIS HONOUR: Yes? BELLEW: Your Honour the only thing that I would add to that is that I am not in a position to establish the source of that document. I suspect that it has been produced long ago in other proceedings not in this Court but beyond that and notwithstanding a number of attempts, I am unable to be any more precise. HIS HONOUR: Where does that leave me? Is it conceded that there is or ever has been such a person as Dr Thurai? LIDDEN: Your Honour knows the plaintiff's evidence that he does not -- HIS HONOUR: I've heard what the plaintiff said. LIDDEN: Yes. Well in light of my friend's concession I think probably that we don't even know that it comes from Dr Thurai. HIS HONOUR: Well is there a fair summary of the consensus? First, that there's no objection to the tender of this document which will now become Exhibit 13 in the case? Secondly, that Exhibit 13 might be the notes of Dr Thurai, is that the -- BELLEW: Yes your Honour that's fair. HIS HONOUR: Thirdly, nothing else is available. Fourthly, the defendant has no access to any other identification of the patient referred to in Exhibit 13, such as date of birth or middle name? LIDDEN: Correct. HIS HONOUR: And fifthly, the defendant cannot prove the provenance of Exhibit 13? BELLEW: Correct your Honour."

[33]

The Plaintiff's Written Submissions on Grounds 1-9 and 12 25 The submissions of the plaintiff in relation to grounds 1-9 and 12 are as follows (paras 4.1-4.6 and 5.1-5.2): "4.1 Dr Thurai's Notes. The only evidence identifying this document is that contained in the report of Dr Eggins of 29th January 1996 (Blue 107N). The inference is that the Solicitors for the Defendant sent a letter enclosing a number of documents of which the document at Blue 159 formed part. However, no evidence was led to the effect at the Trial. There was no evidence before the Trial Judge that, in fact, a Dr Thurai existed, or that Dr Thurai had actually treated the plaintiff. 4.2 The document at Blue 159 refers to a 'Terence' Daw, whereas the Plaintiff's correct name is 'T err ence Mervyn Daw. It contains no identifying information such as an address, or date of birth. 4.3 No questions were addressed to the Plaintiff in relation to the document at Blue 159 in Cross Examination. Nor did Dr Eggins raise the contents of that, or any associated document, with the Plaintiff on the occasions that Dr Eggins examined the Plaintiff. Whilst the Plaintiff was Cross Examined in relation to the 1987 lifting incident [In Chief at Black 11W, in Cross Examination at Black 35W-36Z], his denial that there had been more than one prior injury to his back [Black 37C] was not challenged. The Plaintiff was not Cross-Examined in relation to the events on 8th January, 1996, and the 'history' contained in the document at Blue 159 was never put to him in Cross-Examination. 4.4 When one adds the concessions by Counsel for the Defendant that he was not in a position to establish the source of the document, and that he 'suspected' that it had been produced long ago in other proceedings not in this Court (which were not identified), and the absence of evidence proving the provenance of Exhibit 13 [Black 83E-S], and the fact that Counsel for the Defendant did not rely upon the document at Blue 159 in his closing address, it was simply not open to the Trial Judge to find [Red 24K-Q] that the document was a Page of the Patient History of Dr Thurai, relating to the Plaintiff, or even that associated documentation which might otherwise have been able to establish its provenance had innocently gone astray, as no evidence had been led in relation to the associated 'documentation' if any. 4.5 It was not open to the Trial Judge to find that the Plaintiff's Evidence in Chief in relation to the incident in 1987, was inconsistent with the record of Mr Atkinson, and in any event when one takes into account the evidence given by the Plaintiff at Black 36, there was no relevant inconsistency between the evidence of the Plaintiff and that of Mr Atkinson. 4.6 Because the document at Blue 159 could not relevantly be relied upon as evidence against the Plaintiff, there was no material which entitled the Trial Judge [to] find that the Plaintiff's history, as given to doctors for Medico Legal purposes, was wrong in so far as it referred to his state of health of 27th March, 1990, and that the Plaintiff must have known that what he told them was wrong. There was no evidence which would entitle the Trial Judge to find that the Plaintiff 'must have known what he told the doctors was wrong' in relation to his pre-accident health, and the Cross-Examination of the Plaintiff at Black 36 would not entitle the Trial Judge to make the findings set out at Red 28 V-X. 5.1 The Defendant's Medical Reports, so far as they are based upon the unproved Clinical Notes on which the Plaintiff had not been Cross-Examined (ie the 'Notes' of Dr Thurai) could carry no weight. 5.2 The traditional view is that the history contained in a Medical Report must be proved, and if it is not, the basis for the opinion of the Medical Expert is destroyed. No evidence was adduced to establish that the document at Blue 159 formed a Business Record within the meaning of the Evidence Act. Accordingly, to the extent that the opinions of Dr Eggins were based upon his acceptance of the document at Blue 159, they were impeached and the Trial Judge should have so found. Dr Eggins relied in that report when reporting on 12th August, 1996. The same objection applies to the report of Dr Seamus Dalton. See also Dr James Bodell, although he considered the record dated 18th January, 1986 referred to a relatively minor back problem only."

[34]

The Plaintiff's Oral Submissions on Grounds 1-9 and 12 26 The plaintiff's oral argument proceeded upon the following lines. He submitted that the trial judge apparently became concerned that evidence had been withheld from the court. This fact became apparent in final addresses (Black 79P-Y), when, some time before the debate quoted from Black 80H-83T above, the trial judge apparently queried why Dr J Beer had not been called. Dr Beer was an orthopaedic surgeon, and Dr Pillai had written a letter - undated, but probably before 11 April 1990, referring the plaintiff to him (Blue 7-8). The plaintiff explained the non-calling of Dr Beer by tendering a letter from Dr Beer stating that he had no knowledge of the plaintiff (Blue 68). 27 The plaintiff then submitted to this Court that the next manifestation of the trial judge's suspicion about the withholding of evidence related to Dr Thurai. 28 The plaintiff submitted that Dr Thurai's notes (Exhibit 13) had numerous weaknesses. The document was hearsay, but no hearsay exception in the Evidence Act permitting its reception applied. The defendant's counsel conceded that the source and provenance of the document could not be established. The defendant's counsel could do no more than state, without establishing, that the document had been produced in other proceedings. The defendant's counsel had not tried to tender the document, or put it to the plaintiff in cross-examination, or address on it. There was no evidence that the plaintiff had seen Dr Thurai. There was no evidence that Dr Thurai had ever existed. The document came in on a very limited basis, namely that the parties had "agreed that the judge could not do any more with that evidence than say it might be a report of Dr Thurai" (transcript page 15 lines 38-40). In short, the plaintiff submitted that the document could not be relied on, and yet it was the only material which could validly have supported the trial judge's conclusions on the plaintiff's credibility. 29 One key difficulty lying in the plaintiff's objection on appeal to any reliance being placed on Dr Thurai's notes was that they were not objected to. The plaintiff sought to meet this difficulty in the following way. He said that Mr A J Lidden, who was counsel for the plaintiff at the trial and who was led by Mr G B Hall QC on the appeal, had a difficult forensic crisis to deal with. Mr Hall argued before this Court that Mr Lidden had submitted at the trial that the effect of the plaintiff's evidence was that the plaintiff had never consulted Dr Thurai (Red 23W: a submission which is not in fact easy to support from the plaintiff's evidence). Mr Hall submitted (transcript pages 14 lines 20-22 and 26-35, 15 lines 55-57 and 16 lines 15-24): "Mr Lidden could see the judge was absolutely pre-occupied with this document. Mr Lidden was absolutely convinced it could not be probative. … You have had a range of judgments from Mahoney DCJ. I'm not criticising him personally but he's a forceful sort of judge and he tends to get bees in his bonnet and push on and Mr Lidden was trying to reassure him. If he didn't show it to him the situation would be worse than if he did. So in the best of all worlds he said well look have a look at it but I'm telling you it cannot be evidence and that's the position Mr Lidden always maintained. … Mr Lidden's trying to deal with a fairly headstrong judge. He's making his position very clear. … It could not be evidence but with a judge looking very suspicious that Mr Lidden's side was not telling him what he needed to know, rather than just take a sort of dog in the manger objection about admissibility which would have merely heightened the judge's suspicion, he let's him see it but makes his point and it would be unfair to the plaintiff, I submit, bearing in mind the stage of the trial at which it was admitted, the circumstances it was admitted." 30 The plaintiff then argued that the structure of the judgment showed the same concern of the trial judge about the withholding of evidence as had been shown in the course of the argument at the trial. First, the trial judge noted the absence of evidence from the hospital and from Dr Pillai (Red 22N-W). Then the trial judge dealt with Dr Thurai (Red 23-24). Then he examined the credibility of the plaintiff, and to some extent that of his wife, at Red 25-30G. He submitted that Dr Thurai's notes must have been instrumental in causing the trial judge to reject the plaintiff's evidence about his pre-accident state of health. In short, the plaintiff's counsel said, "there can be occasions where a judge runs off the rails and this is such a case" (transcript page 21 lines 19-20).

[39]

(b) Why did the plaintiff not object to Exhibit 13? 38 The plaintiff's explanation for the failure to object to Dr Thurai's notes is an attempt to deal with the fact that there were no doubt several ways of handling the trial judge's interest in Dr Thurai. 39 One would have been to object to the tender: there were many technical grounds for doing so. The difficulty lying in the path of objecting to Exhibit 13 was that by the time the addresses commenced, the contents of Exhibit 13 were already in evidence in several places in another form. First, they were in evidence in the form of Dr Eggins' accurate summary recorded in Exhibit 4C (Blue 107). Secondly, they were in evidence in Dr Dalton's accurate summary (Blue 125N-R). Thirdly, material parts of them were in evidence in one of Dr Bodel's reports (Blue 91N-R). None of these three items of evidence was objected to. The plaintiff conceded that all had been served as material to be tendered pursuant to the rules well before trial (transcript page 22 lines 44-56). This Court was not taken to any material indicating any attempt by the plaintiff to obtain access to Dr Thurai's notes before trial by Notice to Produce or letter or otherwise. The course of objecting to Exhibit 13 by itself would thus have been futile. If it had been adopted, it could only have been done usefully if the threat perceived from Dr Thurai's notes had been headed off by earlier objections. 40 Another way of dealing with the trial judge's interest in Dr Thurai would have been to clarify more precisely what the purpose of the tender was and to seek an order under s 136 of the Evidence Act 1995 limiting the use of the evidence to that purpose. (Section 136 provides that the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing). The submissions of the plaintiff on appeal that Exhibit 13 was tendered only on the basis that it could prove no more than that it might constitute Dr Thurai's notes is not supported by the transcript. But even if a s 136 order limiting the use of the evidence to that extent had been sought, it ought to have been refused. That limitation would have made the evidence inadmissible because irrelevant (s 56(2)): if tendered only on that basis, Exhibit 13 would not have been capable of rationally affecting the assessment of the probability of the evidence of a fact in issue. Hence that method of dealing with the trial judge's interest in Dr Thurai would have been useless. 41 A third method of dealing with the trial judge's interest in Dr Thurai was to do what was done. The merit in doing what was done was that it may have caused the crisis which had suddenly arisen to subside. However, adopting that course had certain consequences. Once Exhibit 13 was in evidence, and once it was accepted that Exhibit 13 "might be the notes of Dr Thurai" (Black 83M), it was open to the trial judge to find that they were. Subject to issues of compliance with the rule in Browne v Dunn (1893) 6 R 67, it was open to the trial judge to use them for whatever probative worth they had. In the event he found that they were Dr Thurai's notes, but did not use them as part of the operative reasoning that led to his conclusions on the issues. Whatever the reasons were for adopting the course which was taken (and it is not intended to criticise the plaintiff or his counsel at trial for taking that course), once the course had been taken so as to seek to obtain its potential advantages, the plaintiff had to face up to and live with its potential disadvantages as well.

[42]

Ground 2 48 This ground was: "The Trial Judge erred in raising during address on behalf of the Plaintiff that he was minded to accept that the clinical notes were those of the Plaintiff in circumstances where the Plaintiff was not cross-examined to suggest that the notes were of him and no suggestion was made during address on behalf of the Defendant concerning them." 49 This appears to rest on a false premise. The trial judge did not say he was minded to accept that the clinical notes in Exhibit 13 were those of the plaintiff. All he said was: "Secondly, that exhibit 13 might be the notes of Dr Thurai" (Black 83N). He was not thereby indicating his own state of mind. He was merely summarising the consensus at which the parties had arrived. Indeed, the fourth point in the summary of the consensus explicitly reveals that the trial judge had not arrived at any state of mind about whether Exhibit 13 referred to the plaintiff: "Fourthly, the defendant has no access to any other identification of the patient referred to in Exhibit 13, such as date of birth or middle name?" (Black 83P-Q). 50 Even if the trial judge had said he was minded to accept that the clinical notes were those of the plaintiff, there is no error, but rather merit, in the judge raising a matter about which he had formed a preliminary view for the consideration of the parties and for any submission about it they wish to make. Questions or tentative statements in address are not equivalent to findings in reasons for judgment. 51 The suggestion in Ground 2 and para 4.3 of the plaintiff's written submissions that the contents of Exhibit 13 were never put to the plaintiff by the defendant in cross-examination is more relevant to Ground 1 than to Ground 2. It is true that the plaintiff was not specifically cross-examined on the document or the matters described in it. But counsel for the defendant did ask the plaintiff who his doctor was in 1986 (Black 35N-P). He asked the plaintiff whether it was possible that there had been more than one prior injury to his back (Black 37D). And he did put to the plaintiff the general proposition that he was not truthful with Drs Ellis, Eggins and Matheson about the history he gave them (Black 53U-V). 52 The plaintiff's argument that the defendant's counsel made no suggestion about Exhibit 13 during address cannot be evaluated, since this Court does not have the totality of counsel's addresses. If it is true that the defendant's counsel did not, he cannot be criticised for non-compliance with the rule in Browne v Dunn (1893) 6R 67, since that rule only requires that the case on which the cross-examiner proposes to rely is put to the witness. Further, even if the defendant's counsel did make any suggestion about Exhibit 13, he cannot be criticised, because the plaintiff's lawyers, and hence the plaintiff, must have been on notice of the matters appearing in the contents of Exhibit 13. They were accurately set out by Dr Eggins in Exhibit 4C (Blue 107-108) and by Dr Dalton (Blue 125M-Q). They were referred to Dr Bodel (Blue 91M-R). In addition, they were relied on by Dr Eggins in reaching his conclusion that the plaintiff had no permanent impairment (Blue 109R and 115M). The plaintiff conceded on appeal that these medical reports gave notice of the Dr Thurai problem when they were served well prior to trial (transcript page 22 lines 44-56). The medical reports were all admitted without objection. Since the plaintiff and his lawyers were on notice of Dr Thurai's material, they must have been on notice that any suggestion that there was only one episode of back trouble stemming from a pulled muscle in 1987 was potentially controversial. The rule in Browne v Dunn thus does not apply.

[45]

Ground 5 57 This ground states: "The Trial Judge, having been informed by Counsel for the Defendant that it could not be proven in any way that the clinical notes were those of the Plaintiff, erred in holding that they were." 58 Counsel for the defendant did not inform the trial judge that "it could not be proven in any way that the clinical notes were those of the Plaintiff". All he said was that he could not "establish the source" or "prove the provenance of Exhibit 13" (Black 83F and S-T). Even if counsel for the defendant had said what Ground 5 attributes to him, he could have been wrong. It is true that the plaintiff could have relied on what counsel for the defendant said as an admission justifying exclusion of Exhibit 13, but, far from doing that, the plaintiff consented to the tender. The contents of Exhibit 13 correspond to a considerable degree with Dr Eggins' summary in Exhibit 4C. There is no reason to suppose that Dr Eggins was not summarising it bona fide and with reasonable accuracy. Since Exhibit 4C was not objected to, it was open to the trial judge to use the statement of facts in it as evidence of the facts asserted at least so far as one fact represented is that the solicitors for the defendant in fact sent the plaintiff's clinical records. There were preconditions to the admissibility of Dr Eggins' representation. The preconditions depended on whether Dr Eggins was available (s 64(2)) or was not available (s 63 and Dictionary, Part 2, clause 4). The failure to require Dr Eggins to attend for cross-examination and the non-objection to Exhibit 4C amounted to a waiver of the rights which would otherwise flow from non-satisfaction of those preconditions to the admissibility of Dr Eggins' representation. There is no reason to suppose that either those solicitors, or anyone who supplied the clinical records to the solicitors, would have fabricated them. Similar reasoning applies in relation to Dr Dalton (Blue 125M-Q) and Dr Bodel (Blue 91N-R). Accordingly it does not seem erroneous for the trial judge to have concluded that Exhibit 13 was one page of Dr Thurai's clinical notes about the plaintiff. Even if it was erroneous, it was a harmless error, because the trial judge did not rely on it in his operative reasoning.

[52]

The "previous representations" in medical reports are relevant for a purpose other than proof of the fact intended to be asserted by the representation. Hence the hearsay rule does not apply to the evidence of previous representations, and they are admissible. That at least is what the Court of Criminal Appeal held in R v Welsh (1996) 90 A Crim R 364. While the Court of Criminal Appeal is not bound by decisions of the Court of Appeal, the Court of Criminal Appeal "would naturally have great regard for a carefully considered decision of the Court of Appeal": R v Masters (1992) 26 NSWLR 450 at 472. The Court of Criminal Appeal will follow decisions of the Court of Appeal unless convinced they are plainly wrong: R v O'Halloran [2000] NSWCCA 528 at para 92. In my judgment the same applies where the Court of Appeal is confronted with a decision of the Court of Criminal Appeal in point. I do not consider that the decision of Hunt CJ at CL, Newman J and Bell AJ in R v Welsh was plainly wrong. It follows that it does not matter that it is not possible to point to some other hearsay exceptions such as those relating to business records to support the reception of histories and other factual material in clinical notes. 71 Thirdly, while an objection to Exhibit 13 or the corresponding parts of the reports of Dr Eggins, Dr Dalton and Dr Bodel, might, had it been made, have succeeded, it was not made. 72 Fourthly, whether individual parts of those Exhibits should have been given weight, and if so how much, was a matter for the trial judge. The proposition that he ought to have placed no weight on them is exaggerated and invalid. 73 Fifthly, the plaintiff has not shown that the statements of history of which it complains, all of which relate to Dr Thurai's supposed observations, were in fact relied upon by the trial judge. 74 Sixthly, the defendant contends that no submission was made at trial to the effect of that set out in para 5.2 of the plaintiff's submissions. If that is correct, and nothing in the transcript as recorded in the Black Book records such a submission, that is an independent reason why Ground 12 should be rejected. When the plaintiff failed to object to the tender of the offending parts of the medical reports, the defendant's case was proceeding and the plaintiff would have known well that the defendant had not cross-examined him on the offending parts. If the plaintiff, having failed to object to the offending parts in those circumstances, had submitted that no weight should be placed on the contents, the trial judge would have been entitled to query what the point of not objecting was. The plaintiff ought not to be permitted to change the stance he adopted at the trial on the hearing of this appeal.

[53]

Grounds 10-11 75 These grounds are as follows: "10. The Trial Judge erred during cross-examination of an investigator by Counsel for the Plaintiff by informing Counsel that further cross-examination on the topic of the horse fence was unnecessary since the Plaintiff's evidence was the only evidence on that topic whereupon Counsel for the Plaintiff ceased that cross examination and thereafter finding adversely to the Plaintiff on that issue. 11. The remark above as to cross-examination of the investigator amounted to an indication that the Trial Judge proposed to accept the Plaintiff's evidence on that point whereas in fact the Trial Judge did not accept the Plaintiff's evidence on that point and used that rejection to determine both credit issues and ultimate issues in the case." 76 At the hearing of the appeal the parties were not in agreement about what the trial judge said. Pursuant to leave, after the hearing the parties listened to the relevant untranscribed part of the tape of proceedings, which had been produced on subpoena. They then arrived at substantial, though not complete, agreement. So far as there is disagreement, it does not affect the outcome. 77 The trial judge's intervention came during the cross-examination of Mark Hendrie. He was a private inquiry agent who gave evidence that he made two video films of the plaintiff, one on 19 October 1996 and one on 20 October 1996. The film taken on 19 October 1996 showed the plaintiff digging fence post holes, carrying fence posts and working on a fence. 78 Before Mr Hendrie was called, the state of the evidence in relation to what happened on 19 October 1996 was that the film had been shown (Black 44Q). The plaintiff had said in cross-examination he had done the work which the film showed him as doing "as an emergency job" because the horses which an existing fence had confined had knocked it down (Black 45J), and he had taken three Panadeine Forte tablets "before I started because I knew it had to be done and couldn't stop until we finished" (Black 45T-U). In re-examination he said he first noticed there was something wrong with the horse yard on the day he fixed it, when his daughter had told him the horses were loose (Black 59K-N). 79 At Black 71E-K the following is recorded in the cross-examination of the private inquiry agent: "Q. On the 19th when you exposed film, before you set the camera in motion, did you notice any damage to the horse yard on the property? A. I was actually at another part of the yard, watching from another part of the yard and I didn't really notice any damage. It wasn't until the vehicle was driven into the vicinity of where the activity was, where I filmed, that I actually noted there was people there. I actually then changed my position and then filmed the respective activity. Q. You didn't do any damage to the horse yard yourself? A. Why would I do damage to the horse yard? Q. I'm just asking you? A. No. HIS HONOUR: The question you were asked, what's your answer? A. No." 80 It is agreed that at that point Mr Lidden, for the plaintiff, began to ask another question. The plaintiff's version of what the tape records is: "LIDDEN: Now to your knowledge. HIS HONOUR: Can I just remind you Mr Lidden, that it is a matter for you Mr Lidden, but there wasn't a shot put across your client's bows on this one. LIDDEN: Yes, alright." 81 The defendant's version is: "LIDDEN: Nobody to your knowledge associated with you … HIS HONOUR: Can I just remind you Mr Lidden, it's a matter for you but there wasn't a shot put across your client's bows on this point. LIDDEN: Yes, alright." 82 The evidence then continued as recorded at Black 71L with questions about the film made on 20 October 1996. 83 It was not suggested that there was anything sinister in the fact that the words appearing only on the tape had not been transcribed. Those responsible probably regarded it as the kind of insignificant exchange between bench and bar which is often not recorded in what is, primarily, after all, a transcript of evidence. 84 The plaintiff's submissions in relation to the material not appearing on the transcript were as follows (paragraphs 2.1-2.7): "2.1.1 After the Trial Judge's intervention in relation to the Corral fencing, Mr Lidden asked no further questions on that topic. 2.1.2 The Trial Judge gave no indication that he intended to reject the Appellant's evidence, or that he regarded it was inadequate. 2.2 The Trial Judge made two findings in relation to the Corral fencing which were, on the whole of the evidence, inaccurate. At Red Appeal Book 26J he found 'the first day's film showed the Plaintiff, accompanied by his daughter, who was an onlooker, erecting a bush Corral to contain horses from escaping onto the Public Highway. (The Appellant submits he was not 'erecting' the Corral, he was repairing it after it had been broken down, most probably had the Cross-Examination of the Investigator Mr Hendrie not been stopped, by Mr Hendrie.) 2.3.1 At Red Appeal Book 28E, His Honour referred to the Appellant's explanation for his ability to perform as demonstrated on Video film 'that the building of the Corral was a matter of necessity, because the horses had broken down other fencing, and were at risk of straying out onto the Highway'. 2.3.2 The Appellant had given evidence (Black Appeal Book 45J) 'Well from what I can recall, it was the horses had knocked the fence down from around the dam, and it was an emergency job, it had to be done otherwise they'd get out onto the highway, and I've got nobody else to fall back on, so that's what was happening, we were repairing the fence around the dam'. The Plaintiff gave evidence of taking three Panadeine Forte before he started because he knew it had to be done and he couldn't stop until it was finished (Black 45T). As the Appellant was unaware of Mr Hendrie, it was not unreasonable for him to assume that the horses must have knocked the fence down. But in the light of the attack about to be mounted upon Mr Hendrie, the Trial Judge effectively misled Counsel for the Appellant as to the attitude he was going to adopt in relation to the Appellant's evidence, which, by that stage of the Trial, had been completed. By then, in retrospect, it would seem more probable than not that the Trial Judge had (at the lowest, prima facie) reached a view adverse to [the] Appellant in relation to the evidence the Appellant had given, yet his intervention led Counsel for the Appellant to believe that the Trial Judge had decided to accept the evidence of the Appellant. 2.4 The Trial Judge reviewed the relevant portion of film at Red Appeal Book 26J-27G. At Red Appeal Book 27T-W he found that the activities filmed were in marked contrast to what the Appellant had been telling Doctors, and to what the Appellant had said in Court about the extent to which he was capable of performing physical activities. 2.5 The Appellant submits that his evidence was not, when read in context, inconsistent with the film. Compare as to mowing the lawn and gardening (Black Appeal Book 28C and J), as to digging (Black Appeal Book 29H), as to picking up things (Black Appeal Book 29K), as to building corrals and fences (Black Appeal Book 43J) (all of the foregoing before the film was shown) and his Cross-Examination at Black Appeal Book 45W et seq to Black Appeal Book 47J after the film had been shown. 2.6 The Appellant submits that the exchange between Counsel and Judge, as now inserted into the Transcript, gave Counsel for the Appellant the impression that he need not Cross-Examine further on the topic of the horse fence, as the Judge took the view that the Appellant's evidence was the only relevant evidence on that topic, and, by implication, that he would accept the evidence given by the Plaintiff on that topic. Thereafter, Counsel for the Appellant did not further Cross-Examine the Inquiry Agent on that aspect of the case. The Trial Judge gave no indication that he was minded to reject the Plaintiff's evidence, as he did (at Red Appeal Book 28J). There is nothing in the evidence at Black Appeal Book 42J to Black 42W to support the findings made by the Trial Judge at Red Appeal Book 28L-28S. 2.7 The process of fact finding followed by the Trial Judge, commencing with his reliance on Exhibit 13, and based on unsupportable conclusions as to the Plaintiff's evidence in relation to the Video film, was unsatisfactory, and the Judgement in the Court below should be set aside, and a new Trial should be ordered." 85 The material at Red 28J and Red 28L-S, together with some prefatory material, is as follows (Red 28): "His explanation for his ability to perform as demonstrated on the video film was that the building of the corral was a matter of necessity because the horses had broken down other fencing and were at risk of straying out onto the highway. He explained that he had been able to work as displayed on the film because he had taken three analgesic tablets before embarking upon that activity. I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience. In fact, it is not entirely certain that he was prepared to admit that he had very much present recollection of the day at all until he had been shown the film. I do not accept his explanation, especially bearing in mind the way in which he answered questions whilst the cross-examiner was, literally building the trap, preparatory to displaying the video film. During those answers, the plaintiff demonstrated an awareness that he was being set up to be attacked some way and the more the trap was being prepared the more guarded he became. He demonstrated an acute awareness that something was being prepared to his disadvantage in the questions." 86 One submission of the defendant was that the trial judge had not stopped the plaintiff's cross-examination of the private inquiry agent in any respect other than on the question of whether there had been damage to the yard. The defendant also submitted that in any event once the private inquiry agent had denied causing damage to the yard, in answer to questions, rather than suggestions, from both the plaintiff's counsel and the trial judge, "there could be no further exploration of the point". It is convenient to indicate at this point that these two arguments lack validity. It was common ground that the plaintiff was trying to repair a fence, and it was common ground that there was damage to the fence, otherwise there would have been no point in him trying to repair it. The plaintiff's counsel was not cross-examining the private inquiry agent to establish that there was damage, but rather to establish that he had caused it. Further, in that enterprise the plaintiff's counsel was entitled to ask more than a question or two in cross-examination before "further exploration" was prevented. 87 The defendant put another submission, namely that the trial judge did not reject the plaintiff's evidence that the fencing had been broken and that there was an emergency because of the risk of the horses straying; rather he rejected the plaintiff's evidence that that circumstance caused him to display a greater capacity on the film than he in truth ordinarily possessed. That submission will be considered below. 88 The parties agreed on the actual words of the trial judge recorded on the tape. However, there is a preliminary difficulty in understanding precisely what the words used at the trial by the trial judge were intended to mean. In particular, it is not clear what issue the words "this one" refer to. The cross-examination was apparently directed to seeking a concession by the private inquiry agent that it was he who had knocked the fence down, or procured it to be knocked down, with a view to provoking the plaintiff into carrying out work he would not have otherwise carried out. Whether the inquiry agent had done that was not something of which the plaintiff would be likely to have had knowledge, and the plaintiff did not say in chief or in re-examination that he did have any knowledge on the point. All that the plaintiff said about the condition of the fence was that the horses had knocked the fence down. It was common ground between the parties that the fence had been knocked down. The effect of the trial judge's intervention was certainly to stop cross-examination of the inquiry agent to suggest that he had had it knocked down. However, no serious prejudice to the plaintiff's case flowed from that course. If the inquiry agent had knocked the fence down, it would have been a reprehensible act, not least because of the danger to traffic on nearby roads which escaping horses would have caused. But misconduct of the inquiry agent, whether the defendant had encouraged it or not, would not have nullified or remedied any damage to the credit of the plaintiff which had already been inflicted. A concession of misconduct by the inquiry agent would have been injurious to his credit, but he gave very little evidence to which his credit was significant, because it was, after the plaintiff's cross-examination was over, common ground that he had done the work which the 19 October 1996 film showed. The plaintiff submitted that the private inquiry agent could have been cross-examined about why the whole of the plaintiff's activities over the two hours they lasted were not filmed. However, the trial judge does not appear to have stopped this type of cross-examination, since the topic of "selective filming" was dealt with in relation to the film of 20 October 1996. And even if the trial judge's intervention did have the effect of stopping this type of cross-examination in relation to the film of 19 October 1996, the thirty-five minutes of film taken on that day gave a sufficient impression of the plaintiff to support the trial judge's conclusions about what he could do. 89 Any difference between the plaintiff's complaints about his post-accident condition and what could be inferred from his movements as recorded on the 19 October 1996 film was a matter for the plaintiff to explain. The acceptability of his explanation would turn on his credit. It would not turn on the credit of the private inquiry agent. And it would not turn on any belief by the defendant that it could only win the case by causing the private inquiry agent to knock down the fence. 90 The plaintiff at one point appeared to submit that the trial judge's intervention led Mr Lidden to believe that the trial judge had decided to accept the plaintiff's evidence as a whole. I do not think that any such inference could reasonably have been drawn from the intervention. Even if such an inference was drawn in fact, there is nothing more the plaintiff could have done about improving his position from a credibility point of view by that stage: he had left the box and his own case had closed. As already indicated, any damage which might have been inflicted on the credibility of the private inquiry agent or the credibility of the defendant's overall position by investigating whether the private inquiry agent damaged the fence would not have availed the plaintiff in a contention that he was creditworthy, because of the various reasons, not complained of in the Notice of Appeal, which the trial judge had for rejecting his creditworthiness. Further, to argue that the trial judge's remark was an acceptance of the plaintiff's evidence as a whole goes beyond grounds 10 and 11, which limit the extent to which the plaintiff's evidence was putatively accepted to "the topic of the horse fence" (see "that issue" in ground 10 and "that part" in ground 11). 91 The plaintiff submitted that the trial judge's conclusion that what was shown on the film was inconsistent with what the plaintiff said before it was shown was wrong. The evidence relied on for that submission does not support it. The trial judge's conclusion on this point is not only in part credit-based, but it is based on the evidence of what he saw with his own eyes when the film was shown. No application was made to show the film, Exhibit 1, to this Court. Accordingly, what the trial judge said about the film must be accepted, particularly since it was not attacked. The trial judge's perception that it gave a radically different impression of the plaintiff's capacities from what the plaintiff said they were is very difficult to criticise. 92 The plaintiff attacked the findings at Red 28J and Red 28L-S. It will be remembered that the finding at Red 28J was: "I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience."

[56]

The plaintiff attacked Red 28J and Red L-S separately, but they must be read together. 93 The plaintiff's submission that there is nothing in Black 42J-W to support the conclusions at Red 28L-S overlooks the fact that there was much other material at Black 28T-31W and 42J-43W which undercut the plaintiff's credibility in the manner described by the trial judge and in other respects in relation to the films of his fence work and his mowing. While saying he could do a little bit of lawn mowing and gardening, he denied bending while mowing (Black 28R-T), yet later he admitted that the 20 October 1996 film showed him bending to remove sticks (Black 51H-J). He said he had tried digging "when we had heavy rainfall" with the use of garden tools (Black 29H-J), but could not recall carrying fence posts (Black 29P). He said that digging combined with carrying garden tools caused his movements to become slower, but he usually knocked off before that stage (Black 30M-T). He volunteered that he had only ever once dug into the ground on his property, and that was to clear a drain; this appears to have been a reference to the occasion when there was heavy rain fall (Black 31S-W). This answer was contradicted by the later evidence about digging holes for the fence posts. Later, on being reminded of the drain-clearing incident, he said: "that's all I can remember" (Black 42L). It was put to him that he had found it necessary to build corrals and fences to keep the horses in his property, and he agreed (Black 43J). He did not agree that this involved digging holes in the ground, because star posts were used (Black 43N) - an inherently suspect answer, since even star post fences require some substantial holes in the ground for posts. He then agreed that this involved carrying items to be used as fence posts (Black 43N), but that they were only star posts (Black 43T). He then repeated that no holes were dug because star posts were used (Black 43V). The film of the fence erection was then shown, and cross-examined on, followed by the showing of the mowing film. This material affords reasonable support for the trial judge's criticisms of the way the plaintiff answered questions before the first film was shown. It also supports the trial judge's doubts about the plaintiff's preparedness to admit "very much present recollection of the day at all until he had been shown the film". 94 The trial judge's criticisms and doubts afforded a justification for his treatment of the plaintiff's explanation that he had been able to work as the film revealed because of taking three analgesic tablets as "an answer of convenience". It is true that before the film was shown the plaintiff had said that he could work longer after taking pain killers than he could if he did not take them (Black 31L-R). But the film showed him carrying out the activities described by the trial judge over two hours (1.34-3.31pm, 35 minutes being recorded: Red 26E). It was work which, before the film was shown, he several times denied doing or said he could not remember doing. What he did as described by the trial judge (Red 26J-27G) was radically different from what one would expect him to be capable of in view of the evidence he gave before the film was shown, even allowing for the effects of pain killers. In any event this part of the trial judge's reasoning related to primary facts and questions of credit in relation to which there appears to be no ground to interfere. 95 The difficulty which Grounds 10-11 raise stems not from the plaintiff's explanation so far as it turned on taking three analgesic tablets. Rather it stems from the plaintiff's evidence that he built the corral as a matter of necessity because the horses had broken the fencing. When the trial judge said: "I find his explanation for how he managed to perform in the way demonstrated on the video was an answer of convenience" (Red 28J), either he was not intending to refer to the evidence about the building of the corral being a matter of necessity, or he was. If he was not intending to refer to the evidence about the building of the corral as a matter of necessity, then Grounds 10 and 11 have no basis. However, the sentence referring to the building of the corral as a matter of necessity commences with the words "His explanation" which suggests that the explanation rejected as an answer of convenience may include that explanation. On the other hand, what was rejected was "an" answer of convenience", not two answers, and this creates an issue as to what the relevant answer was. If the trial judge was intending to say that in truth the broken fencing was not something causing the need to build the corral as a matter of necessity, and was thus rejecting as an answer of convenience the evidence about the building of the corral being a matter of necessity, there was unfairness in this course. But that unfairness does not stem primarily from the trial judge having stopped the plaintiff's cross-examination of the private inquiry agent, it stems from the absence of any evidence capable of suggesting that the plaintiff had any reason for building the corral other than a need to stop the horses straying. It may be, as the defendant submitted, that the trial judge was intending to say something else, namely that while he accepted the plaintiff's evidence that the fencing was broken, and while he accepted the plaintiff's evidence that that created an emergency, he did not accept the plaintiff's suggestion that these circumstances had given the plaintiff a capacity to work as demonstrated on the film which he did not ordinarily have. That part of his evidence was the "answer of convenience", or one of them. If that is what the passage in question means, then there was no unfairness in stopping the cross-examination of the inquiry agent. It seems likely that that is what the passage means, because the trial judge accepted the plaintiff's evidence that his work on the corral was "to contain horses from escaping onto the public highway" (Red 26J). That implies an acceptance of the plaintiff's evidence that the fencing was broken, that the horses were at risk of escaping, and that preventing them from doing so by repairing the fence was an emergency task. The work done by the expression "answer of convenience", if it applies to the evidence about the corral, was to reject the plaintiff's evidence as an explanation of why he could work beyond his normal capacity. 96 However, whichever construction of the passage at Red 28C-J is correct, and whatever the motivation for the trial judge's intervention recorded on the tape, no appellable error is revealed, because even if the cross-examination had continued, it could not have improved the plaintiff's credibility, whatever adverse impact it might have had on that of the inquiry agent. 97 There are aspects of the parties' submissions on Grounds 10-11 with which it is not necessary to deal in detail. Thus the plaintiff's distinction between "erecting" the corral and "repairing" it does not matter: what mattered is what capacity the plaintiff revealed. And the defendant's contention that many parts of the plaintiff's submissions purportedly in support of Grounds 10-11 went beyond them need not be dealt with: arguably they did not, but so far as they did, they have been rejected in any event.

[59]

This latter evidence points towards good health before March 1990. 101 In cross-examination the evidence of the plaintiff's wife on the subject of her husband's pre-accident health was as follows (Black 63X-64P): "Q. You've indicated that as far as you can recall, your husband, prior to this incident in 1990, had made no complaint of back pain to you? A. No. Q. Were you aware that your husband had been treated by a physiotherapist for a back problems some years prior to this accident? A. Yes. Q. Are you able to recall over what period of time he was treated? A. No I'm not, it was a long time ago. Q. Are you able to recall him telling you anything about the treatment that he received on that occasion? A. No. Q. Do you remember him, at any stage, telling you that he was undergoing traction for his back? A. No I don't. Q. Do you remember him telling you on any occasion, that he was undergoing physiotherapy for his back some years prior to the accident? A. He was seeing a doctor out at Rockdale, that's all I know. Q. Does the name Atkinson ring a bell with you as far as that practitioner is concerned that he was seeing? A. I think that might be his name, I can't remember. Q. So you were aware that your husband was receiving treatment for a back problem some years prior to the accident? A. Yes." 102 The plaintiff pointed out that the first question and answer quoted from the above cross-examination did not "fairly recapitulate" her evidence at Black 60S, which was limited to the year before March 1990, well after Mr Atkinson's treatment in 1987. The plaintiff also submitted that the evidence given in cross-examination about Mr Atkinson's treatment of her husband, which was correct as far as she could recall it, did not affect the credibility of her answer in chief or any other part of her evidence. 103 In my judgment the rejection of the evidence of the plaintiff's wife, for which no reasons were given, is incapable of being supported. Whatever advantage the trial judge had in relation to her evidence does not appear to have been used; his finding about her does not appear to be capable of being based on any particular evidence; and if it was based on evidence, that evidence would appear to be inconsistent with her internally consistent evidence quoted above. Compare Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477. 104 Hence the criticism underlying ground 13 is made out. Whether that is sufficient to permit the appeal to be allowed is considered below.

[60]

Substantial Wrong or Miscarriage? 105 If the plaintiff succeeded on any of Grounds 1-9 or 12, no substantial wrong or miscarriage of justice would have been occasioned by the error complained of. That is because these grounds of appeal do not challenge in any way the central aspects of the reasoning which the trial judge adopted. The reasoning was forceful and convincing. Even if Exhibit 13 and the corresponding material elsewhere in the evidence was taken into account by the trial judge in some way not revealed in his reasons for judgment, there was ample material supporting the correctness of his conclusions quite independently of it. The plaintiff failed on liability. The fundamental question in the case so far as the issue of liability was concerned was whether the version of the accident of 27 March 1990 which the plaintiff gave in chief was correct. A critical problem for him was that he had made four near contemporary statements which were inconsistent with his evidence-in-chief. He made one to the ambulance officer on the same day as the accident, 27 March 1990. He made one to Dr Pillai before 11 April 1990. He made one in the workers compensation claim form on 11 April 1990. And he made one to Dr Bodel on 15 May 1990. The plaintiff never explained why the statement in the claim form in his own handwriting and signed by him came to take the form it did (Black 59H). That in turn negates the likelihood of the plaintiff giving the ambulance officer a wrong account while under the influence of pain. And it negates the likelihood of the ambulance officer, Dr Pillai and Dr Bodel being mistaken as to what the plaintiff said to them. Counsel for the plaintiff tried to explain away the ambulance officer's note by saying that it did not establish that the plaintiff was the source of the information about the accident which it recorded. That, if sound, was a ground for objecting to the evidence or a ground for a s 136 order, but no objection was taken and no s 136 order was asked for. In those circumstances the trial judge was entitled to infer that the source of the information was the plaintiff. In choosing between the contemporary versions which the plaintiff gave within six weeks of the accident, and other versions given years later culminating in his testimony nine years later, the trial judge was entitled to form and rely on the views on the plaintiff's credibility which he did form. In addition, the trial judge's impressions of the video tape evidence and the trial judge's findings about the plaintiff's testimonial reaction to its advent were powerful. The plaintiff's submissions on appeal in relation to Grounds 1-9 and 12 scarcely touch any of these central elements in the trial judge's reasoning. Part of the submissions on Ground 12 criticise the reasoning in relation to what the films showed, but unsuccessfully. 106 As to Grounds 10 and 11, even if they had been made out, the plaintiff's evidence in relation to the fence incident as a whole nevertheless showed that he had been untruthful in his evidence about his capacity to work, and his overall evidence on the subject displayed a sensitiveness about it which supported that conclusion. The four inconsistent statements made soon after the accident again constitute material supporting the trial judge's finding on how the accident happened and which are untouched by any error of the type complained of in Grounds 10 and 11. Hence any such error would not have amounted to a substantial wrong or miscarriage. 107 The plaintiff succeeded on Ground 13 (concerning the credibility of his wife), but that success does not justify a new trial. Her credibility was of marginal significance. So far as she supported his evidence about his pre-accident health, the only relevance of his evidence on that subject apart from credibility was to damages. On liability, the essential question was which of the various accounts of how the accident happened which the plaintiff propounded was correct. On that matter the wife's credibility had no bearing. While the error complained of in Ground 13 was unfair to the plaintiff's wife, that error, whether taken by itself or otherwise, did not cause any substantial wrong or miscarriage of justice to the plaintiff.

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Judgment (62 paragraphs)

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