Conclusion: the primary judge's findings
160 The appellant's submissions, in my view, fell into the error of nit-picking through the primary judge's reasons rather than looking at their substance.
161 It is apparent, for example, that the primary judge's description of the appellant's behaviour as "bizarre" was his Honour's conclusion based on his observation of the appellant's behaviour in the witness box and his behaviour on the videos. The appellant criticises his Honour's conclusion as not acknowledging that the appellant had undergone a triple fusion. That submission, however, begs the question, assuming the level of disability the appellant described in his evidence (and to medical practitioners) existed in fact. However that was the question the primary judge had to determine. I shall return to the evidence from which, in my view, it is apparent that it was open to his Honour to reach the conclusion that the appellant's behaviour was "bizarre" and content myself with saying, at this stage, that it is not apparent that his Honour's fact-finding process was contaminated by this characterisation of the appellant's behaviour.
162 His Honour rejected the appellant's case that he was totally disabled because he concluded his evidence was unreliable not merely because he thought his behaviour as a witness was bizarre. The appellant has not demonstrated, in my view, that his Honour "failed to use or …palpably misused his advantage" or that his Honour's conclusion in this respect was erroneous in any of the other respects sanctioned by authority.
163 In my view the primary judge was entitled to reject the appellant's evidence of his disabilities because of the overall effect of the video evidence. The 2000 video showed the appellant carrying out his work in a manner that belied his evidence that the extent of his disabilities was then such that he could no longer carry on work. This contrast between the appellant's account of his disabilities and the video evidence was also apparent in the 2002 recording. Finally the 2004 videos showed him showed him moving without apparent restriction and carrying out the work of an auto-electrician, in an apparently unrestricted manner that contradicted his testimony.
164 The Further Supplementary Submissions challenge the primary judge's interpretation of the video, drawing attention, inter alia, to the investigator's notes that the appellant was moving cautiously at times. This underlines the difficulty of challenging the primary judge's conclusion about what he concluded the video depicted. This was an exercise of fact-finding peculiarly open to his Honour especially when it came to comparing what he thought the video depicted with the appellant's evidence about his disabilities and his behaviour in the witness box. These were areas where the primary judge, in effect, occupied the "box-seat". I would add that my observation of the video accorded with his Honour's and not with the investigator's notes, an observation which serves only to emphasise, again, the difficulty of second-guessing another's approach to such evidence. The investigator was not the fact-finder; the primary judge was. It might also be noted that Mr Conomos conceded the video evidence was inconsistent with the appellant's evidence and accepted that it was open to the primary judge to reject the medical evidence in the light of his conclusion about the appellant's credibility. Otherwise he sought to challenge the primary judge's use of the video on the basis of weight. For the reasons I have given that challenge must fail.
165 It might be accepted that, on its face, the cross-examination of the appellant did not produce any significant concessions, a proposition Mr Conomos's written submissions in reply appeared to contend militated against the primary judge's rejection of his evidence. But staunch adherence in the witness box to subjective evidence of disabilities belied by objective video evidence is just as, if not more, damning of a witness's credibility, than an appropriately made concession.
166 Finally it should be noted that insofar as the appellant criticises the primary judge for failing to refer to the large mass of medical evidence, it is apparent that the medical practitioners' opinions about the appellant's disabilities were largely, if not entirely, based upon what the appellant told them. His complaints about his disabilities were "not objective" evidence and the opinions depended upon them being established as a matter of fact: Whisprun (at [54]). His Honour concluded they were not.
167 In any event, in my view, as appears below, his Honour sufficiently referred to the medical evidence favourable to the appellant's case and explained why he rejected it. His Honour did not analyse every medical report. However he sufficiently identified the basis on which he rejected, for example, Mr Garofali's opinion. He also accepted Dr Kam's opinion that the appellant had made a reasonable recovery from his back operation, a conclusion his Honour might, in any event, have drawn based on the video. He also accepted the respondent's expert, Dr Cummine, who doubted the appellant's genuineness, an opinion which accorded with his Honour's view after seeing the video.
168 Finally, I would observe that if the primary judge's rejection of the appellant's subjective evidence about the extent of his disabilities meant that to the extent the medical opinions depended upon that level of disability, they lacked factual foundation: Whisprun (at [54]); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
Adequacy of reasons
169 As to the failure to give reasons point, it was essential that his Honour exposed his reasons for resolving points critical to the contest between the parties: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA (at 280) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it was necessary that the primary judge "'enter into' the issues canvassed and explain why one case was preferred over another". While his Honour was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171, 182)), it was necessary that his reasons facilitated appellate review: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [129] - [130]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed); Soulemezis (at 259) per Kirby P.
170 There are no absolute rules as to the requirement for the judge to give reasons and, in some circumstances, "there may be little to say other than that the witnesses for one side were more credible": Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry and Laws LJJ and Hidden J.
171 In my view the primary judge's reasons adequately exposed his treatment of the parties' respective contentions. His conclusions ultimately depended significantly on the credibility issue. He analysed the various videos against the appellant's account of his state of health at the time approximating that which the videos depicted. He also drew an overall conclusion adverse to the appellant's credit. That followed from his particular analysis and, further, was the sort of conclusion about which little more could be said: Flannery. His Honour sufficiently referred to the medical evidence and exposed his reasons for accepting or rejecting, as the case may be, the parties' contentions.
172 The grounds of appeal which complain about adequacy of reasons should be rejected.
Non-economic loss
173 The primary judge's conclusions about the appellant's credibility and the extent of his disabilities were clearly important issues when his Honour came to consider the issue of non-economic loss.
174 In considering this issue it must always be borne in mind that the assessment of non-economic loss is an evaluative process in respect of which minds may reasonably differ: Woolworths Ltd v Lawlor [2004] NSWCA 209 (at [14]). An appellate court will not interfere with a trial judge's assessment of damages "simply because it would have awarded a different figure had it tried the case at first instance": Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 (at 369) per Gibbs J. in Khan v Polyzois [2006] NSWCA 59 Hislop J (with whom Mason P agreed) said the Demir principle applies to the assessment of non-economic loss under s 16 of the Civil Liability Act 2002, and, a fortiori, they would apply , too, to the assessment of non-economic loss under s 134 of the MAC Act.