there would be no challenge to his judgment on the basis that he had not expressed his reasons for judgment. I do not consider that the absence of those observations given his Honour's very detailed reasoning in respect of the evidence, amounts to an absence of reasons. His Honour's reasoning process is absolutely clear. This is not a case where the Court is left either presuming or guessing at what his Honour did, although it has been necessary to work out the appropriate percentage basis of his Honour's assessment. However, the primary material for doing that was readily obtainable from the material before his Honour. In those circumstances, and contrary to the views expressed by members of the Court from time to time in argument during the course of the appeal, I have come to the conclusion that there is no appellable error on the basis of absence of reasons.
49 Even if I am wrong and his Honour failed to give adequate reasons, I would not disturb his Honour's finding. The award for future economic loss was clearly within the range of damages which his Honour was entitled to give and, even though this Court could, if it found error, enter upon the assessment process itself, I see no point in doing so when his Honour's award was within an appropriate discretionary range. I am of the same view in respect of his Honour's assessment of non-economic loss.
50 Since preparing these reasons I have had the benefit of reading in draft the judgment of Hodgson JA. I agree with the principles which he has found governed his Honour in this case: see Hodgson JA at para 66.
51 That principle was debated with counsel during the course of the hearing. In my opinion, the damages awarded by his Honour reflect that principle. Although his Honour did not express the matter in precisely the way formulated by Hodgson JA, his Honour's clear approach in not giving to the respondent and his witnesses the benefit of the doubt in respect of evidence which was unclear or uncertain (but with an honest witness might have been accepted) reflects that his Honour at all times had due regard to this principle.
52 Accordingly, I would dismiss the appeal with costs.
53 HODGSON JA: The circumstances of this appeal are set out in the judgment of Einstein J. I agree for the reasons he gives that the appeals on the questions of liability, contributory negligence, and contribution apportionment, should be dismissed.
54 Turning to the appeals on quantification of damages, I generally agree with Beazley JA, except in one respect which has considerable significance in the result. In my opinion, the primary judge's judgment did not, or did not sufficiently, give effect to the principle that, where one party is responsible for substantial deficiencies in the evidence, uncertainty flowing from those deficiencies should in a general way be resolved unfavourably to the party responsible for them. For that reason, I am of the view that the respondent's economic loss after the first year following the accident should be assessed at the rate of $125.00 per week instead of $250.00 per week; and that his non-economic loss should, as against Teamfox, be assessed as being one-quarter of a most extreme case and, as against Oran Park, be assessed at $120,000.00.
55 The primary judge found physical incapacity from the respondent's spinal injuries equating to an assessment of permanent incapacity of about 10% of a most extreme case: see par.[78] of his judgment. No challenge is brought to this finding, and it was plainly justified.
56 The primary judge also found that the respondent had suffered "significant brain damage": pars.[171] and [175]. Although this finding was challenged, it also was in my opinion justified. There were objective signs of brain damage. There was plausible lay evidence, including Ms. Sawyer's evidence about loss of memory and loss of sense of humour. Finally, Professor Broe's evidence, even when substantially discounted because of the respondent's false histories, still supported significant brain damage.
57 However, in my opinion there were errors in the primary judge's reasons and conclusion as to the economic consequences of these injuries.
58 The primary judge found the respondent had been employed by Teamfox from 1 November 1991 to 11 March 1992 at a salary of $450.00 per week net: par.[118]. This finding was not challenged by either side, and was plainly justified. The primary judge was unable to make any finding as to other pre-injury earnings or post-injury earnings, because of the unreliability of the respondent's evidence. He found that the respondent exaggerated his disabilities deliberately and fraudulently: par.[54]; and that because his credibility was so damaged it was not safe to rely on anything he said unless and to the extent that it was corroborated: par.[56]. He found that the respondent lied repeatedly and deliberately for the purpose of attempting to recover a greater sum of damages than otherwise appropriate: par.[171].
59 In those circumstances, the primary judge found that, prior to his employment by Teamfox at the age of 26, the plaintiff had been unemployed for substantial periods of time, and when in employment this was mostly in relatively unskilled and not well-paid work: par.[127].
60 As regards post-injury employment, the primary judge found that in June 1992 the respondent worked as a cleaner for Penrith RSL for a short time (par.[70]) and in October and November 1993 worked as a cleaner at the Summer Hill Hotel (par.[72]). He noted that "the evidence does not establish … how much he earned"; but he did not note there that the onus was on the respondent to establish what his economic loss was. The primary judge also found that the respondent worked in a business E & S Computers from about 1994 to about 1997, and also in a second-hand business conducted in the name of Ms. Sawyers from about 1997 until about 1998 or later. He noted that the former was partly a cash business, that its turnover was shown in its records for the year ended 30 June 1997 as about $445,000.00, and that he thought the respondent may have had a concealed interest in it. The primary judge concluded:
"151 The evidence does not establish that the plaintiff was capable of establishing or conducting a business such as that of E & S Computers, but neither does it establish or corroborate the case advanced by the plaintiff that his brain damage operates to prevent him from doing so."
61 Again there was here no express recognition that the onus was squarely on the respondent to establish what his economic loss was.
62 The primary judge found that the respondent treated the second-hand business as his own, and that the business was sufficiently successful to pay the vendor of the business $5,000.00 a month off the purchase price.
63 The primary judge summarised his views on economic loss as follows:
"171 Some aspects of the evidence concerning the, plaintiff's activities with E & S Computers and with the second hand business support Professor Broe's thesis about the effects of the brain damage upon the plaintiff, but overall the evidence points to the conclusion that the plaintiff has lied, repeatedly, deliberately, and for the purpose of attempting to recover a greater sum of damages than would otherwise be appropriate. I find that he suffered significant brain damage. I also find that he has not proved more than this generality, so far as concerns its effect upon his earning capacity and so far as affects him in a non-economic sense, so that attaching a dollar value to particular elements of damages is anything but a scientific exercise. Ms Sawyers said, and again I accept, that during the period of their relationship the plaintiff always seemed to have money available, and he did not ask her for money. She said that he dealt in various goods, buying and selling, and although I take this to have been a reasonably constant activity, it does not seem to have been one likely to have attracted much by way of profit, considering the position over a long period. At the same time, the plaintiff seems to have lived with a degree of comfort incompatible with the notion that he has lived on social security benefits alone; he has gone on holidays, engaged in various motor vehicle sports, and supported (sometimes) a mobile telephone, and the habit of smoking both tobacco and marijuana."
64 The judgment moves then to conclusions as to damages, giving no specific justification of the assessment of $250.00 per week impairment of earning capacity after the first twelve months after the injury.
65 The primary judge was in the situation where, because of the respondent's repeated and deliberate lies, he had no reliable material relevant to pre-injury earnings apart from about nineteen weeks with Teamfox, and none at all as to post-injury earnings. Although (subject to statutory thresholds) a substantial award for economic loss was justified by the findings as to physical impairment and brain injury, the primary judge was very severely handicapped in assessing the value of that loss because the respondent's lies left him with no reliable material about earnings prior to 1 November 1991 or after 11 March 1992.
66 In my opinion, this required him to assess damages with careful regard to the principle that "evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": Blatch v. Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 per Lord Mansfield. This principle is applied where one party fails to calls evidence which it could have called: Armory v. Delamirie (1722) 1 Stra 505, 93 ER 664; Jones v. Dunkel (1959) 101 CLR 298; Ho v. Powell (2001) 51 NSWLR 572. In my opinion it applies at least equally where the absence of evidence arises from deliberate lies told by a party who is in a position to tell the truth about the matter: I do not think such a party should be in a better position than one who refrains from giving the evidence. Indeed, the principle may operate more strongly in the case of deliberately false evidence than in the case of mere failure to lead evidence: see Wigmore on Evidence (Third Edition) Vol.2, pp.119-127, especially at p.126, Moriarty v. London Chatham & Dover Railway Co. (1897) LR 5 QB 314.
67 In my opinion, what was required in this case was that, within the leeway of uncertainty created by the respondent's lies, the primary judge should have resolved the matter generally in favour of the appellants rather than neutrally: that is, he should have selected a figure towards the lower end of the range available in the absence of reliable evidence.
68 Mr Neil SC for the respondent did not dispute the principle, but submitted that this was in fact what the primary judge had done. He pointed out that $450.00 per week in 1992 was about average weekly earnings, which had risen to about $660.00 at the time of the trial; so that $250.00 per week was only about 38% of average weekly earnings. He submitted also that this type of decision should be altered by an appeal court only in very limited circumstances: Moran v. McMahon (1985) 3 NSWLR 700 at 723.
69 I should mention one other matter. There was some support from Professor Broe for the view that the respondent's tendency to lie was itself a product of the brain damage caused by the accident; and it could be suggested that therefore it should not be weighed against him. However, unless a person has psychological or psychiatric problems so severe as to remove altogether that person's responsibility for conduct, in my opinion the person must be regarded by the law as being responsible for his or her conduct: cf. State of New South Wales v. Gee [2002] NSWCA 326 at [32]. Certainly this is so in criminal law. I do not think the respondent should be relieved from the consequences of his deliberately giving false evidence, and thereby leaving the Court without reliable evidence in relation to matters as to which the onus was squarely on the respondent.
70 Despite Mr Neil's submissions, I am of the opinion that the primary judge did not apply the principle. He did not say he was doing so. In a number of places, he seemed to suggest there was an onus on the appellants in relation to matters relevant to damages (pars.[73], [79] and [151]). The figures he selected seem to me to be around the middle of the wide range made available by reason of the absence of evidence, rather than being towards the lower end of that range. Had the primary judge said he had applied this principle, I would have accepted that he saw the range differently from me, and I would not have interfered with his decision. However, he did not refer to the principle, and I infer he did not apply it.
71 It is for those reasons that I support the decision I indicated at the beginning of this judgment. In my opinion, the changed view as to economic consequences reflects back to some extent into non-economic loss, justifying the adjustments to non-economic loss that I have indicated.
72 For those reasons, in my opinion each appeal should be allowed, and the damages adjusted so as to give effect to the figures I have indicated. The appeals related to liability as well as damages; and subject to further submissions, my tentative view is that the respondent should pay one-half of the appellant's costs in each case and have a suitor's fund certificate if otherwise entitled.
73 Einstein J: Two appeals are presently before the Court.