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[1991] FCA 470
Federal Court of Australia
1991-10-11
Original judgment source is linked above.
Appeal - trial judge's findings of fact - failure to refer to some medical evidence - medical evidence depended on credit of plaintiff - finding strongly adverse to credit - implied judgment as to reliability of medical evidence - whether failure to consider evidence.
Evidence - admissibility - prior conduct - denied in cross-examination - relevant to credit at trial and in histories given to medical practitioners - evidence to rebut denial of conduct - whether proposal to stage fake accident constituted prior inconsistent statement - history and rationale of rule against evidence on collateral matters - whether rule or guide - role of trial judge - practical judgment.
A.A.S. Zuckerman - The Principles of Criminal Evidence - Clarendon (1989)
Ligertwood - Australian Evidence Butterworths (1988)
Australian Law Reform Commission - Interim Report 26 - Evidence Vol. 1 para 409
Australian Law Reform Commission - Report 38 - Evidence para 180(c)
Attorney-General v Hitchcock [1847] EngR 616; (1847) 1 Ex 91; 134 ER 38
Whitbread's Trial (1679) 7 How St Tr 311
Earl of Castlemaine's Trial (1680) 7 How St Tr 1067
Harris v Tippett [1811] EngR 198; (1811) 2 Camp 637; 170 ER 1277
Hobbs v Tinling (1929) 2 KB 1
Toohey v Metropolitan Police Commissioner (1965) AC 595
Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533
R. v Busby (1982) 75 Cr App R 79
R. v Funderburk (1990) 2 All ER 482
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Bakopoulos v General Motors Holden's Ltd [1972] VicRp 85; (1972) VR 732
Collaton v Correll [1926] SAStRp 12; (1926) SASR 87
R v Burke (1858) 8 Cox CC 44
Ready v Brown [1968] HCA 33; (1968) 118 CLR 165
Watt or Thomas v Thomas (1947) AC 484
Counsel for the Applicant: Mr I. Curlewis QC with Mr Crowe
Solicitors for the Applicant: Legal Aid Office (ACT)
Counsel for the Respondent: Mr Poulos QC with Mr S. White
Solicitors for the Respondent: Abbott Tout Russell Kennedy
The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
Mary Natta was born in Greece on 2 July 1952. She migrated to Australia in 1969 at age 16. She has been involved in three traffic accidents, the first on 16 April 1975, the second on 7 June 1984 and the third on 6 September 1987. In September 1978 she was awarded judgment in the sum of $111,000 in respect of injuries sustained in the 1975 accident. The 1984 and 1987 accidents each involved a collision between a vehicle driven by her and another vehicle.
2. In 1987, Ms Natta instituted separate proceedings in the Supreme Court of the Australian Capital Territory claiming damages for personal injury caused by the negligence of the drivers of the other vehicles in the 1984 and 1987 accidents respectively. The first action, number 595 of 1987 related to the 1984 accident and named Elaine Margaret Canham as defendant. The second action, number 1313 of 1987, named Janelle Sharon Smith as defendant. The actions were heard together in the Supreme Court in July and August 1990 and on 10 August 1990 the trial judge gave judgment for the defendant in each matter. Ms Natta appeals against the judgment in 595 of 1987 relating to the 1984 accident.
3. It is only necessary for present purposes to review the findings of the learned trial judge so far as they relate to the 1984 accident. He referred first to Ms Natta's evidence. She had told the Court that on 7 June 1984 she was driving her motor vehicle in Phillip Avenue, Dickson, approaching the intersection of that street with Antill Street where there is a roundabout. She stopped at a give way sign on the roundabout, looked to the right and remained stationary while giving way to traffic coming from her right. She looked in her rear vision mirror and saw a vehicle coming from behind, after which, she said, she felt a bump as that vehicle collided with the rear of her own. She said that the damage to her vehicle cost over $1,000 to repair, although no invoices or other evidence of that damage was produced. She denied the allegation put to her in cross-examination that she had started to move off at the intersection and had then braked suddenly causing the vehicle behind to collide with her. She also denied the suggestion that her vehicle had suffered no damage in the collision. According to Ms Natta the boot had opened and rear lights were broken by the force of the impact.
4. His Honour also considered evidence given by Poly Koulouris who was travelling in Ms Natta's vehicle at the time of the collision. She was in the front passenger seat and her infant daughter was asleep in the back. She remembered the car stopping at the intersection and then hearing a "really strong noise" and feeling a strong impact. She looked around and saw that her daughter had been thrown to a position between the two front seats and that there was another vehicle at the rear of Ms Natta's car. She said her daughter's nose was bleeding at the time. She could not recall how much damage had been suffered by either car because of her concern for her daughter. She denied that Ms Natta's vehicle had moved off before the collision and then stopped again. She also denied a suggestion that her daughter had been standing up in the car at the time of the accident.
5. The judgment went on to deal with the testimony of Ms Canham who, immediately prior to the accident, had been driving north in Phillip Avenue in her white Toyota Crown sedan. As she approached the intersection with Antell Street there was a car in front of her and two or three travelling towards the intersection from right to left. When the cross traffic had passed, the car in front of her moved off. She followed suit, but it stopped suddenly and she collided with its rear. She remembered a child standing in the middle of the car with her elbows on the two front seats. When the collision occurred the child went forward and then back but did not fall over. According to Ms Canham the vehicle with which she collided had travelled five to ten feet at most and had just got into the roundabout when it stopped. She described damage to her own vehicle which was greater than the damage to the other car. When she inquired about the child, Ms Natta told her that everything was alright.
6. There was only brief reference to medical evidence in the case. The learned trial judge found that Ms Natta first consulted her general practitioner, Dr. Lai, about a fortnight after the accident on 20 June 1984. She complained about injuries sustained in the accident and Dr. Lai diagnosed soft tissue injury. His Honour also adverted to a consultation on 17 September 1986 with a neurologist, Dr. R.L.G. Newcombe, to whom Ms Natta had been referred by her then general practitioner, Dr. Margaret Costin. She gave a history to Dr. Newcombe that she had been involved in a rear impact collision and that at first she had seemed uninjured but that two or three days later she had felt pain in the neck and right shoulder. She had complained of continued low back pain and right lower leg pain extending down the back of the leg to the front, especially on walking. His Honour then turned to the evidence of Mr Steve Giakoumelos, called as a witness for the respondent. Mr Giakoumelos had met Ms Natta at the beginning of 1983 and struck up a friendship with her which became a close and steady relationship. She was then working casually at the Hellenic Club in Phillip. Giakoumelos used to take her there for work and pick her up afterwards. Subsequently, she took up a job in Queanbeyan and in January 1984 started work at Eliza's restaurant at Hawker. Giakoumelos gave evidence that he used to take her to work each night at about 5pm and bring her home when she finished work about midnight. That happened every night from Tuesday to Saturday of each week for two and a half months. One night, according to Giakoumelos, he found her in bed at home in a bad condition. She told him that she had had a fall in the restaurant kitchen, but refused his advice that she go to the hospital for medical treatment. She told him that she could not claim workers compensation because she was on a pension and being paid in cash at the restaurant. She suggested to him that there was a means of making money easily. She proposed that he buy a very old car and that they stage an accident. In that way she could make "quick money" which they could share. He rejected the proposal and their relationship ceased in about the second week of March 1984. Concerning this evidence his Honour made the following finding:
"I accept Giakoumelos as a reliable and truthful
witness. I have taken into account that he bears some
antipothy (sic) to the plaintiff arising out of the
circumstances in which their relationship ceased and
that he believes that she owes him money which she
refuses to pay. Nevertheless, he gave his evidence in
a straightforward way and I propose to accept it in
full. That evidence supports the submission on the
part of the defendant in the first accident that it
was a very minor accident and inherently unlikely to
have given rise to the plaintiff's claims of
aggravation of cervical spondylosis and aggravation of
lumbar canal stenosis."
His Honour explicitly linked his assessment of the force of the accident to Ms Natta's credibility. He observed that she gave her evidence-in-chief in English but for a great deal of her cross-examination sought the assistance of an interpreter. He noted that she had lived in Australia for 21 years and that such of her answers as were given in English demonstrated a reasonable command of the language. He allowed for the fact that a consideration of her credibility was made more difficult by her use of an interpreter, but concluded that she was a poor witness. He summed up his finding as to her credibility in these words:
"She was evasive and generally cunning in demeanour,
often answered a question by asking another question
back, and was completely unconvincing. She was not
prepared to make any concession whatever which she
perceived to be in any way detrimental to her case."
His Honour found that Ms Canham was negligent, but accepted her account of the accident in preference to that given by Ms Natta. And having regard to all the evidence, including that of the defendant, whom he accepted as a witness of truth, he concluded:
"...that the 1984 accident was a very minor collision
not likely to give rise to any incapacitating symptoms
for the plaintiff, and further that it did not give
rise to the injuries claimed."
7. The appeal is brought on the following grounds as amended at the commencement of the appellant's argument:
1. That his Honour erred in finding that the plaintiff did
not suffer any injury as a result of the motor vehicle
collision.
2. That there was no evidence to support his Honour's
finding that the plaintiff did not suffer any injury in
the collision.
3. That there was no evidence to support his Honour's
finding that the impact was such as to be unlikely to
give rise to any incapacitating symptoms in the plaintiff.
4. That his Honour was in error in holding (to the extent
that he did so hold) that for the plaintiff to recover
damages for personal injury due to the defendant's
negligence she had to suffer incapacitating symptoms.
5. That there was no evidence to support His Honour's
finding that the plaintiff did not consult Dr. Lai until
20 June 1984.
6. That his Honour erred in concluding that the evidence of
Mr Giakoumelos supported the submission that the accident
was a very minor one inherently unlikely to have given
rise to the aggravation of cervical spondylosis and
lumbar canal stenosis in the plaintiff.
7. That in finding the plaintiff had suffered no injuries as
the result of the collision, his Honour failed to have
regard to the evidence of the plaintiff's pre-existing
physical and psychological condition.
8. That his Honour erred in admitting the evidence of Mr
Giakoumelos as to the alleged proposal by the plaintiff
to stage an accident.
8. Ms Natta's counsel did not attack the learned trial judge's findings of fact about the events giving rise to the collision. The argument proceeded upon the basis that her vehicle had been stationary at the intersection of Phillip Avenue and Antell Street, that it began to move off, stopped again after travelling 5 to 10 feet, and that Ms Canham's vehicle which had been stationary behind it moved forward and collided with it when it stopped. What was in issue was his Honour's finding that the accident was "....not likely to give rise to any incapacitating symptoms for (Ms Natta), and further that it did not give rise to the injuries claimed".
9. Even allowing for his Honour's view that Ms Natta was not a credible witness, there was, it was said, a body of evidence, not dependent upon her credibility, which supported the inference that on the balance of probabilities the accident did cause compensable injuries. The evidence in question was identified as that of the medical witnesses and Mrs Koulouris. The finding that the evidence of Giakoumelos supported the submission that the accident was very minor and inherently unlikely to have given rise to an aggravation of spondylosis or lumbar canal stenosis was attacked essentially as a non-sequitur. As it related to her conduct in 1986 and 1987 it was said to have no bearing upon the nature of the collision in 1984 and whether she suffered the injuries complained of as a result of that collision.
10. The admission of evidence of Giakoumelos that Ms Natta had proposed to him in 1984 and 1986 that they stage an accident and share the proceeds was attacked as collateral, relating only to credit and not to any matter in issue in the proceedings.
11. To put Giakoumelos' evidence into its proper context, it is necessary to review first what Ms Natta said that bore upon it. She was asked in cross-examination by Counsel for Ms Canham whether she knew a Steve Giakoumelos. She agreed she did and that he was present in Court. She said she knew him "from 1987". It was put to her that she had met him in 1983 but she denied this, saying he was her neighbour in flats at Kirkmeyer Court in Turner after 1987 or 1988. When it was put to her again that she knew him in 1983, she said that there was a difference between knowing somebody and knowing of them. She went on to say that she "may have known of him from the seventies". When it was suggested that they became good friends in 1983 she denied that she knew him then. She also denied that he visited her in hospital at that time. She said that she had got to know him in 1987 and they fell out because she had asked him for money as he had run up an account of $500.00 using her telephone to make calls to Greece.
12. She agreed that in January 1984 she had been employed at Eliza's restaurant but denied that Giakoumelos used to drive her to and from work. She denied that she had fallen at the restaurant and injured her back. It was put to her that Giakoumelos had told her that he was going to get a doctor to see her and that she had refused to have one to her flat. She said, however, that she did not even know him. She denied allegations that she had asked Giakoumelos on a number of occasions to enter into a fraudulent arrangement with her to fake an accident. One such allegation was that she and Giakoumelos had renewed their relationship in December 1986 when they had started to see each other almost every night and that she had then once more suggested that he buy a car and run into the back of her car. It was also put to her that in 1987, although she would carry a walking-stick and wear a neck collar in public, when she came home she would lock the door, pull down the blinds, take off the collar, put away the stick, and act normally. As to that, she said she did not use her stick around the house and could not keep the collar on day and night.
13. Giakoumelos told the Court that he had met Ms Natta at the beginning of 1983 and after a couple of months had struck up a friendship with her and began seeing her every night. He remembered that she was in and out of hospital on a number of occasions that year and that she said that she had received money from a compensation claim. Sometime during the year she began working casually at the Hellenic Club but the work was heavy and the money not good so she left. After leaving the Hellenic Club she had obtained temporary employment at an ice shop in Queanbeyan but left because she did not like the low temperatures. At the beginning of January 1984 she started working at Eliza's restaurant in Hawker. Giakoumelos drove her to work each day at 5pm and brought her home at about midnight. He was asked, over objection, about conversations with Ms Natta relating to a fall at Eliza's restaurant and the alleged suggestion that they contrive a motor vehicle accident on which she could claim. His Honour allowed the line of questioning to proceed holding that it related to the subject matter of the proceedings and that if the evidence sought to be led was forthcoming, it would be inconsistent with Ms Natta's earlier testimony. He was satisfied that she had been informed of sufficient of the circumstances of the making of the statement to identify the occasion referred to and that she had flatly denied making any statements to Giakoumelos in relation to an accident at Eliza's restaurant in or about February 1984.
14. Giakoumelos' evidence on that issue was that on an occasion in February 1984, he was on his way to pick Ms Natta up from the restaurant when he noticed that the light was on in her flat. He went in and saw her lying in bed "very much in pain". She told him she had fallen on the floor of the kitchen at the restaurant. He offered to take her to the hospital but she would not go. He continued to visit her every night and on most occasions found her in bed complaining that she had hurt her back very badly. He said she could not move for at least a week and had to have a woman in to look after her. She repeatedly refused to allow him to take her to hospital. They had some conversations about the possibility of making a claim against the restaurant but she said she could not as "she was not officially working there". She was in receipt of "the unemployed sickness benefit and she could not do that". He then recounted a conversation with her in the following terms:
"...she start to talk to me to make easy money quick
and I did not know what she talking about. I said
"What do you want?" She said, "If you buy a car, a
very old car, and you drive the car and hit me, we
make quick money." She tell me about four or five
times, and I said "That no want with me. I don't want
to do business."
"...she want me to buy old car and we drive together
and hit in the back, or somewhere in the car, so she
go into the hospital and tell to the doctor she had
the accident through the back actually she had from
the car accident."
Giakoumelos went on to say that he stopped seeing Ms Natta in the second week of March 1984 and did not see her again until December 1986.
15. In December 1986 Giakoumelos was working for Canberra Mitsubishi and living in Block 6 of a flat development called Condamine Court. It turned out that Ms.Natta was living in Block 5. They renewed their relationship and he started to see her again every night. He said that whenever she went out of doors she wore a neck collar and carried a walking stick. However, when she got home she would pull down the venetian blinds, take off her collar and dispense with the stick and move about normally. On one occasion he had opened her door when somebody knocked. She had become upset and told him not to open the door like that as she had to be able to prepare herself. Asked how she behaved when people visited, Giakoumelos said:
"...if nobody was there she was very normal woman. If
somebody come in and knock the door she was a sick woman."
She went to Sydney for about 6 weeks from June 1987 and on her return, according to Giakoumelos, she again raised the suggestion of buying a car and staging an accident. He said:
"But I did not want any more, so I left the place and I
did not see her any more."
16. Having regard to the strongly adverse view formed by his Honour of Ms Natta's credibility, his acceptance of the evidence of Mr Giakoumelos and the conclusions he drew from that evidence, and in light of the submissions on the appeal, it is appropriate to consider the extent to which other evidence in the case bore upon the question whether the injuries claimed, or any of them, were suffered and if so were a result of the 1984 accident. In this connection brief reference may be made to the evidence of Ms Koulouris. His Honour did not make any explicit findings as to its reliability, although it is clear that he did not accept her version of the accident in so far as it suggested a strong impact or that Ms Natta's car had not begun to move when the collision occurred. Ms Natta had said in her evidence that Ms Canham's vehicle was travelling "very fast" when it collided with her, that it made her car "jump forward" and that she had said "My God, my back's gone again". She claimed that Ms Koulouris broke her spectacles and was bleeding from the face and that she was afraid for her. Ms Koulouris denied that she had suffered injury and could not remember breaking any spectacles. She normally only wore sunglasses. She recalled Ms Natta saying after the accident, "Oh my goodness what happened" although she could not be sure of that. She was confused and in shock at the time. She remembered that Ms Natta had got out of the car and spoken with the driver of the other vehicle. According to Ms Natta, however, Ms Canham had not spoken with her but was "simply crying and holding her head". Ms Canham's evidence was that, following the collision, Ms Natta got out of her car. She asked Ms Natta if the child was alright and was told "yes, yes, everything is alright". The child was sitting in the back of the car and appeared to be fine. Ms Canham then called the police and had no further conversation with Ms Natta. Ms Koulouris gave no evidence of any complaint of pain by Ms Natta at the time of the accident but said that Ms Natta had started to complain about her neck and back after going home. She did not recall any complaint of pain prior to the accident.
17. The medical evidence also falls to be considered in the context of his Honour's finding about the magnitude of the collision and his general rejection of Ms Natta's testimony. To the extent that the conclusions and opinions of medical practitioners called as witnesses in this case depended upon histories given by Ms Natta, then they are affected by the unequivocal finding as to her credibility.
18. The medical evidence at trial necessarily went to the effects of the 1975 accident as well as the accidents which were the subject of the proceedings. Ms Natta said that as a result of the 1975 accident she had suffered substantial injury to her left leg and knee, to her lower back and to her head. One of the first specialists to see her following that accident was Dr. Reginald Kitchin, an orthopaedic surgeon, who treated her from 1975 to 1983. He reported on 17 June 1975 that she had suffered a fracture of the upper tibial plateau of the left leg with involvement of the knee joint and that open reduction and internal fixation of the fracture were carried out. The fracture united but he concluded that Ms Natta would suffer permanent residual disability. She was seen by a Dr. Sturrock in August 1975. He recorded a complaint of back injury in addition to the left knee, face, eye and hand injuries. She referred her back injury to "a rather diffuse area across the lumbar region and complained of tenderness to pressure in this wide area". Nevertheless, he noted her movements appeared to be carried out through a normal range. X-rays of the lumbar spine proved to be "perfectly normal" and he saw "no evidence of any injury to the spine". When he reviewed Ms Natta in May 1976, Dr. Sturrock reported that she complained of back soreness extending over a wide area from the lumbar region up to the base of the neck. He observed that when asked to flex her spine she did so only through a fairly restricted range of movement. He had no doubt, however, that the restriction was voluntary and not due to any organic disability. While he could find no abnormality in relation to her back, he was quite sure that if she were walking in a better fashion her back would become quite comfortable.
19. When reviewed by Dr. Kitchin in 1976, Ms Natta was complaining of pain and limited movement in her knee. He expressed the opinion that there was a post-traumatic disturbance of the knee joint in the lateral compartment. On 3 March 1977 he operated on the knee, but concluded on 22 August that she was still significantly handicapped and would require further treatment in the future.
20. In October 1977 Ms Natta consulted a Dr. Corry and told him of her accident and injuries. She complained of low back pain which she said was present all day. She also complained of neck stiffness and pain with numbness down the outside of her left arm. She said she was suffering from depression. Dr. Corry described her as "an extremely depressed young woman". He noted that her cervical spine had a full range of movement but that low lumbar spine movement was restricted in all directions. He reported that she had major disabilities following her accident which were:
1. arthritis in her knee joint causing pain, limitation of
movement, noises and instability of the leg;
2. post concussive vertigo and headaches;
3. pain in the lower back, the exact aetiology of which
could not be determined without further investigation;
4. severe depression.
21. In a further review carried out by Dr. Kitchin on 29 August 1978, Ms Natta again complained of painful limitation of knee movement requiring her to use a walking stick, headaches, left arm pain and backache. Examination of the lumbar spine showed it to be freely mobile. Dr. Kitchin could find no abnormality in this area and suspected that the backache was related to her use of a walking aid. She was, however, suffering a secondary degenerative arthritis in her left knee which would probably deteriorate. Late in 1978, Ms Natta applied for and was granted the invalid pension. As already mentioned, she was awarded damages of $111,000 in the Supreme Court of the Australian Capital Territory in September 1978. In 1980 she went to Greece, returning late in 1982. At the time of her return to Australia she was pregnant. The child died shortly after it was born, early in 1983. The father, who evidently lived in Greece, did not come to Australia or maintain any relationship with her. She had consulted Dr. C. Lai, a general practitioner, in connection with her pregnancy in October 1982. At a consultation on 3 December 1982 she told him of the motor vehicle accident and her knee operation. When she saw him in January 1983, she had complained of low back pain, painful leg and recurrent headaches. He referred her to Dr. Kitchin in April 1983. X-rays of her lumbo-sacral spine showed a slight retrolisthesis and narrowing of the lumbo-sacral disc. Dr. Kitchin arranged for a radiculogram test to be carried out at Canberra Hospital. This showed "a prominent bulge at the lumbo-sacral junction which appeared to be a stenosis of the bony canal, or possible disc protrusion". On 20 May 1983 Ms Natta underwent a laminectomy at L5.S1. There was no protrusion and the operation was limited to a decompression at lumbo-sacral level.
22. From 25 July 1983 to 22 August 1983 she was admitted to the Woden Valley Hospital complaining of depression, chronic headache and low back and left knee pains. She was readmitted on 9 September 1983 for "severe reactive depression and self mutilation" and is said to have attempted suicide in the ward. On 14 and 15 September she cut her wrists. She was transferred to Kenmore, a psychiatric facility and returned to the hospital on 4 October 1983. On 10 October, complaints were again recorded of pain in the lumbar region, the back and the neck. On 13 October she again cut both her wrists. There were additional wrist cutting episodes to follow. On 8 December 1983, Ms Natta was discharged from hospital. It appears from questions put without objection in cross-examination, that she was under care as an outpatient at Kenmore until early in March 1984. At that time, according to a discharge summary quoted by counsel, she complained of constant pain in her head, back and knee which was unrelieved by ordinary analgesics. (AB 200, 207 and 257)
23. There was some debate about the date upon which Ms Natta first sought medical help following the accident. She said she thought Dr. Lai, a general practitioner who had been treating her since 1982, came to her home either on the night of the accident or on the following day. Dr. Lai said in his evidence-in-chief that Ms Natta saw him on 20 June 1984 (some 13 days after the accident). He had no written record of a visit to her home on 7 or 8 June, but went on to say:
"I do not have any written record of that visit. But
on recollection I remember going to see her in her
house now. I probably have seen her in her house
previously as well. Where there is specific motor car
accident I cannot swear by it but I feel that I have
seen her at home after the accident."
His written report indicated that she had consulted him on 20 June and 18 July. He said she complained of backache and an aching right knee. Dr. Lai considered that she had suffered soft tissue damage and expected that she would make a good recovery.
24. On 27 August 1984, Dr. Kitchin wrote to a Dr. Giallussi in Sydney indicating that Ms Natta was then moving to Sydney and had requested that a copy of her case notes be forwarded. By April 1985, however, she had returned to Canberra and was consulting a general practitioner, Dr. Margaret Costin. Consultations with Dr. Costin continued at least until 10 April 1990 when the doctor's clinical notes, as received in evidence, cease. From 10 May 1985, Ms Natta was admitted to Calvary Hospital for 6 weeks. She was seen there by Dr. Tony Lee, a consultant psychiatrist who noted, inter alia, her complaint that after the 1984 accident, she felt pain in the neck radiating to her right shoulder with inability to flex her head to the left without pain and limitation of movement. He diagnosed schizo-affective illness and chronic pain syndrome. Dr. Lee in his report concluded that she had been unable to cope with "life circumstances after the 1975 accident". It was probable, he said, that the 1984 accident "further decompensated her already fragile mental equilibrium and caused additional physical problems in her neck and upper limbs". She was said to be psychotic in her mental state and undergoing "latent disintegration of her personality structure". And in a report written on 3 July 1990, Dr. Lee said that Ms Natta's condition had stagnated since 1986 with very little change except that she believed it was getting worse. He referred to the 1987 accident and concluded that it had "exacerbated all her previous symptoms".
25. Dr. Lee was cross-examined about the extent of his knowledge of Ms Natta's condition prior to her 1984 accident. A description of her complaints and the history of attempted suicides in 1983 was put to him and he agreed that the picture so presented would not have differed much from that in 1985. He accepted also that when expressing his opinion about the effects of the 1984 accident upon her mental and physical condition, he acted on assumptions about her condition prior to that time based upon the history she had given him. On the assumption that from 1977 to 1984 she had complained of serious and continuing headaches, severe low back pain, leading to operative treatment in 1983, severe neck pain and pain in the knee and other parts of her body, it was suggested to him that this was the same picture she was presenting when he saw her. He agreed with that proposition. It was also put to Dr. Lee that if the complaints prior to the 1984 accident were as suggested by counsel, it would not be possible to say that Ms Natta's physical problems had increased after the accident. He agreed, saying it would be hard to draw a distinction between the pre and post-accident states. He went on, however, to say that a distinction could be made with respect to her mental state which had become "perhaps a little bit worse than it was at that time". It was suggested that on the history put to him, Ms Natta clearly had severe problems prior to 1984 and that under those circumstances he would not be in any position to suggest that there was any difference between the way she appeared subsequently and the way she was prior to 1984. He said he thought that would be reasonable.
26. Dr. Kitchin saw Ms Natta again in July 1985 when she complained of low back and left lower limb pain and neck and arm pain of one year's duration. He reported to her general practitioner, Dr. Costin, that she was obviously in a more depressive state than he had ever seen her. Her cervical spine movements were all voluntarily reduced. Straight leg elevation produced low back pain with hypoaesthesiae of the left calf. X-rays of the cervical spine taken in May 1985 showed no reduction in disc spaces but very early signs of spondylosis. He proposed to Ms Natta that she undergo cervical traction and physiotherapy for her neck and that she wear a lumbo-sacral corset. These proposals were accepted, but an arthrodesis of the left knee was declined. At this time Dr. Kitchin was not aware of the 1984 accident. He had made no record of it in his notes and he was "pretty sure" he would have done so if it had been brought to his attention (AB 202). Cross-examined about the success of the 1983 laminectomy operation, he accepted that if, as appeared to be the case, Ms Natta was still complaining of unrelieved back pain in March 1984 it would suggest a less than successful outcome (AB 200). He went further and observed that if she had said what was attributed to her in the Kenmore discharge notes, then the operation "had not done her any good". On the other hand, when it was put in re-examination that she had been able to return to some casual employment after the operation which she could not undertake beforehand, he said that one would reasonably say that she had some benefit from the laminectomy.
27. Evidence was also adduced from a specialist neurologist, Dr. Raymond Newcombe. He first saw Ms Natta on 17 September 1986 at the request of Dr. Costin. By way of history she told him, among other things, of the 1975 accident and that she had been involved in a rear impact collision in June 1984. She reported that at first she had seemed uninjured but two or three days later she felt pain in the neck and right shoulder. There was also continued back pain and she developed right lower leg pain extending down the back of the leg to the foot especially on walking. Dr. Newcombe examined her and observed that she held her head tilted forward towards the left and was unable to flex her left knee for more than a few degrees. Straight leg raising was full in range and there were no sensory motor or reflex changes as is usual in lumbar canal stenosis. After referring to the results of X-rays and scans of the cervical spine, he expressed the opinion that Ms Natta was suffering from a previously asymptomatic cervical spondylosis aggravated following the injury of June 1984. He also concluded that she had suffered from aggravation of lumbar canal stenosis consequent upon the earlier lumbar disc protrusion with disc space narrowing. Dr. Newcombe reviewed Ms Natta in February 1987 when he thought she seemed improved, but on 15 April observed that her anxiety and depression were prominent. She had many somatic complaints which appeared to be mainly a reflection of her psychiatric state. In August 1987 there was continued right sided neck pain radiating down the right arm to the thumb. She said she suffered low back pain in the morning and some pain in the region of an old knee operation. A CT scan showed no definite disc space narrowing but the symptoms suggested nerve root compression. On 30 September and following her third motor vehicle accident, Dr. Newcombe reported that a Magnetic Resonance scan of Ms Natta's cervical spine confirmed that the bones and joints of the spine were normal and that there was no pressure on nerve roots or spinal cord. He saw her again in March and December 1988. In September 1988 a myelogram had been carried out which he said showed intervertebral disc lesions at C5-6 and C6-7 levels with deformity of the nerve root pouch at C6-7 level on the right. The latter seemed most likely to be the source of her symptoms. Dr. Newcombe expressed the opinion in a report of 6 March 1989 that the intervertebral lesions were the result of the 1984 accident and had been aggravated by the 1987 accident. An operation was undertaken at Canberra Hospital on 23 January 1989. Disc excision over the ruptured disc at C607 level was done followed by anterior interbody fusion. Reviewed on 28 February 1989 she was still complaining of pain at the back of the neck and arms and of some low back pain. Dr. Newcombe encouraged her to be as mobile as possible and to undertake what activities she could. He considered her rehabilitation into the work force improbable and thought it likely that there would be continued complaints of pain and disability. Her symptom complex was partly organic and partly of psychological origin. He repeated that the accident of June 1984 had tended to aggravate her lower back problems and that there was further aggravation in the accident which occurred in September 1987 (AB 396-397).
28. In a further report dated 11 January 1990, Dr. Newcombe said that any distinction between the injuries of 1975 and 1984 was dependent upon the history which Ms Natta had given him. He referred in particular to her account of right lower limb pain not commencing until after the 1984 accident. He had interpreted that as sciatica and aggravation of cervical and lumbar spondylosis (398). As appeared from cross-examination, however, he had only limited information about the 1975 accident and agreed with counsel, who put to him the nature of the injuries sustained on that occasion, that such a history would be consistent with the development of problems in the cervical area at that time (228). He accepted that if Ms Natta's neck problem had been symptomatic prior to the 1984 accident then in the absence of information as to the extent of the pre-existing problem he would be unable to say whether the accident had any impact on it. He also said in evidence that he had assumed that accident was "... of some magnitude, that is involved significant trauma" and that if that were not the case it would affect any conclusion based upon the accident (230). Dr. Newcombe was unaware of the extent of the history of psychiatric admissions and suicidal behaviour and was also unaware that as at July 1983 Ms Natta was giving a history of unremitting headaches, back pain and of hearing noises. Had he been aware of those things he said, he would have regarded her history with caution (231). He accepted that on the basis of the pre-1984 psychiatric history and the physical history set out by counsel, there did not appear to have been aggravation of her psychological condition or cervical problems attributable to the 1984 accident.
29. Dr. Hugh Veness, a consultant psychiatrist, saw Ms Natta on 15 May 1990. Apart from information gathered from that consultation, he had access to some earlier medical reports and discharge summaries from the Woden Valley Hospital and the clinical records from Royal Canberra Hospital. He referred in his report to the 1984 accident, describing it in the following terms:
"Her car received considerable damage and was hurled
some distance, indicating the severity of the impact."
He concluded that by reason of the accident she had received serious injuries to her spine and that since then her life had been characterised by severe pain, disability, multiple operations, medical treatment of various kinds, severe depression, gross loss of self esteem, loneliness and isolation. He referred also to the "severe stresses to which she had been subjected as a result of the 1984 accident" and spoke of these as having greatly contributed to the frequency and severity of her episodes of psychotic depression. It was no exaggeration to say that her life had been shattered by the accident and its aftermath. Dr. Veness agreed in cross-examination that Ms Natta sought to attribute her problems substantially to the 1984 accident and to some extent to that which had occurred in 1987. Cross-examined on aspects of the history to which he had not had access, Dr. Veness nevertheless maintained the general thrust of the conclusions set out in his report. Even on the assumption that the 1984 and 1987 accidents had not made much difference to Ms Natta's pain or disability, there was still the emotional factor of yet another accident. In the case of a person with her vulnerability to depression, he thought they would have substantially contributed to her current mental state.
30. Dr. Francis Keiller, who described his specialty as "medico legal matters", saw Ms Natta on 27 April 1990. He commented that she appeared grossly depressed and that it was almost impossible to get a consistent history. The 1984 accident was described in his report as one in which she was the driver of a car hit from behind by another vehicle "travelling very very fast". He considered that there was aggravation of her symptoms of low back pain caused by both the 1984 and 1987 accidents. He agreed in cross-examination that if she had complained of neck pain before the 1984 accident that would significantly affect his attribution of her neck problems to that event (125). He agreed also that the impact of a car travelling at about 5 kilometres per hour or something of that order would represent "a fairly minimal trauma". He had assumed that the onset of cervical problems followed that accident.
31. The preceding outline sets out salient features of the bulk of the medical evidence given at trial, although it does not purport to be exhaustive. As his Honour's view of the reliability of that evidence was determined in large part by his assessment of Ms Natta's credibility, and since the evidence of Giakoumelos played a part in that assessment, it is desirable to consider questions of its admissibility as a threshold issue.
Whether Evidence of Proposals to Stage an Accident Was Wrongly Admitted
32. The substance of the evidence which Giakoumelos was to give as part of the defence case was put to Ms Natta in cross-examination. She denied having suffered a fall while working at Eliza's Restaurant and that she had injured her back and been confined to bed for a number of weeks. She denied also the allegation that she had proposed that Giakoumelos assist her in staging a rear end motor vehicle collision with a view to splitting the proceeds of any subsequent claim.
33. When counsel for Ms Canham sought to lead evidence of these conversations from Giakoumelos, objection was taken on the basis that they could only go to credit and that evidence was not admissible to rebut Ms Natta's answers going only to that issue. So far as the conversation related to the fall at Eliza's Restaurant, his Honour thought it admissible on a number of bases, including the issue of damages flowing from the 1984 accident and, under s.61 of the Evidence Ordinance 1971 (ACT) as evidence of prior inconsistent statements which had been denied by Ms Natta (356-357). The ground of appeal relating to the admissibility of Giakoumelos' evidence however, is confined to so much of his testimony as concerned Ms Natta's alleged proposals in 1984 and 1987 that they stage a rear end collision so that they might share in the proceeds of a subsequent claim for damages for personal injury. Separate and specific objection was taken to that evidence on the ground that it went to no other issue but credit, there being no question of a fraudulent claim raised in the case.
34. His Honour's reasons for ruling against the objection emerged in the course of his discussion with counsel. He took the view that if the plaintiff had previously made a statement which she did not admit in court whether the statement went to credit or some other issue, evidence could be given that it had been made. For this his Honour invoked s.62 of the Ordinance although it seems he intended to refer to s.61 (360-361). Section 61 of the Evidence Ordinance 1971 (ACT) provides as follows:
"61(1) Subject to the next succeeding sub-section, where a
witness, upon cross-examination concerning a statement alleged
to have been made by him relating to the subject-matter of the
proceedings and inconsistent with his evidence, does not admit
that he made the statement, evidence of the making of the
statement is admissible.
(2) Evidence of the making by a witness of a statement
referred to in the last preceding sub-section is not
admissible unless the witness has been informed of sufficient
of the circumstances of the making of the statement to identify
the occasion on which the statement was made and has been asked
whether he made the statement."
It is doubtful that the preceding section applied at all to Giakoumelos' evidence concerning the proposals to stage an accident. The section operates to permit evidence to be adduced of the making of a statement which is inconsistent with the witness's testimony in court. The inconsistency contemplated would relate to the content of the statement on the one hand and that of the testimony on the other. In this case, Giakoumelos' evidence that Ms Natta had proposed they stage an accident contradicted her denial that she had made any such suggestion. In effect she was being cross-examined as to prior discreditable conduct and upon her denial it was sought to prove the conduct through another witness. In determining whether that evidence was admissible it is necessary to travel beyond the statutory framework to the common law rules relating to evidence going to matters of credit.
35. It is a long standing principle of the common law not always observed in practice that, save for certain exceptional cases, evidence cannot be adduced to contradict the denials of a witness in cross-examination on matters going to "collateral issues" affecting credit only. In Attorney-General v Hitchcock [1847] EngR 616; (1847) 1 Ex 91; 154 ER 38, Pollock CB proposed that an issue is not collateral as going only to credit if the cross examining party would have been entitled to call evidence on it in any event. This is another way of saying that relevance to an issue other than credit is a necessary condition of admissibility. Alderson B. in the same case propounded substantially the same test explaining its rationale as follows:
"The inadmissibility of such a contradiction depends, indeed,
upon another principle altogether. Perhaps it ought to be
received, but for the inconvenience that would arise from the
witness being called upon to answer to particular acts of his
life, which he might have been able to explain, if he had had
reasonable notice to do so, and to have shewn that all the acts
of his life had been perfectly correct and pure, although other
witnesses were called to prove the contrary. The reason why a
party is obliged to take the answer of a witness is, that if he
were permitted to go into it, it is only justice to allow the
witness to call other evidence in support of the testimony he
has given, and as those witnesses might be cross-examined as
to their conduct, such a course would be productive of endless
collateral issues." (103-104)
Rolfe B. saw the rule as "founded on a sort of comparative consideration of the time to be occupied in examinations of this nature, and the time which it is practicable to bestow upon them". The traditional exceptions to the rule permit evidence to be received to rebut denials in cross-examination of bias on the part of the witness, corruption, a reputation for untruthfulness and medical or physical disability. Proof of prior convictions denied in cross-examination was first permitted by statute in the Criminal Procedure Act 1865 (UK) and is reflected in various Australian State laws, but not in New South Wales, the Northern Territory or the Australian Capital Territory. The untruthfulness exception is modified in the Australian Capital Territory by s.56 of the Evidence Ordinance 1971.
36. The use of such exclusionary rules as a means of imposing practical limits on the litigation process considerably antedates the Hitchcock case. In Whitbread's Trial (1679) 7 How St Tr 311, North L.C.J. asked, in this context, whether a witness was to come to court "prepared to make good everything that he hath said in his life" - see also Earl of Castlemaine's Trial (1680) 7 How St Tr 1067 at 1081 and 1107. Lawrence J. in Harris v Tippett [1811] EngR 198; (1811) 2 Camp 637; 170 ER 1277, refused to allow evidence to be called to contradict a defence witness who had denied attempting to dissuade one of the plaintiff's witnesses from attending at trial. No witness, it was said, can be prepared to support his character as to particular facts "and such collateral inquiries would lead to endless confusion". The case management rationale has persisted. It was the possibility of involving the court in "an interminable series of controversies not directly material to the case on alleged facts of which the witness had no notice when he came into court" that was invoked by Scrutton L.J. in Hobbs v Tinling (1929) 2 KB 1 at 18. And Lord Pearce in Toohey v Metropolitan Police Commissioner (1965) AC 595 described the competing policy considerations underlying the approach of older authorities to the investigation of the credit of witnesses in jury cases as follows (Lords Reid, Morris, Hodson and Donovan agreeing):
"On the one hand, the courts have sought to prevent
juries from being beguiled by evidence of witnesses
who could be shown to be, through defect of character,
wholly unworthy of belief. On the other hand,
however, they have sought to prevent the trial of a
case becoming clogged with a number of side issues,
such as might arise if there could be an investigation
of matters which had no relevance to the issue save in
so far as they tended to show the veracity or falsity
of the witness who was giving evidence which was
relevant to the issue. Many controversies which might
thus obliquely throw some light on the issues must in
practice be discarded because there is not an infinity
of time, money and mental comprehension available to
make use of them." (at 607)
The exclusionary principle was applied by the High Court in Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 in a context in which the application of the rule was in dispute rather than its content. A witness for the plaintiff in an action for damages for personal injuries arising out of a motor vehicle accident gave evidence that he had seen the accident and in cross-examination said that at the time he was returning from a banking errand for a man called Jarvie. Counsel for the defence sought to lead evidence from the bank manager that there had been no operation on Jarvie's account on the day of the accident. By a three-two majority, the court held the evidence to be inadmissible. Dixon J. so concluded on the basis that it proved only that on the day of the accident the witness had not operated on the account and tended to discredit the account given under cross-examination of his movements prior to the accident. It had no natural tendency to show that he was absent from the scene of the accident:
"The tendency to discredit him may make the question of
the admissibility of the evidence important, but it
does not make the evidence admissible." (at 553)
Evatt J. also regarded the evidence as inadmissible. There was, in his opinion, no logical relevance between the question of the witness's absence or presence at the scene of the accident which could be proven and the fact sought to be shown, namely his absence from a different place at a different time of that day. The evidence of the bank manager went merely to prove that the witness's memory or credibility was not to be relied upon and except under very special conditions, which did not exist in that case, evidence in direct contradiction was not admissible for such a purpose. (560) Evatt J., however, took a more liberal approach to the governing principle than did Dixon J. He allowed the possibility that the witness of an accident could explain his presence at the scene by reference to some closely related incident of a special character. Evidence to contradict such incident and explanation could be admitted upon the ground that the presence of the witness at the accident was a fact in issue not reasonably able to be dissociated from the incident by which his presence is explained (558). And at 559 he said:
"...evidence in contradiction becomes irrelevant and
inadmissible at the very point where the relation of
such evidence to the one fact which is sought to be
contradicted ... becomes too remote and attenuated.
Remoteness, like relevance, involves considerations of
degree. But the trial judge must exclude such
evidence in contradiction at the very point where the
relationship has become too remote."
This approach has been fairly characterised as embodying a test of sufficient relevance to determine whether a matter is to be pursued beyond cross-examination - Ligertwood - Australian Evidence Butterworths (1988) at para 7.78.
37. McTiernan J. accepted that the evidence which had been admitted could discredit the witness but held that it was incapable of contradicting any fact upon which the proof of his opportunity of observing the accident depended (567). Latham C.J. dissented on the basis that the bank manager's evidence tended to disprove the witness's explanation of his presence at the scene of the accident (547). He worked from a traditional statement of the rule but gave broad expression to the test of relevance to matters actually in issue:
"The question is whether the truth or falsehood of the
fact of which evidence is sought to be given may
fairly influence the belief of the jury as to a matter
in dispute." (546)
Starke J., also in dissent, referred with approval to the comment of Christian J. in R v Burke (1858) 8 Cox CC 44 at p 53-54 describing the rule as one "of convenience, and not of principle" only broken in upon in cases which would bring the witness into special connection with the party or the subject.
38. The exclusion of evidence to contradict a witness's testimony in cross-examination on matters going to credit is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness. Such evidence is not necessarily excluded because it is logically irrelevant. In the context of a jury trial the first limb of the rationale of the rule may also be expressed in terms of the need to avoid distracting a jury with issues which are not central to the disposition of the case - Ready v Brown [1968] HCA 33; (1968) 118 CLR 165 at 169 (McTiernan J.). That consideration, however, does not apply in civil litigation with a judge sitting alone. The central rationale of the principle, namely confining the scope of litigation, is less consistent with its characterisation as a hard and fast rule of law than as a well established guide to the exercise of judicial regulation of the litigation process. While judges will be astute to confine or prevent exploration of secondary issues affecting credibility, the exercise of the judicial function in that regard should not be encumbered by over nice distinctions between "collateral" and other matters and the application of enumerated exceptions with a flavour of statutory proviso about them. And even where one of the exceptions can be invoked as for example where there is an allegation of bias which is denied "a court would only permit such a diversion from the material issue if it were satisfied that the interests of justice, namely the proper investigation of the material issues, demanded it" - Bakopoulos v General Motors Holden's Ltd [1972] VicRp 85; (1972) VR 732 at 733 (Lush J.).
39. A.A.S. Zuckerman in The Principles of Criminal Evidence - Clarendon (1989) argues that the Hitchcock rule is productive of absurdity and that there has been a tendency in the courts to diverge from the rule when justice so requires (p.98). In the 4th Australian Edition of Cross on Evidence it is said at para.19030 that there are now signs of a more liberal approach to the rebuttal of a witness's denial on a purely collateral matter. R. v Busby (1982) 75 Cr App R 79, was a case in which evidence to rebut a police officer's denial that he had threatened a potential defence witness to prevent him from testifying was rejected at trial. The conviction was quashed on the basis that rebuttal evidence should have been admitted because it went to a fact in issue. Cross observes that this seems contrary to the decision in Harris v Tippett and to most tests for the distinction between credit and issue (para 19030). For an Australian decision along similar lines to that in Busby but antedating it by 56 years, see Collaton v Correll [1926] SAStRp 12; (1926) SASR 87 at 94 (Napier J.).
40. A flexible approach is supported by the recent decision of the Court of Appeal in R. v Funderburk (1990) 2 All ER 482. That case concerned the right to cross-examine the alleged victim of unlawful sexual intercourse on her past sexual experience and to call evidence in rebuttal of her denials. After referring to the established exceptions to the Hitchcock principle, the court said that they demonstrated the obvious proposition that a general rule designed to serve the interests of justice should not be used where, so far from serving those interests it might defeat them (486). The test laid down by Pollock CB in Hitchcock was criticised:
"The difficulty we have in applying that celebrated
test is that it seems to us to be circular. If a fact
is not collateral then clearly you can call evidence
to contradict it, but the so-called test is silent on
how you decide whether that fact is collateral. The
utility of the test may be in the fact that the answer
is an instinctive one based on the prosecutor's and
the court's sense of fair play rather than any
philosophic or analytic process." (491)
As Ligertwood (supra) points out at para 7.77, the credit worthiness of a witness is always indirectly relevant to facts in issue and may be decisive of those facts particularly where the witness is a participant in events to which they relate. It is then difficult to justify, by reference to the credit/issue distinction, disallowing evidence which may rebut such testimony. And it is, with respect, correctly suggested that the test for characterisation of a matter as collateral propounded by Pollock CB reduces to a test of sufficient relevance, a question it may be added peculiarly within the province of the trial judge to determine. The passage cited from Funderburk and the comment in Ligertwood on the collateral matters test and the credit/issue distinction, reflect the observations in 3A Wigmore, Evidence S.1003 (Chadbourne Rev. 1970) that the term "collateral matters" furnishes "a mere epithet not a legal test". Wigmore, however, accepts as a true legal test the question posed by Pollock CB in Hitchcock, whether the fact it is sought to prove in rebuttal could have been shown in evidence for any purpose independently of contradiction. He suggests nevertheless that the sound approach would be to leave the application of the rule largely in the control of the trial court. This, it was pointed out, is the practice in a number of jurisdictions, albeit with statutory support, - eg section 780 of the Evidence Code (1966) of California. This also is the approach favoured by Zuckerman (supra) which concludes at p 104:
"Judges may sensibly continue to assume that evidence
called for the sole purpose of contradicting or
discrediting a witness is on the whole useless, but it
is incumbent on them to exercise their own judgment
when the assumption is reasonably questioned."
41. The Court of Appeal's sympathy with this view and an open approach to the possibility of exceptions to the general rule is evidenced in a further passage from the judgment in Funderburk:
"... we would say that the rules of evidence are to
foster the interest of justice and are made for that
purpose, as we have attempted to indicate. That is
why they impose restrictions on multiplicity of
issues. But as we have also indicated the courts have
evolved various exceptions to that rule under the
categories that we have given. The reason that the
court evolved those exceptions is that, where it is
found that rules designed to promote justice interfere
in any given case with justice, then the court must
look anxiously to see whether this is an exceptional
category of case. It may be that the categories of
exception we have already listed are not closed. It
is impossible to tell the circumstances in which some
problems may arise in the future."
Concerns about the operation of the rule against the admission of evidence to rebut denials in cross-examination as to credibility were expressed by the Australian Law Reform Commission in its Interim Report No. 26 on the Law of Evidence published in 1985 and Report No. 38, published in 1987. While recognising the objectives of keeping trials within manageable limits and avoiding detailed investigation of collateral issues, the Commission considered the rules to be "an artificial and inflexible limitation which may result in the court being misled". It pointed out that evidence which is relevant only because it contradicts the testimony of a witness may have considerable probative value - ALRC - Interim Report 26 - Evidence Vol.1 para 409 p 226. Nevertheless, when it came to making a recommendation the Commission, concerned about the risk of a proliferation of evidence, proposed that the existing exceptions "should be retained but widened" - ALRC - Report 38 - Evidence para.180(c) at p 105 and cls.96 and 99 of the proposed Evidence Bill at pp 176-177.
42. This Court cannot, of course, disregard settled authority on the issue, including the decision of the High Court in Piddington. Nevertheless the Court is not bound to the view that the exclusionary rule is absolute or that the categories of exceptions to it are closed. It is a rule of practice related to the proper management of litigation. A trial judge should not be precluded from determining in an appropriate case that the matter on which a witness's credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted.
43. Ms Natta's credit in the present case was of vital importance not only to the treatment to be given to her testimony concerning the circumstances and sequelae of the accident, but also to the faith that could be reposed in medical opinion based upon histories supplied by her. The fact, if it were the fact, that she had been prepared in 1984 and 1987 to propose the pursuit of a fictitious claim for damages arising out of a staged accident, was a matter the trial judge could properly take into account without embroiling the Court in a multiplicity of peripheral issues. It demonstrated, if true, an approach to the litigation and claim process that called into serious question the extent to which she could be believed in what she told the Court and her doctors in important areas concerning the extent and location of her pain which to a significant degree could not be independently verified. The matter of which Giakoumelos gave evidence was an important one which the trial judge was entitled to inquire into in the interests of justice, whether or not it came within any of the traditional exceptions to the rule against evidence on collateral issues.
44. For these reasons, the evidence of Giakoumelos on the conversations as to the staging of an accident was rightly admitted. As already observed his Honour's assessment of the force of the collision and the likelihood that it gave rise to the claimed injuries was linked to a consideration of Ms Natta's credit and that of other witnesses on these issues. His finding that Giakoumelos' evidence supported the conclusion that the accident was minor and inherently unlikely to have given rise to those injuries was a consequence in part of his findings adverse to her credit and his acceptance of the account of the accident given by Ms Canham. While it may be said that the linkage between his Honour's acceptance of Giakoumelos' evidence and his findings about the accident could have been made more explicit, it is implicit in his reasoning that it was Ms Natta's credibility that forged the connecting link.
Whether the Learned Trial Judge Failed to Consider all the Evidence.
45. The other substantive question raised by the appeal is whether the findings of fact of the learned judge about the relationship between the 1984 accident and Ms Natta's injuries reflected a failure to have regard to medical and other evidence which did not depend upon her credibility. So far as the trial judge's assessment of the evidence before him is concerned, this Court is bound to apply the approach outlined by the High Court in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167. McHugh J., with whom the other members of the Court agreed, said that where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on it unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion (at 178 citing Watt or Thomas v Thomas (1947) AC 484 at 488). The evidence in issue was that of an expert witness concerning the feasibility of an employer providing more extensive supervision of employees to overcome the risk of repetitive strain injury in the workplace. McHugh J. at 179 said:
"As I pointed out in Jones v Hyde ((1989) [1989] HCA 20; 85 ALR 23 at
p 27), when a trial judge resolves a conflict of
evidence between witnesses, the subtle influence of
demeanour on his or her determination cannot be
overlooked. It does not follow that, because her
Honour made no express reference to the demeanour or
credibility of either Professor Ferguson or Mrs
Archer, demeanour or credibility played no part in her
findings on the supervision issue."
46. Although in this case, his Honour made only brief and incomplete reference in his reasons to the extensive medical evidence which has been outlined above, it cannot be inferred that he failed to consider it. As is apparent from the outline much of that evidence depended to a greater or lesser extent upon the information which had been provided to the medical witnesses. And as appears from their cross-examination, particularly that of Doctors Lee and Newcombe, they were prepared to concede that their conclusions would have been different had they been presented with a fuller history of Ms Natta's medical and psychological conditions. Dr. Kitchin's evidence was important on the question of the effect of the 1984 accident in so far as it might have suggested that back pain attributable to the 1975 accident had been cured by the decompression operation carried out in 1983. Again, however, his assessment of the outcome of that operation depended to some extent upon the accuracy of the subsequent history which he had received. It is noteworthy also that when he saw Ms Natta in 1985 no mention was made of the 1984 accident. Dr. Veness who had seen her once in May 1990 did not retreat from his general conclusions about the effect of the 1984 accident. These must be regarded, however, with some caution given the exaggerated description of the accident upon which he had initially based his findings and the limited history to which he had access. If his Honour decided to discount Dr. Veness' opinions in these circumstances, it is not surprising. Dr. Keiller's evidence also was affected by the history which he had been given and there is no reason to suppose that it was not discounted by his Honour for that reason.
47. The main thrust of the argument advanced by counsel for Ms Natta concerned the alleged failure by his Honour to consider the medical evidence. However, having regard to that evidence and applying the general principles enunciated in Abalos v Australian Postal Commission so far as it applies to those medical witnesses who maintained, albeit in a qualified form, their conclusions about the effect of the 1984 accident, the reasons for judgment do not disclose any error in his Honour's approach. Further, his Honour was entitled to draw the conclusion that Ms Natta had not consulted her general practitioner, Dr. Lai, until some 2 weeks after the accident. The fact that Dr. Lai recalled seeing Ms Natta at her home at some time after the accident does not necessarily support the inference that he visited her there at the time she claimed. As to that, his Honour was in a better position than this Court to assess the evidence of Ms Natta and Dr. Lai in the light of the Doctor's notes and draw the conclusion that he did.
48. In conclusion, and for the reasons set out above, the evidence of Giakoumelos was rightly admitted. It went to credit and ultimately to his Honour's rejection of the appellant's version of the accident and its sequelae. Having regard to the trial judge's findings adverse to the credibility of Ms Natta it was unnecessary for him to review medical evidence dependent for its acceptance on histories provided by her. And in so far as his Honour may in any event have been unprepared to accept the testimony of certain of the medical witnesses, that was a judgment he was entitled to make without explicitly referring to it in his reasons for judgment. In the event, the appeal will be dismissed.
# Re Mary Natta
Elaine Margaret Canham \[1991\] FCA 470; 104 ALR 143;
(1991) 32 FCR 282
(1940) 63 CLR 533
(1990) 171 CLR 167
(1968) 118 CLR 165